In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL Page 785 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE Page 787 1 ... Appearances Cont'd 2 IN RE OXBOW CARBON LLC UNITHOLDER LITIGATION : Consolidated : Civil Action No. 12447-VCL MICHAEL B. CARLINSKY, ESQ. JENNIFER J. BARRETT, ESQ. CHAD JOHNSON, ESQ. DAVID ELSBERG, ESQ. COREY WORCESTER, ESQ. SILPA MARURI, ESQ. of the New York Bar Quinn Emanuel Urquhart & Sullivan LLP for Defendants Crestview-Oxbow Acquisition, LLC, Crestview-Oxbow (ERISA) Acquisition, LLC, Crestview Partners, L.P., Crestview Partners GP, L.P., Crestview Advisors, L.L.C., Robert J. Hurst, and Barry S. Volpert 3 4 5 6 7 8 --- 9 DAVID C. McBRIDE, ESQ. ELISABETH S. BRADLEY, ESQ. JAMES M. YOCH, JR., ESQ. MERYEM DEDE, ESQ. Young, Conaway, Stargatt & Taylor LLP for Defendants Eric P. Johnson and Christina Wing O'Donnell -andRUSTY HARDIN, ESQ. JENNIFER E. BREVORKA, ESQ. of the Texas Bar Rusty Hardin & Associates, LLP for Defendant Eric P. Johnson -andMICHAEL P. ANGELINI, ESQ. JOSHUA A. LEWIN, ESQ. LYNETTE PACZKOWSKI, ESQ. of the Massachusetts Bar Bowditch & Dewey, LLP for Defendant Christina Wing O'Donnell 10 Chancery Courtroom No. 12B Leonard L. Williams Justice Center 500 North King Street Wilmington, Delaware Thursday, July 13, 2017 9:15 a.m. --BEFORE: 11 12 13 14 HON. J. TRAVIS LASTER, Vice Chancellor. --- 15 16 17 18 TRIAL TRANSCRIPT - VOLUME IV 19 J. CLAYTON ATHEY, ESQ. Prickett, Jones & Elliott, P.A. -andDALE C. CHRISTENSEN, JR., ESQ. MICHAEL B. WEITMAN, ESQ. of the New York Bar Seward & Kissel LLP for Defendant Load Line Capital LLC 20 21 -----------------------------------------------------CHANCERY COURT REPORTERS Leonard L. Williams Justice Center 500 North King Street - Suite 11400 Wilmington, Delaware 19801 (302) 255-0521 22 23 --- 24 CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct Page 786 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 APPEARANCES: Page 788 WILLIAM I. KOCH, previously duly KENNETH J. NACHBAR, ESQ. RICHARD LI, ESQ. DANIEL T. MENKEN, ESQ. Morris, Nichols, Arsht & Tunnell LLP -andBRETON LEONE-QUICK, ESQ. MICHAEL S. GARDENER, ESQ. GEOFFREY A. FRIEDMAN, ESQ. ELIZABETH JOHNSTON, ESQ. MATHILDA S. MCGEE-TUBB, ESQ. of the Massachusetts Bar Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC for Plaintiff Oxbow Carbon LLC 2 8 Q. Good morning, Mr. Koch. STEPHEN C. NORMAN, ESQ. JACLYN C. LEVY, ESQ. Potter, Anderson & Corroon LLP -andDAVID B. HENNES, ESQ. C. THOMAS BROWN, ESQ. of the New York Bar Ropes & Gray LLP for Plaintiffs Oxbow Carbon & Minerals Holdings, Inc., Ingraham Investments LLC, Oxbow Carbon Investment Company LLC, and William I. Koch 9 A. Good morning. Q. I want to dive back into where we were KEVIN G. ABRAMS, ESQ. MICHAEL A. BARLOW, ESQ. Abrams & Bayliss LLP -andBROCK E. CZESCHIN, ESQ. SARAH GALETTA, ESQ. Richards, Layton & Finger, P.A. -and- affirmed, resumed, and testified further as follows: 3 THE COURT: Welcome back, everyone. 4 MR. LEONE-QUICK: Good morning. 5 THE WITNESS: Good morning. 6 7 DIRECT EXAMINATION (Cont'd) BY MR. LEONE-QUICK: 10 11 yesterday when we left off. 12 If you remember, we had just finished 13 looking at a November 4, 2015, presentation. We had 14 talked a little bit about how Crestview had exercised 15 its put in September. And so I want to focus on this 16 next time frame, from November of 2015 after the 17 presentation and after Crestview had exercised its 18 put. What did the company do from 19 20 20 November 2015 up to January 2016 with respect to the 21 21 put? 22 22 23 Appearances Cont'd ... 24 A. Well, we hired Goldman Sachs to try to 23 go out and raise a lot of money for us. Spent a lot 24 of time talking to a number of potential investors. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (1) Pages 785 - 788 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct 1 Page 789 I've forgotten how many. Goldman Sachs said that they 1 2 came with 60. I remember going to at least two dozen 2 3 meetings or thereabouts. That's all we did. 3 understood the basis for your request, if you see in 4 the -- starting in the second line of his e-mail back 4 Q. I think you testified yesterday that, Page 791 stop the put. Q. And it appears that Mr. Parmelee 5 ultimately, while Goldman was able to solicit a few 5 to you, he says, "As for the list of members, the 6 indications of interest, it wasn't at a price that 6 number of units each has, and I'm assuming you mean 7 would work. Is that right? 7 what each paid for the units, in order to do the 1.5 8 A. No, it wasn't. Not at all. 8 times return, updating the schedule is in process, and 9 Q. So do you recall in January of 2016 9 I will let you know shortly how long it will take to get it ready." 10 whether or not there was a vote with respect to -- by 10 11 the Oxbow board with respect to whether to accept or 11 12 reject the Crestview put? 12 is JX 2099. 13 A. Yes. 14 Q. Mr. Parmelee, who I've always found to 13 14 A. Well, there was a board meeting first to discuss what to do with the put. If you could now turn to Tab 55, which 15 Q. And was that for all directors? 15 be very prompt, within about an hour and a half of 16 A. No. Just the disinterested directors. 16 that e-mail sends you an e-mail with an attachment. 17 Q. And you testified yesterday in your 17 Take a look at that and let me know what you understood that attachment to be. 18 mind you used that term as the non-Crestview and 18 19 non-Load Line appointees. 19 20 A. That's right, yes. 20 21 Q. And what do you recall being discussed 21 22 at that meeting? 23 24 A. A. Yeah. The attachment is a list of -MR. LEONE-QUICK: Your Honor, did I provide 2099? THE COURT: Yes. 22 Well, there were a lot of different opinions on what would be best for the company as well MR. LEONE-QUICK: Thank you. 23 24 A. CHA NCE RY COU RT REP ORT ERS It's an attachment of all the looks CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct 1 Page 790 as what strategy would work best. And there was, as I 1 Page 792 like members with the price paid, the distributions 2 said, a lot of different opinions on it. Actually, it 2 received, and the distributions provided by price 3 was pretty widely diversed, the opinions were. 3 paid. Q. 4 Now, why don't we turn to Tab 54. 4 Q. below a 1.5 number? Does that show any of the members 5 We're in the same exhibit binder. And it's JX 2098. 5 6 Now, this is an e-mail. The bottom e-mail you sent to 6 7 Mr. Parmelee on January 18, 2016. 7 up -- it shows Wyatt 2001 [sic] trust, it shows I guess maybe the first thing is does 8 A. Yes. It shows three. I have to get 8 Ingraham Investment, and it shows Oxbow Carbon 9 reviewing this document refresh your recollection as 9 Investment LLC. 10 to when the vote to reject the put occurred? 10 11 12 Q. And why was it important for you the Take your time and take a look at it. 11 day before there was the board meeting of the This looks like it's just before the 12 disinterested directors to reject the put to have this 13 board meeting, before we were going to address the 13 information to see or confirm what members may or may 14 put. 14 not have been over the 1.5 times threshold? 15 A. Q. And why don't you describe, now that 15 A. Well, just to see what the facts were, 16 you've had a chance to review the document, the type 16 number one, what the reality was, and also to 17 of information you were requesting from Mr. Parmelee 17 determine or have a good basis if we were going to 18 in this e-mail. 18 argue or rely on the 1.5. And it looks like we could 19 rely on the 1.5. 19 A. Yes. I was, again, requesting an Q. And the following day, January 19th, 20 updated list of all the members and their 20 21 distributions and what each member paid so I could do 21 is when the board voted or the disinterested directors 22 a calculation on the 1.5, to see which members would 22 voted to reject the put. Correct? 23 not get the 1.5, and therefore, could potentially stop 23 24 the put. Not the put but the exit sale. Couldn't 24 A. I'm confused between the meeting in which we talked about the put and postponed it to CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (2) Pages 789 - 792 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 793 1 another date. So if you tell me, is this the other 1 Page 795 consistently in 2015. And in '16, although we had a 2 date? 2 puffed up budget, it was looking like it was going to 3 3 go down dramatically. And in fact, it did go down 4 January 19th is a Tuesday. The 18th that year was the 4 dramatically. 5 Martin Luther King holiday, and so I think that was 5 6 the postponement. 6 elected to try and proceed with an exit sale, did you 7 discuss with them engaging investment banks for that 8 process? 7 8 Q. A. I'll represent to you that Okay. So we voted on the put on the 19th. Is that right? Q. Now, after Crestview exercised or 9 Q. That's right. 9 A. Yes. 10 A. Okay. Thank you. 10 Q. Why did you do that if you weren't Q. And do you recall what was discussed 11 11 interested in selling the company? 12 at the January 19th meeting where the put was formally 12 13 rejected? 13 according to the LLC contract, and I didn't want to be in violation of that contract. 14 15 16 17 A. Well, I had a requirement to, A. Yes. 14 Q. And what do you recall from those 15 Q. Did -- 16 A. I wanted to follow the rules of that discussions? A. I recall that Michael McAuliffe was 17 and see where that would lead. Q. Now, what do you recall discussing 18 very much against the ThoughtWorks case strategy, and 18 19 he made a little speech about it, I recall. But I 19 with Crestview about engaging a bank at that point in 20 made a little speech about it in which I said I 20 time? 21 thought, in my own best interest, the ThoughtWorks 21 22 case was the best. I thought it would give the 22 prepare a plan, what they would do, what their fees 23 company a long time to pay the redemption back. We 23 would be, et cetera. And as I recall, I also wanted 24 could still build the company and operate it. We 24 to discuss it with Morgan Stanley as well. A. CHA NCE RY COU RT REP ORT ERS Oh, we discussed it. We asked them to CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct 1 Page 794 wouldn't have to spend a lot of time hassling, but we 1 2 would have a lawsuit. 2 demand, from Crestview that we should go with -- we 3 should go with Goldman Sachs, because they knew the 3 Then I said, however, Bob Popeo was in Page 796 But I got strong advice, almost a 4 favor of a rejection, not the ThoughtWorks case. And 4 company best. And they all said the only two 5 I said I thought about it. I thought about how the 5 companies they would -- investment banking companies 6 other directors felt. I thought -- then I said, I'm 6 they would approve would be either Morgan Stanley or 7 not going to vote for the ThoughtWorks case. I'll 7 Goldman Sachs but they highly preferred Goldman Sachs. 8 vote for the rejection. Because I thought that was my 8 9 duty, to make my decision based upon what was the best 9 directors disclose to you that Michael Carr, the lead 10 interest of the company. 10 banker for Goldman Sachs, had an investment in the 11 Crestview fund through trusts for his children, I believe? 11 Q. And do you recall what happened next? Q. At that time, did the Crestview 12 Did Crestview respond to the company's formal 12 13 rejection of the put? 13 A. 14 A. Yes. 14 Q. Was that -- 15 Q. What was their response? 15 A. That was never discussed. Never A. Their response was they were notifying 16 discussed, never brought up at a board meeting. 17 Eventually, it was brought up at a board meeting and 18 it was kind of snuffed off, fluffed off, by Crestview. 16 17 18 19 us that they were going to sell the company. Q. Were you interested at that point in time in selling the company? 20 A. 21 22 19 Q. Not at all. Was that disclosed at a board meeting before or after Goldman had been engaged? Absolutely not. 20 Q. Why not? 21 A. Oh, no. Far afterwards. A. Well, it was the worst time in the 22 Q. Would that have affected your thinking 23 marketplace. I mean, the market had been going down 23 24 since the fourth quarter of '14. It went down 24 in terms of who to engage as an investment bank? A. CHA NCE RY COU RT REP ORT ERS It would have killed it. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (3) Pages 793 - 796 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 797 1 Q. Why was that? 1 2 A. We didn't want Goldman Sachs to have a 2 MR. LEONE-QUICK: No problem. 3 conflict of interest. If they were tightly tied to 3 4 Crestview, then they'd be doing the bidding for 4 5 Crestview, not the bidding of the company. I mean, 5 6 that's standard. People look after their own 6 copied on it. It's an e-mail from Mr. Johnson to 7 self-interest. 7 Mr. Hurst and Ms. O'Donnell. And it's sent on 8 January 22, 2016, I guess just three days after the January 19th date when the put was rejected. 8 Q. Let's talk a little bit more about -- Page 799 one? THE WITNESS: Sorry. I apologize. BY MR. LEONE-QUICK: Q. So Tab 99, I see, Mr. Koch, you're not 9 well, before we get there, I think this has come out 9 10 in testimony before and it's no surprise. Did the 10 11 company ultimately engage Goldman Sachs as part of the 11 12 exit sale process? 12 writing to Mr. Hurst. And he starts off his e-mail by A. Mm-hmm. Q. And it looks like Mr. Johnson is 13 A. Yes. 13 saying, "In the email that you are drafting to WIK, 14 Q. I want to talk a little bit about how 14 there are a few other positives to using Goldman Sachs 15 that came to be. The documents we're going to look at 15 that you may want to highlight. These positives 16 are now in Volume 3, which is the second binder I 16 include:" 17 believe you have up there. 17 He lists two things but I want to draw 18 your attention to his line after the enumerated second 19 bit but this whole discussion also reminded me that 19 paragraph that reads, "Obviously you don't want to 20 Barry Volpert's son worked for the group that we were 20 oversell 'these' points as Goldman Sachs needs to feel 21 talking to at Morgan Stanley. So when they were 21 like his choice." 22 pushing Morgan Stanley -- and we didn't find that out 22 23 until later. 23 A. Yes. 24 Q. Were you aware of any types of 18 24 A. Q. I'm sorry to interrupt you a little Mr. Koch, do you have Volume 3 there? Do you see that? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 2 3 W. I. Koch - Direct Page 798 A. Excuse me? 1 Page 800 communications between Mr. Johnson, Ms. O'Donnell and Q. Do you have Volume 3? It should be a 2 Crestview at this time about trying to maneuver 3 Goldman Sachs as the selected bank? slimmer volume of exhibits. 4 A. Yes, I do. 4 5 Q. You can probably leave Volume 1 open. 5 Eric had such close communications with Crestview. I suspected he had but I wasn't aware of it. 6 We'll get back to that. I think there's just two 6 7 documents in Volume 3 to talk about this morning. 7 The first one is Tab 99, and that is 8 9 8 JX 2148. A. Q. No. I wasn't. I wasn't aware that Now, if you want to turn back to Tab 98, and that is JX 2168. 9 A. Just so you know, 98 comes before 97. 10 A. Did you say Tab 99? 10 Q. Right. We saw that. 11 Q. Tab 99 in Volume 3, the slim volume. 11 A. That's why I was having a hard time A. I have Volume 3 and Tab 99 but I don't 12 finding it. 13 Q. 12 13 see what's on the screen. 14 Q. You can't see the screen? 14 15 A. No, I can see the screen. I'm sorry. 15 I think we'll be leaving Volume 3 and its vagaries of construction soon. But 99, JX 2168, is an e-mail two days 16 But the Tab 99 that I have is totally different than 16 after the one we looked at between Ms. O'Donnell and 17 the screen. And this is Volume 3. 17 Mr. Johnson. And I'm drawing your attention to the 18 middle e-mail by Mr. Johnson that reads, "Barry 19 doesn't have to play nice if they are smart enough and MR. LEONE-QUICK: Your Honor, may I 18 19 approach? 20 THE COURT: You may. 20 lucky enough to get Goldman Sachs engaged prior to 21 MR. LEONE-QUICK: Thank you. 21 Thursday. I do think they need the ambush approach. 22 THE WITNESS: It's that. 22 Act as though they have zero interest to sell or 23 MR. LEONE-QUICK: There we go. 23 change anything this year. And the second they get 24 THE WITNESS: Did I turn to the wrong 24 the Goldman Sachs deal done, turn on a dime and sell CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (4) Pages 797 - 800 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct 1 hard. 2 3 "Do you know if Hurst sent an e-mail to WIK as discussed Friday afternoon?" 4 W. I. Koch - Direct Page 801 My question for you, Mr. Koch, is were Page 803 1 the second bullet point that reads, "Although it is 2 impossible to predict, we would expect at least a 3-6 3 month period before markets regain their footing based 4 on current conditions." And then there's two sub-bullets or sub-dashes under that. 5 you aware at all of what Mr. Johnson describes in here 5 6 as the "ambush approach"? 6 Do you recall having discussions with 7 A. No, I wasn't. 7 8 Q. Now, let's talk a little bit about the 8 9 communications you actually had with Goldman about 9 six months, even six months to nine months, and even 10 their engagement. We can go back to Volume 1 of the 10 to a year. They said they couldn't predict the 11 binder. And I think we'll go to Exhibit or Tab 56, 11 market. 12 which is Joint Exhibit 2250. 12 Do you recall receiving this document, 13 Goldman Sachs about this issue? A. Yes. They even had told me three to I said, we can't -- even though we're 13 the most knowledgeable in our market, knowledgeable 14 an e-mail attaching a presentation from Goldman on 14 people in our business, we can't even predict what's 15 February 10, 2016? 15 six months or two months from now on prices. So it 16 A. Yes, I do. 16 was quite understandable. 17 Q. All right. And do you recall 17 18 discussing this presentation with Mr. Carr? 19 A. No, I do not have, with Mr. Carr. I But also, he was saying to me and to 18 others that this time period would give a chance for 19 the fog and the rumors to die down. He said there 20 recall sending him an e-mail saying, Please send it to 20 were a lot of rumors out there and a lot of fog out 21 us in time so that we can review it and give you back 21 there that was creating a lot of confusion in the 22 feedback rather than just giving it to us late at 22 marketplace. 23 night and having it as a fait accompli. 23 Q. 24 Got it. 24 Q. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct Page 802 So the language I want to talk about 1 Do you have an understanding of what he meant by fog and rumors? 1 A. Page 804 Yes. 2 with you today starts on page 20 of the presentation, 2 Q. What was that? 3 if you're going to use the regular pages on the 3 A. Well, I think that was referring to 4 PowerPoint. If you're on the Bates number, it's 4 such things as what Crestview were doing, things of 5 91028. 5 what Christina and Eric are doing that were 6 A. Yeah, I have it. Thanks. 6 inconsistent with what I was saying as the CEO of the 7 Q. Now, the square bullet at the top is 7 company. 8 what I want to start with. It reads, "Current market 8 9 conditions are challenging to launch a sale process 9 doing, what point in the process was that conduct 10 for Oxbow." 10 occurring? Do you recall having discussions about 11 12 that topic with Mr. Carr? 13 A. Yes. He was talking about more of the 11 Q. A. And when you describe what they were Well, the Crestview conduct, I'm sure 12 you have more e-mails on what they were doing, but I 13 know what they did at their November, I believe it 14 financial markets or the M&A markets, and I was also 14 was, LP meeting. With all their LPs, they had a 15 talking about how challenging the markets for 15 seminar about what was going on in their business, and 16 petroleum coke were and the markets for the products 16 they'd have a dinner afterwards. 17 of companies that use petroleum coke, such as steel, 17 18 aluminum, cement, et cetera. And what we heard was that Barry got 18 up and said, We're either going to get paid by such Does it sound like it's fair to say 19 and such a date or we're going to sell the company. 20 that you had agreement with Mr. Carr on that bullet 20 21 point? 21 That's killing any financial manner -- or financing, 22 that people will just wait until -- as I said, about 23 eleven companies, private equity companies, have 24 suddenly -- we called them, and they said they're not Q. 19 22 23 24 A. Yes. The whole world looked challenging to us. Q. Now, I want to draw your attention to And Michael Carr basically said, CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (5) Pages 801 - 804 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct 1 1 interested, because of it. 2 W. I. Koch - Direct Page 805 Then we heard a rumor that we believe Page 807 an engagement letter. 2 Q. I think that was for the minority 3 Christina spread that was saying -- she was saying 3 4 somebody said -- blamed it on someone else, that 4 A. Yes, that's right. 5 someone said, Don't offer to buy a minority interest 5 Q. And did you engage them again for the 6 now. Just wait three or four months and you can buy 6 exit sale? Was that a separate engagement, do you 7 the whole company much cheaper. 7 recall? 8 8 Then on top of that, Eric and financing. Right? A. It was a separate engagement. I must 9 Christina were saying, Bill's going to sell down 9 admit, I took their time limits, and there's no real 10 between less than 50 percent. You and Crestview can 10 hurry if we're going to take three to six months. So 11 get control of it together. So there's -- 11 let's take our time and get everything in place so 12 when and if the markets improve, we could go out in a 13 full-court press. Q. 12 13 14 15 Q. I believe we talked a little bit about that yesterday. Is that right? A. Yes. 14 Q. Now, all of this conduct that you're Do you recall if anyone from Crestview 15 or Load Line ever objected to this proposed three- to 16 describing as being the fog and rumors, I just want to 16 six-month pause? 17 wrap that up by drawing your attention to the second 17 18 dash below the second block bullet point that reads, 18 full-court press immediately, even though the market 19 "This period" -- I think meaning this pause period -- 19 was terrible. 20 "will also allow the M&A markets to reset regarding 20 21 the prior M&A process." 21 engagement process in February/March of 2016 for the 22 exit sale, was Mintz Levin involved at all in that 23 process? Was it your understanding that that 22 23 24 was a reference to what you just described? A. 24 I thought it was. A. Q. 3 Yes, it was. CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 2 Now, as part of the Goldman Sachs A. CHA NCE RY COU RT REP ORT ERS 1 They ignored it. And they wanted a W. I. Koch - Direct Page 806 Page 808 Q. And -- 1 Q. What did they do on behalf of Oxbow? A. Sometimes who knows what investment 2 A. Well, they did a number of things. 3 Q. I'll just focus on the engagement of bankers really say, but that's what I thought. Now, Mr. Koch, this presentation 4 5 talked about the state of Oxbow's markets, the state 5 6 of the markets in general, in early 2016. What 6 7 actually happened to Oxbow's markets after that point 7 Q. Yeah. 8 in time? Did they improve or continue to deteriorate? 8 A. Because I said they did a number and I 4 9 Q. A. Oh, no. 2016 was one of the worst Goldman Sachs. A. I'm sorry. I was trying to get my thoughts together. 9 was trying to figure out which one to say first. I 10 years we had in a long time. Markets went down 10 guess the first thing they did was work on the 11 greatly. China stopped importing. In fact, China 11 engagement letter with Goldman Sachs. 12 stopped importing and started exporting the calcined 12 13 and petroleum coke that we make and sell to Europe. 13 a little bit. And so why don't we turn to Tab 58. 14 So it really hurt that business. 14 It's JX 2304. And this is an e-mail from Mr. Kelly at 15 Mintz Levin to you on February 23, 2016. And it looks 15 The demand for petroleum coke had gone Q. All right. I want to talk about that 16 way down. It happened just about all over the world. 16 like there's some attachments, maybe some Goldman 17 In fact, some people said it was a depression in the 17 Sachs engagement letters that are being marked up. I 18 energy business. The price of natural gas went down. 18 just want to ask you about a couple of things on the 19 The price of oil went down. It was a real tough time. 19 face of this e-mail. 20 Q. Do you recall after this February 10th The fourth paragraph down, if you can 20 21 presentation we were looking at engaging Goldman Sachs 21 take a look at that, and I'll read the first couple 22 at some point in time? 22 sentences just to orient you, Mr. Kelly writes, "This 23 revision also says in brackets that Goldman's fee 24 increases as a percentage of per Unit value received 23 24 A. Well, shortly after -- some time in there, we did engage them. In late 2015, we did sign CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (6) Pages 805 - 808 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 809 1 above a threshold of $190/Unit. Goldman had suggested 1 2 $169/Unit. This upward revision to $190/Unit was 2 3 intended for two purposes ...," and then it lists two 3 4 enumerated purposes, I guess. 4 to reads, "(2) to cover without broadcasting it at 5 6 7 Page 811 payment if there was only a minority -A. Yes. Yes. Q. Now, the second purpose I want to turn Do you see those? 5 this time that the sale price will need to be above A. Yes, I do. 6 $169/Unit in order for holders of Units to net at Q. So I want to take those one at a time 7 least $169/Unit as is required for such an Exit Sale 8 because it would be a mouthful to cover them all at 8 (not to mention the extra amounts needed to assure all 9 once. But the first one reads, "(1) to reward and 9 holder will get at least 1.5 times their respective 10 incentivize outperformance above an appropriate 10 investments)." 11 threshold ...." 11 12 12 A. Yes, I do. Q. Do you recall having an understanding 13 A. Yes. 13 14 Q. Did you have an understanding of what 14 15 Do you see that language? Do you see that language? that language meant? of that language at that time? 15 A. I didn't have a complete understanding 16 A. Yes. 16 of it because it was inconsistent with what I knew all 17 Q. What's that? 17 along: everybody had to get the same. This wouldn't A. The appropriate threshold -- the first 18 allow them to get the same. 18 19 threshold would be the fair market value, which is the 19 20 169. And Crestview was basically saying they didn't 20 doing here. To me, if you're going to sell at 169 for 21 care -- they didn't have an obligation to get the 21 the 1.5 or 190 for the 1.5, you've got to sell it to 22 highest possible price. 22 everybody for 190. Everybody had to get the same. So 23 this caused me some confusion and to bring it up to 24 Bob. 23 24 Of course, if we were selling some units on a minority basis, we wanted to get the And I didn't know what Rich Kelly was CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct 1 Page 810 highest possible price, because that would be less 1 2 dilution to us, you know. 2 Mintz Levin ever advise Oxbow that an additional 3 payment like this was required by the LLC agreement? 3 And one thing is that they could get Q. Page 812 Now, as far as you know, did anyone at 4 190 and we could -- I doubt this would happen but 4 5 maybe it was a dream -- if we got 190, then we could 5 thought it was an exception, but I said, Bob, we can't 6 say, Crestview, okay, you have to sell us at 169, so 6 have any exceptions here. What the hell is going on? 7 we'd make some money on that. 7 You know. Please get your act straight and tell me A. 8 I mean, maybe that was just a dream, 8 what it is. 9 but it would be an interesting conversation with them. 9 Q. Q. Now, at this time, were you aware of 10 any internal Oxbow analysis suggesting that an 11 first purpose for setting the Goldman Sachs threshold 11 additional payment or top-off payment would be allowed 12 for the incentive performance fee at 190 above the 12 or permitted under the LLC agreement? 13 169? 13 A. 14 Q. Was there any? 15 A. What? Q. Was there any internal analysis by 10 14 15 A. So is that your understanding of that No. I think some people may have Sorry. I mean, that was my percentage of it, or my understanding of it. 16 Also my understanding of it was that 16 17 Crestview had said very, very strongly, We're not 17 18 going to sell a penny below 190. 18 19 So I was trying to get Goldman to say, 19 20 Let's work on a minority process simultaneously with 20 21 selling the whole company. 21 22 Q. Do you know if the Goldman Sachs 22 Yes. Oxbow on that point? A. Well, there was calculations on what was the shortfall to the 1.5 people. Q. And we'll talk about those in a little bit. Are you referring to the ones Jim Freney did? A. Yes. And then Goldman Sachs took that 23 letter that you ultimately executed on behalf of Oxbow 23 and tried to justify doing a deal based upon that 24 for the exit sale process also provided for a fee 24 analysis. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (7) Pages 809 - 812 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct Q. 1 W. I. Koch - Direct Page 813 I think we'll get to those documents 1 Page 815 solve this mystery a bit. 2 shortly. They're in March. I just want to orient you 2 A. 3 back to February 2016. 3 Q. Yes. And that's JX 2372. 4 A. I got it. Q. Now, we're looking at an e-mail one Are you aware of any analyses in 4 5 February 2016? 5 78? No. 6 day before the one that you, Mr. Volpert, and Q. Relating to that additional payment? 7 Mr. Coumantaros received, and it's from a A. No, I wasn't. 8 tevans@arclight. Q. Now, you mentioned earlier that 9 A. Mm-hmm. Q. Did you know a T. Evans at ArcLight? 6 A. 7 8 9 10 Goldman Sachs had recommended a three- to six-month 10 11 pause and that you engaged Goldman Sachs. Did that 11 12 three to six-month pause occur? 12 Does that sound familiar? A. I think it was Tom Evans but I 13 A. No. 13 don't -- that's just a guess. I met an Evans there. 14 Q. Why is that? 14 I just don't remember his first name. A. Q. And it's to Mr. Hurst, Mr. Volpert, Well, Crestview solicited our plight 15 16 to make a bid. Even though they denied it, they did 16 copying Mr. Crosby and Mr. Poole, "Barry/Bob, Attached 17 solicit it. 17 is our letter of intent to acquire Oxbow -- feel free 18 to reach out with any questions. Best." 15 18 Q. 19 to Tab 59, JX 2379. Let's talk about that a bit. Let's go Mr. Koch, this is an e-mail from Kevin 20 Then you see there is a March 15th 19 20 letter here that's attached. Strangely, it's 21 Crosby. I think we talked yesterday how he was from 21 addressed to Oxbow Carbon. It isn't an e-mail to 22 ArcLight. It's to you, Mr. Volpert, and it looks like 22 Oxbow Carbon. 23 an e-mail address inverlocky@sostar.com. Do you know 23 24 who that e-mail belongs to? 24 But in any event, were you aware that Crestview had received this copy of this letter of CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 2 A. I think that belongs to John Coumantaros. 3 Q. W. I. Koch - Direct Page 814 Okay. Now, this e-mail from 1 intent on March 15, the day before the one you 2 received? Page 816 3 A. No, I wasn't. Q. Let's go to Tab 79, JX 0079. And this 4 Mr. Crosby attaches a March 16, 2016, letter addressed 4 5 to you as a representative of OCMHI, Load Line and 5 is an e-mail from Mr. Volpert to Mr. Crosby. Do you 6 Crestview. Now, at the time, did you have an 6 see that? 7 understanding of how ArcLight came to submit this 7 A. Yes. Is that JX 2377? 8 letter? 8 Q. Yes. I may be on the wrong tab. If I 9 10 A. later at a board meeting. Q. 11 12 And what did you find out at that board meeting? 13 14 No, I didn't. I found out a little A. I asked Barry Volpert how this letter misspoke, I apologize. 10 A. No, I think it was -- 11 Q. I got the tab number right. I got the 12 JX number wrong. So it's, yes, 2377. And this is an 13 e-mail between Mr. Volpert and Mr. Crosby. I want to draw your attention to the 14 came about. 15 9 Q. Do you recall what he said? 15 March 16th 10:11 a.m. e-mail from Mr. Volpert. He A. Yes. He just said he ran into Dan 16 writes, "Kevin, Thanks for the call and letter. Here 17 Revers at a Harvard function and they still expressed 17 are the contact details for the three leading 18 interest in Oxbow. That was it. That was all he 18 shareholders. I think the letter should be addressed 19 said. 19 to the three of us instead of the company." 16 20 Q. Did he disclose anything else about Do you see that? 20 21 communications with ArcLight prior to March 16th with 21 A. Yes, I do. 22 respect to this letter? 22 Q. And were you aware of this 23 A. Not a word. 23 communication on March 16th at 2:18 p.m., which I 24 Q. Why don't we turn to 78. We'll try to 24 believe is just slightly before the time when you CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (8) Pages 813 - 816 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 817 1 received what's in Tab 59, the letter from Mr. Crosby 1 2 sent at 3:54 p.m.? 2 disclosure that Mr. Volpert made about running into 3 Mr. Revers at a Harvard event. Did Crestview ever 4 disclose to you that Ms. O'Donnell had arranged an 5 introduction between Mr. Crosby and Mr. Volpert? 3 4 5 A. At this time, I was not aware of it. I only saw this in discovery. Q. All right. Now, Mr. Koch, in this 6 litigation, were you able to listen in on the 6 7 deposition of Mr. Crosby, the ArcLight 30(b)(6) 7 8 witness? 8 9 10 11 12 13 A. I listened in maybe, I think, for five minutes or something. Q. Are you aware that he lied under oath about this instruction he received from Mr. Volpert? A. Well, I also read his deposition, and Q. Page 819 Now, you testified earlier about the A. Not at all. Q. And at this time, on March 16th, was Ms. O'Donnell still on the Oxbow board? 9 A. No. 10 Q. Do you remember when you had removed 12 A. Yes. February 1, 2016. 13 Q. Did you have any idea that during this 11 her? 14 it looked like he lied throughout the entire 14 time frame she was communicating with anyone about 15 deposition. He didn't even know his own handwriting. 15 Oxbow business, including the exit sale? 16 Q. So for everyone's benefit, if we could 16 A. I had no idea what she was doing. Q. Are you aware that she -- did anyone 17 cue up KC 1. And the reference in here to Exhibit 24 17 18 I believe is the March 15th e-mail that just went to 18 disclose to you, Ms. O'Donnell, Crestview, anyone, 19 Crestview. 19 that Ms. O'Donnell, you know, arranged the meeting 20 between Mr. Volpert and ArcLight and actually set that meeting up? "Question: 20 Do you know why ArcLight 21 on March 16th sent a letter of intent to acquire Oxbow 21 22 Carbon LLC to Oxbow Carbon & Minerals Holdings, Inc.; 22 A. No, they didn't. 23 Load Line Capital LLC; and Crestview-Oxbow 23 Q. Did Crestview ever tell you that they 24 Acquisition, LLC? 24 were communicating with Ms. O'Donnell about ArcLight CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct Page 818 "Answer: I think Goldman requested 1 2 that we redraft our letter to all of the shareholders. 3 4 "Question: on Exhibit 24? 5 6 7 But Goldman wasn't copied W. I. Koch - Direct 1 Page 820 or the exit sale process? 2 A. Not at all. No way. 3 Q. Did Crestview ever tell you that 4 Ms. O'Donnell sent them the NDA that Oxbow and "Answer: Correct. 5 ArcLight had executed earlier in connection with the "Question: 6 minority financing process? Did you send Goldman separately Exhibit 24 on March 15th? 7 A. No. Q. Did you authorize Ms. O'Donnell to 8 "Answer: Not to my knowledge, no. 8 9 "Question: 9 But you recall receiving send that to Crestview? 10 communication from Goldman some point after you sent 10 A. No. 11 this on March 15, 2016, at 8:37 p.m. in the evening to 11 Q. Did you consider that NDA confidential 12 send it the following day with these new recipients? 12 13 14 "Answer: Correct." 13 All right. Now, Mr. Koch, do you have 14 company information? A. Absolutely. Q. Did you know that Ms. O'Donnell still 15 any idea why Mr. Crosby would lie under oath about his 15 had that kind of confidential company information 16 communications with Crestview prior to submitting the 16 after being removed from the board? 17 March 16th letter to you? 17 18 A. She assured us that she turned Well, I think it was fairly obvious. 18 everything over to us except her computer. And she 19 He was trying to avoid that he was scheming with 19 refused to give that to us. 20 Crestview. 20 21 A. Q. Now, let's turn back to the letter you 21 Q. Let's turn back to 59 here. I want to talk a little bit about the letter. 22 actually received from ArcLight. And that's back to 22 23 Tab 59, JX 2379. 23 under subheading A, "Valuation and Assumptions," the 24 valuation and assumptions here identifies a 176.59 24 A. Yeah. I've got it. Thank you. Now, the first page of the letter CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (9) Pages 817 - 820 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct 1 2 3 W. I. Koch - Direct Page 821 per-unit price. Do you see that? A. No, I hadn't. Q. Had you requested Mr. Freney to A. Yes. 2 Q. Now, just as a matter of pure math, on 3 4 its face alone, this was higher than the 169 fair 4 5 market value determined by Moelis. Right? 5 6 7 8 conduct this type of specific shortfall analysis? A. No, because I didn't believe it was applicable to the LLC agreement. A. Yeah. On its face, it is. 6 Q. Did you ask anyone to investigate or 7 reaction was when you received this analysis from 8 Mr. Freney. analyze this issue further? Page 823 1 Q. Why don't you tell us about what your 9 A. Yes, I did. 9 10 Q. Who did you ask? 10 said, Is this assumption that Jim is making valid or 11 A. Jim Freney. 11 is it just to get the 169, or the 175 below the 169? 12 Q. What did you tell Mr. Freney to do? 12 And I said, Please do an analysis on it. Or is this 13 A. Well, look at this. Look at what 13 an exception? You know. Do a detailed analysis on it for us. 14 deductions that ArcLight has to pay or is offering to 14 15 pay, and look at what deductions we would -- that 15 16 you'd think would be reasonable and also would bring 16 17 this down. 17 18 Q. Did you have an understanding of what A. Q. Well, I sent this to Bob Popeo and Did you have an opinion at that time as to whether this was something that could be done? A. No. I mean, I did. Yes, I did, 18 because it would violate the basic premise that all 19 some of those deductions would be, from your 19 members are treated equally and all distributions go 20 perspective? 20 out equally on a pro rata basis, and this would 21 violate that. 21 22 23 24 A. Oh, yeah. Investment banking fees, Q. Q. 22 legal fees, finder's fees, if there were any. Now, why did you want Mr. Freney to focus on the fair market value threshold at this time? 23 24 A. CHA NCE RY COU RT REP ORT ERS A. Well, he looked at it and -CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 What did Mr. Popeo tell you in response after you made that request to him? Page 822 Well, because if it didn't pass the W. I. Koch - Direct 1 2 free market threshold, it was moot. We could reject 2 3 the offer without any problem. 3 Q. Page 824 We'll get into that. Did he tell you he would look into it? I should have been a little more specific. 4 Q. And let's turn to Tab 61. 4 5 A. Mm-hmm. 5 What the hell are you telling me here now? Or it's 6 Q. Sorry, Your Honor. It's JX 2459. 6 being told. Look into it. All right. Mr. Koch, this is an 7 7 A. Yeah. Yeah. I said something like, Q. And did Mr. Popeo agree to look into A. Yeah, he did. I think he pushed back it? 8 e-mail from Mr. Freney. I don't need to ask you about 8 9 the entire e-mail chain. I just want to ask you about 9 10 the very top where Mr. Freney is addressing "Team." 10 11 He writes, "Attached is the analysis supporting the 11 12 27.9 million required to ensure that all unit holders 12 e-mail from Mr. Freney telling him, Hey, look, this 13 achieve a minimum 1.5x their aggregate capital 13 doesn't sound right. You shouldn't be making this 14 contributions." 14 assumption? 15 Do you see that language? 15 a little bit at my language, but he looked into it. Q. A. Now, do you recall responding to this No. I just said, you know -- I don't 16 A. Yes. 16 even know if I even said to him, I'm going to let the 17 Q. What did you understand Mr. Freney to 17 lawyers look at this. This is not -- this is a legal 18 issue. It's not a business issue. Or it's a business 19 issue but it was more of a legal issue than anything else. 18 19 be doing here? A. When I looked at it, he was 20 calculating the shortfall that Ingraham and OCIC would 20 21 require for them to meet a 1.5 times threshold. 21 22 Q. And had you discussed this type of Q. Now, are you aware of other e-mails 22 from around this time that make reference to this $27.9 million number? 23 deduction or assumption with Mr. Freney prior to 23 24 receiving his calculation? 24 A. CHA NCE RY COU RT REP ORT ERS Yes. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (10) Pages 821 - 824 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct 1 Q. W. I. Koch - Direct Page 825 Do you recall responding to any of 1 Page 827 of it. And I must have gotten it at the same time I was writing this and pressing the Send button. 2 those, saying, Hey, this doesn't sound like a valid 2 3 assumption. We should cut this analysis out? 3 4 5 6 A. I didn't respond to that at that time because I was waiting on Bob's analysis. Q. All right. Let's turn forward a Q. We're going to talk about that 4 shortly, but maybe just to tie the proximity together, 5 if you want to just flip quickly to Tab 64, which also 6 is, luckily, 2503 as the Joint Exhibit. 7 couple of days, from March 21st to March 25th. Tab 7 A. Yes. 8 63, which is JX 2502. 8 Q. And is that what you're referring to? 9 A. Mm-hmm. 9 It's an e-mail I sent to you on Friday, the same 10 Q. Now, Mr. Koch, this is an e-mail you 10 Friday night, 10:22 p.m. 11 sent to Mr. Rosow, Mr. Callahan, Mr. Garges and 11 12 Mr. Morse, March 25. It's marked as 10:22 p.m. Do 12 So I was right -- I guessed it right, 22 seconds ahead 13 you see that? 13 of my e-mail going out. 14 A. A. Yes. 14 Q. Q. At 10:22:02. And this was 10:22:28. So let's turn back to Tab 63 just for And who are those individuals? I 15 a moment. 16 think we know most of them but do those individuals 16 A. Yes. 17 consist of a group? 17 Q. And one more question on this, and 15 18 that is, there's some language here that reads in the 19 it was a group that I appointed and that were outside 19 middle of that first paragraph, a couple of sentences 20 Crestview and Load Line's appointees. Peter Morse was 20 up from the bottom, "The Agreement requires ...." 21 a new person who we took on when I got rid of 21 22 Christina. 22 A. Yes. 23 Q. 23 Q. "The Agreement requires that all 18 24 A. Yes. They were -- to put it simply, All right. Now, what was the purpose of you sending this e-mail to the OCMHI-appointed 24 Do you see that? members receive at least $169/unit while other members CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 2 W. I. Koch - Direct Page 826 directors this Friday night? 1 are required to receive additional funds which will Page 828 2 bring their returns to 1.5 times their original 3 call very soon. I think it was on Monday. I'm not 3 investments." 4 sure. And there were two issues that I wanted to 4 5 point out to them. The issue was the 169 and the 5 with that sentence that a top-off right or payment was 6 issue was 1.5. And they should be aware of that, that 6 permissible under the LLC agreement? 7 those issues were going to come up in the board call. 7 8 A. Q. Well, we were going to have a board Now, again, this is another 8 Mr. Koch, were you intending to convey A. No. And I think the key words there are "at least." 9 communication. Is there anything in here where you're 9 10 providing your thoughts one way or the other on how 10 which we had just looked at, JX 2503. We went over 11 the 1.5 works? 11 the time proximity between these two exhibits, but to 12 make sure there's no confusion, had you had an 12 A. No. If I had done that, Q. All right. Let's go on to Tab 64, 13 unfortunately, I would have written a long article or 13 opportunity to review this e-mail that I sent you and 14 a long dissertation on it. 14 the attachment before sending your e-mail out to the 15 Q. And do you recall -- 15 directors, the OCMHI directors? 16 A. Excuse me. And I was really trying to 16 A. I would have changed it. Q. All right. So let's look at this 17 be -- which is somewhat rare for me -- to be more 17 18 efficient in my writing, because I knew Bob was going 18 draft, and I want to look at, it's about seven pages 19 to write a long dissertation on it. 19 in on the letter I believe, and I'll give you the 20 Bates number. It's 365401. 20 Q. Now, you received Mintz Levin's advice 21 on this additional payment idea by the time you sent 21 A. I have it. 22 this e-mail out? 22 Q. All right. And drawing your attention 23 24 A. I got it, as I recall, maybe 26 seconds before this e-mail was sent out, or his draft 23 to the top full paragraph, it reads, "And finally, an 24 Exit Sale cannot occur unless Members receive 1.5 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (11) Pages 825 - 828 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 829 1 times their aggregate Capital Contribution from the 1 2 proceeds of the Exit Sale or waive their rights to 2 3 receive such consideration." 3 4 It then provides a quote from Section A. Yes. Q. Did you understand this paragraph to 4 be responding to your request to Mr. Popeo to look 5 8(e), which I won't read, but then going to the 5 into this additional payment idea that was in 6 following paragraph, it states, "If any Member would 6 Mr. Freney's analysis? 7 not receive 1.5 times that Member's aggregate Capital 7 8 Contribution, that Member cannot be forced to 8 9 participate in an Exit Sale, which by definition, can 9 10 only occur with that Member's participation." 10 11 Now, we've testified a bunch about, or Page 831 Do you see that? A. Yeah. He gave me his analysis, which reconfirmed my understanding. Q. Do you know if you authorized a final version of this letter to go out? 11 A. Yes, I did. 12 you did yesterday, about a lot of communications you 12 Q. Let's turn to Tab 65. And let us know 13 had with Mintz Levin throughout 2015. Is that 13 if this appears to be the final version that you 14 conclusion consistent with your discussions? 14 authorized be sent. 15 A. Yes, it is. 15 A. Yes, it does. 16 Q. And how does that conclusion compare 16 Q. Now, Mr. Koch, I think you testified 17 to your understanding of how the exit sale conditions 17 yesterday, and it's been testified before by others, 18 worked based on the plain language you negotiated in 18 that you eventually initiated litigation against 19 '07? 19 Crestview on June 10, 2016. Right? 20 A. Well, if you break it all down, the 20 A. Yes, I did. Q. And can you just tell us, please, why 21 exit sale, and if you could get through all this legal 21 22 gobbledegook, the exit sale has a number of different 22 23 criteria. It has to be all, not less than all. It 23 24 has to be fair market value or better. And it has to 24 you finally decided to file the lawsuit on June 10th? A. Well, I had one prepared in case we needed it. And I knew Barry was very aggressive at CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct 1 Page 830 allow everybody to get 1.5. It has to make sure that 1 Page 832 threatening a lawsuit. And during the meeting, he 2 everybody is paid the same terms and conditions, 2 was -- he made some very strong statements. He said, 3 including price. And, lastly, the funds that go into 3 We have a clear path to liquidity. We're going to 4 the exit sale calculation are distributions as well as 4 take it. If we have to, we're going to file a lawsuit 5 proceeds from the sale. 5 to take it. And we're going to direct the whole 6 program and we're going to sell the company. 6 Being an engineer, you like to write 7 things down very simply rather than have to go back to 7 8 one section, to another, to another. I'm sorry. I'm 8 sue us, you know, if we didn't agree with him by 9 expressing my bias. 9 Tuesday of the next week. 10 Q. 11 And as I said, he said he was going to It's all right. 10 Now, the next paragraph starts off by 11 heard him say it a number of times, or similar things, So when I heard him say that, and I 12 stating, "While it has earlier been suggested that one 12 with the tone in his voice and the conviction that he 13 possible solution would be to have extra proceeds from 13 had, I knew he was very, very serious, so I pressed a 14 the Exit Sale be directed to such Members so that they 14 text button to say, File the lawsuit. 15 proceeds they receive hit the 1.5x threshold. The LLC 15 16 Agreement, however, forecloses this possible 16 of the room. I walked out of the room to go to the 17 solution." 17 bathroom. I didn't walk out of the room to call 18 anybody. I made a text message. 18 And then passing down to the final Barry got it wrong. I didn't walk out 19 sentence, it reads, "Accordingly, the proceeds from 19 20 any Exit Sale are required to be distributed in 20 this and you did too. This was during the board Q. I think Mr. Volpert testified about 21 accordance with the Members' Percentage Interests, and 21 meeting that you attended on -- 22 so it is not possible under the LLC Agreement to 22 23 provide more proceeds from an Exit Sale to enable any 23 24 Member to meet the 1.5x threshold." 24 (overlapping speakers) A. That was at a board meeting in our boardroom in West Palm Beach. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (12) Pages 829 - 832 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct 1 Q. W. I. Koch - Direct Page 833 Mr. Koch, I want to talk briefly about 1 Page 835 had one of our other guys start doing a probability analysis for us on it. 2 Mr. Johnson. There's been some testimony already 2 3 about your relationship with him and his performance 3 4 as an employee of Oxbow. So I want to run through a 4 said -- I called up the Canadian people and said, We 5 few things quickly just so that you can provide your 5 read your contract. We want to -- we'll sign that 6 story on some of the earlier testimony. 6 contract but we'll up the price. So we got into a 7 little bidding war with Rain and we finally won it. When did Mr. Johnson first start 7 8 9 10 11 12 13 working for Oxbow? Do you remember? A. 8 He came over with AIMCORE, and that was I believe sometime in 2002 or '3. Q. And do you remember what his position was when he first started working at Oxbow? A. Yes. He was in charge of a small And then I said -- I took it over and Q. Now, you mentioned some analyses 9 Mr. Johnson did for you. I don't know if you covered 10 this. Did you have an understanding of Mr. Johnson's 11 background? Was it in finance? Was it in sales? Was 12 it in marketing? Did you have an understanding at the 13 time on where his experience lay? 14 business unit called -- we called it calcined 14 15 petroleum coke. 15 financial analysis when he was working at Koch 16 Q. 16 Industries. Then he worked for an aluminum company, 17 and I believe he was running a smelter or doing 17 And did you have much direct interaction with him then? A. Well, he told me he had done some I had very little. He was working for 18 something in a smelter. A smelter makes aluminum from 19 a fellow by the name of Brian Acton at the time, who 19 bauxite and it uses petroleum coke to remove the 20 had been chief operating officer of Oxbow Carbon or 20 oxygen in the aluminum oxide. 21 Oxbow Carbon & Minerals, yes. 21 18 A. Q. Now, did there come a point in time Then he went to work for AIMCORE, 22 which was developing a calcined -- they had no 23 when you started to have more interactions with 23 facilities but they had an investment in a small 24 Mr. Johnson? 24 company -- not a small company -- in a calciner in 22 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 A. Page 834 Yes. Mr. Johnson came up with the W. I. Koch - Direct 1 Page 836 Kuwait. And AIMCORE had the marketing rights of that Kuwait, but they had a very small investment in it. 2 idea of buying Great Lakes Carbon, and he brought it 2 3 to me. And I said, This sounds great. Let's do some 3 4 analysis on it so we can understand it, who the 4 But I found out he was a terrific salesman but he 5 customers are, why they buy, what competitive 5 wasn't that great on analysis, at least the way I like 6 advantage we would have, what kind of returns we would 6 to analyze things. And I admit I had too much 7 get on our investment. 7 training at MIT on it. 8 Actually, Great Lakes Carbon, at that And so I asked him to do the analysis. 8 And so, as I said, we did a final 9 time -- it's an interesting aside, but it was started 9 analysis on it, and then I started dealing with the 10 by the Skakel family. That was a source of Ethel 10 guys to -- the lawyers and the Canadian trust to buy 11 Kennedy's wealth. Then they sold it to a private 11 the company. 12 equity guy who stripped it down, and then he sold it 12 13 to a Canadian trust. And the Canadian trust had 13 14 gotten an offer from one of our competitors called 14 15 Rain. And Rain was in India. 15 Lakes Carbon, which greatly increased his 16 Q. Now, at some point in time, was Mr. Johnson promoted at Oxbow? A. Well, I put him in charge of Great 16 responsibility. And he did a very good job of 17 Canadian trust has a fiduciary obligation -- even 17 analyzing it. 18 though they got a contract with Rain, the Canadian 18 19 trust had a fiduciary obligation to entertain a higher 19 from marketing. It's the old saying, if you put a 20 bid. And the Canadian trust was public. 20 brain surgeon in charge of a hospital, you'll not only 21 And we looked at it and said, Well, a I also tried to separate operations 21 ruin the hospital, you'll ruin a brain surgeon. So 22 analysis. I found that it wasn't as sufficient as I 22 you try to put the right guy in the right spot. And 23 wanted or as thorough, so I asked Jim Freney at 23 marketers are generally not good operators. 24 Callisto to do a more detailed analysis. And then I 24 So I had Eric do a lot of detailed CHA NCE RY COU RT REP ORT ERS So I had Steve Fried find an operator CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (13) Pages 833 - 836 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct 1 Page 837 that could operate the plants. And Eric Johnson then 1 2 was in charge of the marketing of it, on the 2 3 commercial aspects. And the commercial aspects meant 3 4 buying petroleum coke as well and then giving it to 4 heard testimony about how you were on a flight both 5 the operator to put it through a huge kiln, heat it 5 with this other Erik, Mr. Fyrwald -- is that correct? 6 up, and then drive off the volatiles, re-crystalize 6 7 the carbon, and then make the product that would go 7 8 into making anodes for the reduction of aluminum 8 West Palm Beach. Can you tell us a little bit about 9 oxide. 9 how that came about? 10 11 12 13 14 15 And Eric's job, then, was to sell the end product. And he did a terrific job at that. Q. At some point in time did he become the chief commercial officer for Oxbow? 10 Page 839 earlier? A. Yes. Q. And I think earlier this week, you A. Yes. Q. -- and Mr. Johnson from Houston to A. Well, Christina -- actually, it came 11 about because on my property on Cape Cod, I had a 12 guesthouse, and Erik's sister rented it. And she 13 changed her opinion and let -- A. Yes, he did. 14 Q. Sorry. This is Mr. Fyrwald? Q. At some point after that, did he 15 A. Yeah, Fyrwald. 16 become one of your appointees to the board of 16 17 directors? 17 Fyrwald, handle it. And he wanted to use my swimming And so she let her brother, Erik 18 A. Yes, he did. 18 pool because he was training for a mini-triathlon or 19 Q. Why did you decide to appoint him to 19 something. And I said, Great. 20 the board? 21 A. 20 Well, Steve Fried, who was our chief And I got to talking to him. And he 21 was running a chemical company and doing a very good 22 operating officer and head of corporate development, 22 job. He had a lot of characteristics that I thought 23 wanted to retire, or he retired, so he could do -- he 23 were good for an executive. He was very smooth, very 24 loved doing triathlons. And he and I had a few 24 practical. He asked questions that got right to CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct 1 Page 838 different ideas, but it was his idea on how to operate 1 2 things. But he decided to retire because he had made 2 3 enough money to do what he wanted, and he could buy 3 you have a good management information system so you 4 Ferraris. 4 could keep track of where you make your most profit? 5 So then he left and I promoted -- put Page 840 the -- pointed questions. I remember him asking me, he said, Do 5 And I said, No, unfortunately, we 6 Eric on the board in place of Steve, because I thought 6 don't, but we're trying to develop one, or I'm trying 7 Eric, as chief operator or chief commercial officer, 7 to get a development started. And he and I had a 8 he ought to get a broader view of the company and 8 number of conversations. 9 understand such things as balance sheets, financing, 9 10 returns on investment, how do you do strategic growth 10 was also friends for a while of Karin, her sister -- 11 for the company, rather than just concentrating in one 11 or Eric's sister. So she started talking to him too. 12 narrow field, looking at the broad field. 12 13 14 Q. Now, at some point, Mr. Johnson also And when we were down in Houston -- 13 Christina likes to make a lot of close relationships. 14 You know? She's very good at getting to you and 15 A. Yes, he did. 15 making you feel like you're her very best friend. And 16 Q. Do you recall when that was? 16 she's terrific at that. 17 A. That was in January, February of 2015. 17 Q. And in connection with that process, I 18 became president of Oxbow. Right? Christina got to know him because she So -- but she found out that -- when I 18 was in Houston with the plane, she found out that Erik 19 just want to focus on something that was the subject 19 Fyrwald was in Houston, so she called up Erik and 20 of prior testimony here. I believe there has been 20 invited him on the plane, even though Eric Johnson was 21 testimony that you were interviewing at the time 21 on the plane. 22 another individual, also with the first name Erik, to 22 23 possibly be the president. 23 was, in hindsight, was that Christina had an extremely 24 close relationship with Eric Johnson and was pushing 24 Do you remember that testimony And the strangest thing about that CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (14) Pages 837 - 840 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct 1 Page 841 Eric Johnson to become president. And here she 1 a difficult job for him, and it's part of his work to 2 invited the other guy on the plane that I thought was 2 do this. He said that he thought that a potential 3 a good idea to be as president. So it was kind of 3 investor would want a younger man than me, or than I, 4 weird. 4 and that he thought that it would be best if we had a 5 succession plan that would promote Eric Johnson to be CEO. 5 Q. Now, the way it ended up working, to Page 843 6 fast-forward, as you earlier testified, Mr. Johnson, 6 7 Mr. Eric Johnson, became president, not Mr. Fyrwald, 7 Q. And what was your reaction to that? 8 Erik Fyrwald. Right? 8 A. Well, I thought about it, and I 9 A. Yeah. 9 said -- well, I said -- and I said this to other 10 I'll tell you something about that 10 people, I'm not sure I'd turn everything over to Eric, 11 that was even stranger. Christina eventually told 11 because I found out that Eric had hidden agendas. And 12 Erik Fyrwald not to take the job, even though I really 12 most people operate a lot by their own hidden agendas. 13 wanted him. And then -- but this whole thing -- and 13 And I also knew that -- 14 then she called me up -- want me to go on? It's a 14 15 long story. I'll try to make the story short. 15 Mr. Koch -- and I'm sorry if the questions aren't 16 precise -- is what did you eventually decide with 16 Q. I think we'll try to move things along Q. Sure. But what I'm trying to get to, 17 here, but I appreciate the detail, and I think some of 17 respect to a potential succession plan after your 18 it's very helpful, especially for what I'm going to 18 discussion with Goldman? 19 ask you next. 19 But I want to talk about -- kind of 20 A. Oh, well, I decided that if it really 20 helps the financing, and to solve a big problem with 21 keep going through Mr. Johnson's arc at Oxbow. And I 21 Arc -- not with ArcLight, with Crestview, and Eric, I 22 think we've got down in January 2015, he becomes 22 thought, could have the potential, I'd give it a try. 23 president. I just want to ask you, at some point 23 Q. So -- 24 after he was promoted to president, did you have any 24 A. But I would not give up the authority. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct 1 discussions with anyone about him possibly becoming 1 Page 844 I would become chairman, executive chairman, and he 2 CEO someday? 2 could become CEO. 3 4 5 Page 842 No, I didn't. Not for about six 3 Q. So -- months or three -- four months or something. 4 A. And then we could see how it worked. 5 Q. So you had been -- I think you A. Q. Right. And who did you have those 6 discussions with a few months after he became 6 testified yesterday, you had been the only CEO Oxbow 7 president about him potentially becoming CEO? 7 Group and then Oxbow Carbon had ever known. Right? 8 A. I believe Christina was pushing Eric 8 A. Yes. Q. And you were willing to step down at 9 to become CEO. And I'd have to check this. And I 9 10 believe he was -- she was doing it through Bob Popeo, 10 that point in favor of Mr. Johnson, who you still 11 to try to get him to push me to make Eric CEO. 11 weren't sure was 100 percent ready, because you felt 12 that it would help the financing effort to press you 13 out? 12 13 Q. Did you feel Mr. Johnson was ready to be CEO at that point in time? 14 A. No, I don't. 14 A. That's right. 15 Q. Now, moving forward, you mentioned -- 15 Q. Now, during Mr. Hurst's testimony on 16 we've talked a lot about Goldman Sachs being engaged 16 Monday, I think he described a few people, members of 17 by the company in the fall of 2015 after the put was 17 senior management, he said had been fired by you and I 18 exercised. Right? 18 think the insinuation was unfairly, and that it 19 A. Yes. 19 somehow negatively impacted Oxbow. 20 Q. Now, do you recall having any 20 21 discussions with Goldman Sachs about potential 21 22 succession planning as part of that financing effort? 22 23 24 A. Yes. Goldman Sachs said that -- Michael Carr of Goldman Sachs came to me and said it's Did you agree with Mr. Hurst's testimony? A. No. I likened our team like a 23 basketball team. You know? You put certain guys in 24 to play when you have certain opponents. And then you CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (15) Pages 841 - 844 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct 1 Page 845 always recruit newer people, and sometimes then you've 1 Page 847 Nestler, a very, very good guy in the petroleum coke 2 got to cut out older people. And when people get a 2 business, but he wanted to retire and play golf, and 3 little older, their abilities go down. And so -- or 3 he was at his retirement age. 4 they don't work well with other people. And so it's 4 5 always a changing dynamic. 5 is a living organism, and you always have change. 6 People come in and go out. 6 I certainly did that in the America's So you always have changes. A company 7 Cup, and I cut three of the very best sailors in the 7 8 world and still won. 8 described that occurred maybe over the last five to 9 Q. The organizational changes you 9 seven years at Oxbow, were those any different from 10 was one guy that Bob mentioned, which was Brian Acton. 10 the organizational changes that had occurred in the 11 I didn't cut him. I turned him over -- he had reached 11 Oxbow Group before Crestview's investment? 12 his level of incompetence. You know, in some areas he 12 13 was very, very good. You know, that's an old saying, 13 14 "reached a level of incompetence." And he was working 14 15 for Steve Fried. And Steve Fried wanted to let him go 15 16 because he thought he could get someone else to do a 16 naturally. We had guys leave for better jobs. You 17 better job. 17 always had that. So, I mean, it wasn't that we were 18 going through -- arbitrarily decimating the 19 organization. But as far as this is concerned, there 18 19 With Steve Fried, Steve Fried retired on his own volition. I didn't fire him. A. Well, I wouldn't say -- the China matter was, you know, a peregrine. Q. Sure. A. But the other ones, sure, that occurs 20 And then with the China matter, we 20 21 had, as I said, six people that we fired because they 21 22 were all entangled up in this stealing scheme that 22 23 cost us somewhere between 20 and $40 million. And we 23 tenth soldier. We weren't doing that. We were just 24 investigated over a year, and we decided that they 24 trying to optimize the organization for the current You know what decimation is? Q. Oh, yeah. A. With the Romans, you'd kill every CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct W. I. Koch - Direct Page 846 1 were all crooks. We had to get rid of them. You 1 2 can't have that in. We fired them all. We sued them. 2 3 We won every lawsuit. 3 that I believe Mr. Hurst described on Monday. He 4 Page 848 times. Q. I wanted to talk about another issue 4 talked about a reimbursement you made to the company 5 go who was head of that group. Because it's like a 5 in the middle of 2015 with respect to use of the 6 ship. The ship sinks, the captain goes down with it 6 company plane. 7 or gets -- may not go down, but he gets relieved. And 7 8 these guys were doing -- one of them was very good, 8 A. Yes. 9 but you can't have a dishonest guy in the 9 Q. Now, why don't you describe for us the 10 organization. 10 11 And I unfortunately had to let the guy And then Michael McAuliffe, I fired 11 Do you remember that? circumstances that led up to that reimbursement. A. The interesting thing about that was 12 him because he was not giving me the information that 12 that we were setting up an aviation department. And 13 I needed. He was very angry at me about something 13 we had bought, for very good reasons, a Citation so we 14 that happened to his daughter. And he was walling me 14 could go back and forth on a weekly basis to Port of 15 off completely from the legal department. He even 15 Long Beach, which was our most productive and most 16 told them. He said because, you know, I was majority 16 profitable asset. 17 shareholder and I couldn't be involved in the 17 Q. Which executive oversaw that? 18 discussions on the put. And so he put a long wall 18 A. Steve Fried did and I did. 19 around the legal department and wouldn't tell me 19 Q. All right. 20 anything that was going on. But another legal guy 20 A. So we had some competitors that wanted 21 would. So I just looked at him and said, you know, If 21 to take it away from us, and we had to make sure we 22 you're playing this game, you're not here. 22 got the additional barn. So we were spending a lot of 23 time on that. 23 24 Another guy retired by the name -- he was in his 60s, I believe. His name was David 24 CHA NCE RY COU RT REP ORT ERS Then we have an office in the Bahamas, CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (16) Pages 845 - 848 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 849 Page 851 1 and Dave Nestler was running that office in the 1 2 Bahamas, doing a very nice job. And he wanted to have 2 3 a plane, a King Air, to fly over there and back. 3 to get in a fight with your shareholders, and I wanted 4 to take any thorns out of the side that would cause that. 4 And I had this Falcon, and I was using did you make it? A. Well, as I said, I know what it's like 5 it and letting the company use it a lot. So we said, 5 6 Let's put it in an aviation department with Bill 6 7 Parmelee the head of it. And when Bill Parmelee 7 issue that came up earlier. If you turn to Volume 3, 8 described it to the board, the board accepted it. 8 the slim volume, I believe it's Tab 20. 9 Then, sure, I used it on personal Q. Mr. Koch, I want to talk about another 9 And, Your Honor, it's JX 0776. Do you see this document, Mr. Koch? 10 things but I paid for it. The company keeps very much 10 11 track of who works for me, how much time, and they 11 A. Yes. 12 send me bills. And I think the bills are too high. 12 Q. We've seen this before. We've talked 13 14 Q. Was it Mr. Parmelee, the CFO of Oxbow -- 13 about this a little bit, this success bonus concept, 14 as Mr. Hurst called it, in the April 9th e-mail here. 15 A. Yes, Mr. Parmelee was the CFO. 15 16 Q. -- who was sending the bills? 16 what I want to clarify. We talked about a couple 17 A. Yes. 17 different payments from Oxbow to Renegade. And I 18 Q. Okay. 18 believe we had talked about an earlier payment for 19 A. But then Crestview was trying their 19 $750,000 that was made from Oxbow to Renegade. 20 strategy of being a big nuisance, so they made a big 20 21 fuss about it and were creating a huge fuss about it 21 22 and looking at all my expenses on it. 22 23 24 So I said, To keep the fuss down, I will put in whatever Bill Parmelee comes up with. And And we've talked about -- and this is Do you recall that payment? A. Yes, I do. Q. I draw your attention to 23 Ms. O'Donnell's e-mail to Mr. Hurst, Mr. Volpert, 24 John-External, which looks like John Coumantaros. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 that number was 5.2 million. So I put that in. 2 W. I. Koch - Direct Page 850 Page 852 1 Ms. O'Donnell writes under "Renegade" at the bottom of 2 the page, "2014 payment of $750K no change." Do you 3 basically said, This didn't need to be done, because 3 see that? 4 the whole setup was perfect and right in the first 4 A. Can you -- 5 place. And I made a voluntary contribution. That's 5 Q. Tab 20, the very first page. 6 in the Pricewaterhouse minutes. 6 A. The very first page. 7 Q. Yeah. 8 A. Yes. It's the very bottom line. Yes. Voluntary. 9 Q. Yes. Do you have an understanding of 7 8 And the Pricewaterhouse people Q. So that's how Pricewaterhouse described your payment? 9 A. 10 Q. Do you have an understanding of -- 10 11 A. And I did it voluntarily. 11 12 Q. Do you have an understanding of 12 was doing a lot of work for Oxbow, and she was saying 13 Mr. Parmelee's position? You said he had set up the 13 that to me, that on Renegade that she worked for, 14 aviation department, disclosed it to the board in 14 ought to be paid a consulting fee or something for all 15 2012, and then in 2015 calculated this additional 15 her work. And she was doing a lot of work for it. 16 amount. Do you have an understanding of what his 16 And so she came up with the idea of going to 750. 17 position was on whether the payment was owed or not? 17 18 how that payment to Renegade was authorized? A. Yeah. Christina was saying that she And she bragged to me that she'd get 18 it from the audit committee. I didn't authorize it or 19 changed his tune 180 degrees. He said he knew all 19 anything. She did it. 20 about it, you know, in the first time around. 20 21 22 A. Q. Yeah. He told me that Bob Hurst had And at the time, Mr. Hurst was head of the audit committee. Right? Q. And in this e-mail chain, she's 21 e-mailing Mr. Hurst, Mr. Volpert, Mr. Coumantaros and 22 cc'ing Mr. Johnson and Mr. Parmelee, looks like in 23 A. That's right, yes. 23 2015, writing to the audit committee, and says, "After 24 Q. So if it was a voluntary payment, why 24 speaking with you -- [it] is my understanding that I CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (17) Pages 849 - 852 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Direct W. I. Koch - Direct W. I. Koch - Direct Page 853 Page 855 1 am to go to WIK with the following" And that's where 1 (Resumed at 11:00 a.m.) 2 it appears "Renegade 2014 payment of $750K no change." 2 THE COURT: Welcome back. 3 Is that right? 3 4 5 MR. LEONE-QUICK: Your Honor, A. That's correct. 4 plaintiffs are done with their questioning of Mr. Q. So was it your understanding that 5 Koch, subject to redirect, so I'll turn the witness 6 Ms. O'Donnell had received approval from the audit 6 over. 7 committee for that payment? 7 8 9 10 A. Yeah. Yeah. I mean, I didn't approve 9 it. MR. CARLINSKY: And Mr. Nachbar wanted the podium. So the rest of this e-mail, or the 10 THE COURT: All right. 11 chains that are higher up on the page, relate to this 11 MR. CARLINSKY: Did you -- 12 success bonus concept that's been the subject of prior 12 13 testimony. Can you just give your perspective on what 13 and I are pleased to tell you that we have an 14 you recall about this issue? 14 agreement of settlement between the plaintiffs and 15 Ms. O'Donnell and Mr. Johnson. 15 Q. THE COURT: There we go. 8 A. I recall that Christina showed these MR. McBRIDE: Your Honor, Mr. Nachbar 16 e-mails to me, and I got a little shocked by Bob Hurst 16 THE COURT: Great. 17 going out of line and saying he should suggest to 17 MR. McBRIDE: It's been signed, 18 Christina, who didn't work for him, didn't work for 18 approved by the board. We're working on a stipulation 19 the company, worked for me, that she should get a 19 of dismissal to be filed, but it would appear we're 20 bonus, without talking to me. 20 there. 21 So I called him up, confronted him. I THE COURT: Fantastic. Well, I 21 22 could tell you exactly where I was. I was in a car 22 23 parked in front of a plane that I was about ready to 23 appreciate you-all getting that done. MR. McBRIDE: Thank you. 24 get on, talking to him in the car. I said, What are 24 MR. CARLINSKY: While I slept. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Direct 1 you doing? Why the hell are you doing this? 2 W. I. Koch - Cross Page 854 And he said, Well, we think she 2 THE COURT: Everybody has their part 3 deserves it. I'm not talking -- then he said, We're 3 to play, Mr. Carlinsky. Everybody has their part to 4 gonna do it out of the company. 4 play. 5 6 I said, Don't you think you should have talked to me? 7 8 He said, No. We want to do it. But 9 10 5 MR. CARLINSKY: May I proceed? 6 THE COURT: Please do. 7 8 we'll talk to you later. And I must admit, it P'd me off a Page 856 May I proceed, Your Honor? 1 CROSS-EXAMINATION BY MR. CARLINSKY: 9 Q. Good morning, Mr. Koch. 10 A. Good morning. 11 Then after that, when I was talking to 11 Q. Let me see if I understand and we can 12 my wife about it, my wife said that Christina had been 12 agree on a few things. Your position in this case is 13 bragging to her constantly, saying she was going to 13 that OCIC and Ingraham must receive $414 per unit in 14 get a $10 million success bonus for this financing. 15 16 17 18 19 little bit. Q. 14 order for them to achieve the 1.5 return; is that Now, Mr. Koch -- 15 correct? THE COURT: We're going to stop there 16 for our morning break, and we'll come back at 11:00. (A brief recess was taken.) --- 17 18 19 A. My position is that all shareholders need to get that to have a sale. Q. I'm glad you answered my next question. And your position and understanding 20 20 21 21 was, as of January 1, 2016, that all members had to 22 22 receive that $414 number; correct, sir? 23 23 A. Yes. 24 24 Q. And you, in fact, had that CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (18) Pages 853 - 856 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 857 1 understanding. You remember you testified yesterday 1 2 that you had this religious fanaticism about equal 2 3 treatment and same price. 4 A. Well, we had been discussing the 1.5 3 before that. I'm not sure when we came up with the Do you remember that testimony? 4 414. 5 A. Yes, I do. 5 6 Q. So it would be correct, then, that 6 apply what you call this religious fanaticism about equal treatment, same price, isn't it? 7 from at least August 2015, if not sooner, your 7 8 understanding and belief was, for there to be an exit 8 9 sale in the event that the put was rejected, all 9 10 members had to receive that same 414; correct, sir? 10 11 12 A. 14 Yes. Unless there were some legal exception. 13 Q. Page 859 lawyers at Mintz Levin; is that correct? And you weren't focused on any legal exception, were you? Q. A. Well, 414 is a function of having to I wouldn't call it religious fanaticism. 11 Q. I'm only using your words, Mr. Koch. A. I don't recall being fanatic about it, 12 but I recall it was almost a religious principle, I 13 believe. 14 Q. Okay. So -- A. But anyway, as I said, I don't believe 15 A. No. 15 16 Q. And I guess your testimony is, then, 16 I did the calculation at that point in time. So I'm quibbling with the 414. That's all. 17 that even prior to August of 2015, your belief in the 17 18 years prior to that, at least from the point in time 18 19 where you sold units to OCIC and Ingraham at 300, you 19 not, that even in August of 2015, when the 1.5 issue, 20 knew they had to receive either 450 or whatever the 20 as you said yesterday, Mr. Popeo had come up with, 21 amount was, if you took certain deductions -- 21 when that issue arose, was it your belief at that time 22 distributions out? 22 that everyone had to receive the same price as OCIC 23 and Ingraham would need to receive in order to achieve 24 1.5? 23 24 A. I don't remember then what I thought about it. I -- Q. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 Well, but your testimony is, is it W. I. Koch - Cross Page 858 Q. But -- 1 A. I -- excuse me. But what I do 2 3 remember is I thought, as we all did, that the company 3 4 was going to grow quite substantially. So I -- Page 860 A. Yes. Yes. Q. Okay. Now, if we can bring up Exhibit 2502. 4 And we had a chance to look at this -- 5 Q. Mr. Koch -- 5 MR. CARLINSKY: By the way, did you 6 A. -- didn't focus on it. 6 7 Q. I'm going to try to ask very specific 7 Let's just give you some binders. 8 questions. 8 THE WITNESS: Thank you. THE COURT CLERK: You're welcome. 9 10 11 A. Okay. 9 Q. And I would appreciate very specific 10 answers. give Mr. Koch the binders? BY MR. CARLINSKY: Q. 11 And I think it's in Binder 1. I'm 12 A. Sure. 12 sorry. In Binder 2, you'll find Exhibit 2502. It's 13 Q. Unless you're not capable of giving me 13 also up on the screen in front of you. 14 one. 14 Now, am I also correct in 15 A. I'm sorry. I don't have Binder 2. I 15 just have Binder 1. 1 of 3 is what I have. This is 2 of 3. 16 understanding from your testimony yesterday that at 16 17 least since August of 2015, you had been thinking 17 18 about what amount unitholders -- this 414 number -- 18 Q. 2502, please, sir. 19 unitholders would have to receive or members would 19 A. Is that the JX number? 20 have to receive for there to be an exit sale? 20 Q. Yes, sir. 21 A. That's correct. 21 22 Q. And you had been discussing, if I 22 23 understand your testimony correctly, you had been 23 24 discussing that very fact with Mr. Popeo and the 24 Thank you. MR. NORMAN: Your Honor, could we get a set of binders? That would be helpful. THE COURT: I'm sure they'll get them to you, but, look, the binders are a convenience for CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (19) Pages 857 - 860 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 861 1 counsel. The reason you-all bring those big sets is 1 2 because you can do the exact same thing I'm doing. So 2 official board call soon to discuss a proposal that 3 I'm not very sympathetic when people who are armed 3 Crestview has obtained from a private equity firm 4 with associates and paralegals can't reach out and 4 ...." 5 grab a binder as quickly as I can. 5 6 I get it that we have to wait for the Q. Page 863 First you say, "We need to have an So by this point in time, you knew 6 Crestview had helped in securing that offer from 7 witness. That's a courtesy to the witness. I don't 7 ArcLight; correct, sir? 8 get, Mr. Norman, why you couldn't have walked over and 8 A. Yes. 9 gotten one if it was that big a problem. 9 Q. And going down, you write, in the 10 11 12 MR. NORMAN: I apologize, Your Honor. 10 third sentence, "The price they quote is not what the MR. CARLINSKY: May I proceed, Your 11 unit holders would get as they have left out the 12 deduction of expenses that will reduce the face amount 13 of their proposal. As a result according to Oxbow's Honor? 13 THE WITNESS: I don't -- what's the 14 number again? 2523? 14 calculations the price stated in their proposal to 15 BY MR. CARLINSKY: 15 negotiate would not meet the threshold price per unit 16 that is required under the LLC Operating Agreement." 16 17 Q. front of you, please, Mr. Koch. 18 19 A. 17 I don't have a 2502 in my binder, in this Binder 2. Q. 20 21 2502. Tell me when you have that in Check Binder 1. Is it in Binder 1 or Binder 2? 22 A. Binder 1 only has -- starts with zero Do you see that? 18 A. Yes. 19 Q. The threshold price that you were 20 referring to, that you said was required under the LLC 21 operating agreement, was the fair market value; 22 correct, sir? 23 numbers. Maybe it's in the third. Should I look 23 24 there? 24 A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. 2 That was 169, which was the fair market value. W. I. Koch - Cross Page 862 Could be in the third. 1 Q. Page 864 Which was the threshold you were MS. MARURI: 2502 is in Binder 3. 2 3 Q. It's in Binder 3. 3 referring to; correct, sir? A. That's right. 4 A. Yes. 25 -- what is it? 4 Q. It's the only threshold you refer to 5 Q. 2502. 5 6 A. Yes. I have it. 6 A. That's right. 7 Q. We looked at this document in 7 Q. You then go on to tell your board in this document; correct, sir? 8 connection with Mr. Leone-Quick's direct of you this 8 designees "The Agreement" -- that's a reference to the 9 morning. This was the e-mail that you sent on March 9 LLC agreement? 10 25, 2016, to your board designees; correct, sir? 10 A. That's right. 11 A. Yes. 11 Q. That's the LLC agreement that you told 12 Q. And at this point in time, just so we 12 us yesterday that you had been so heavily involved in negotiating; correct, sir? 13 have the stage set, the ArcLight letter of intent had 13 14 been received on March 16; is that right? 14 15 A. 16 your word for it. 17 Q. I've forgotten the date, but I'll take 15 16 I'll represent to you it was March 16. A. I -- I didn't say "so heavily involved." I said I was involved in negotiating. Q. That's the LLC agreement which you 17 told us that you certainly understood what it required and what it didn't require; correct, sir? 18 And that ArcLight letter of intent had a price 18 19 proposal in it of $176 per unit; correct, sir? 19 A. That's right. Q. And, in fact, it's the LLC agreement 20 A. I believe so. Yes. 20 Q. Okay. And you wrote this e-mail to 21 that you explained to your lawyers, back in August or 22 your directors, and I want to focus you on a few 22 June, when you retained Mintz Levin, your 23 things in your e-mail. 23 understanding of what that agreement required; 24 A. 24 correct, sir? 21 Uh-huh. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (20) Pages 861 - 864 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 2 A. looked at the LLC agreement for some time, and -- 3 4 Page 865 I'm not sure, simply because I hadn't Q. But certainly, by this point in time -- 5 A. But when I first went to -- I W. I. Koch - Cross Page 867 1 understood it had to be 414 for everyone or no deal. 2 You don't mention that in this e-mail to your 3 directors, either, do you? 4 A. No. I don't. 5 Q. Now, before you sent out this e-mail 6 certainly started reading and studying it quite a bit, 6 to your directors, because you wanted to be sure it 7 and I can't tell you exact time when I did that. 7 was accurate, you had your chief lawyer, Mr. Popeo, 8 review it, didn't you? 8 Q. Well, you don't have any doubt that by 9 the time we got to March 25 of 2016, that reading and 9 10 studying had been done? 10 Then I found out later that he was busy writing A. I sent this e-mail to him to review. 11 A. That's right. 11 another e-mail. So I'm not sure how -- how closely he 12 Q. Okay. And let's tell the Court what 12 reviewed it or who he had review it. I just don't know. I just said -- 13 it is you told your directors the agreement that you 13 14 negotiated, that you understood from 2007, required. 14 And what you told them is: "The 15 15 16 Agreement requires [first] all members receive at 16 17 least $169/unit ...." 17 18 19 20 21 Do you see that? 18 A. Yes, I do. 19 Q. That was a reference to the very 20 threshold in the prior sentence; correct, sir? 21 Q. Can we bring up 2504, please. And I'm going to ask you if you'd flip a couple of tabs in your book. A. Which way? Q. I guess it would be forward, if we're to 2504, please. Do you have that in front of you, sir? A. Yes. Q. And this is an e-mail that you sent to 22 A. Yes. 22 23 Q. And then you went on to say "... while 23 Mr. Popeo the same day, earlier in the day, with a 24 question mark that says, "Is this all right to send 24 other members are required to receive additional funds CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 866 1 which will bring their returns to 1.5 times their 1 out to the ... directors I have appointed? I would 2 original investments." 2 like to send this out ASAP." 3 Do you see that? 3 Page 868 Do you see that? 4 A. Yes. 4 5 Q. And those additional members -- or 5 8:51:33 p.m. My memo went out 10:22:28 p.m. So two hours before -- A. Yeah. This -- this went to Bob at 6 those other members that you were referring to there 6 7 were OCIC and Ingraham; correct, sir? 7 Q. And it's important -- I understand. I think there was a Wyatt Trust that 8 A. Okay. 9 may have been in there too at this time. I just don't 9 Q. And it's important, when you're 10 recall. 10 communicating with your board designees, to be 11 accurate. So you wanted Mr. Popeo to have a look at what you were about to say? 8 11 A. Q. Okay. Well, whether the Wyatt Trust 12 was in there or not, your intention in that statement 12 13 about other members was a reference to OCIC and 13 14 Ingraham. 14 15 A. Yeah, that's correct. Q. And Mr. Popeo, in fact, edited, Can we agree on that? 15 because we know -- and you'll remember this from your 16 A. That's correct. 16 deposition -- the e-mail you sent out, versus the 17 Q. Now, nowhere in this e-mail to your 17 e-mail you sent to Mr. Popeo, in your words, were 18 directors do you mention this notion of same price or 18 "slightly different"? 19 equal treatment, do you, sir? 19 A. But I -- 20 Q. Just can you give me a yes or no to my 20 21 A. No. And there's a lot of other things 21 I didn't mention in there either, so -- question? 22 Q. Which I was going to get to. 22 23 A. Uh-huh. 23 who edited it, because I knew Bob Popeo was working on 24 Q. You told us how, as of January 1, you 24 another memo. But Mintz Levin reviewed the memo for A. CHA NCE RY COU RT REP ORT ERS No. I -- I have to say, I do not know CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (21) Pages 865 - 868 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross 1 Page 869 me and -- but as I said, as I said, Popeo was working 1 even though, when we look at the offer at 176 -- or 2 on another memo virtually at the same time. So -- 2 price proposal at 176 -- Page 871 3 Q. 3 A. Uh-huh. 4 Mr. Popeo, though? 4 Q. -- and on its face it appears 5 A. Well, that's right. 5 reasonable, there are deductions that need to be taken 6 Q. Yes? 6 to ultimately arrive at the true implied value of that A. But I don't know what office -- to 7 number. That's what you were saying, weren't you? 7 8 9 The only person you sent it to was whom he sends his memos. I just have no idea. Q. Isn't it a fact, Mr. Koch, that day, 8 A. Yes. That's right. 9 Q. Okay. And then again, you go on to 10 before you sent out your e-mail to your board 10 say, "As a result according to our calculations we 11 designees, you spoke to Mr. Popeo by phone about that 11 made this offer to negotiate would not meet the 12 very document? 12 threshold price per unit that is required under the 13 LLC Operating Agreement for some members to get 13 A. If you -- I'm -- I'm reluctant to take 14 your word for it because -- but if you could show me 14 $169/unit and other members to get 1.5 times their 15 the -- my notes, I'd be happy to verify that. 15 original investment price." 16 Q. Okay. We can get to your deposition 16 17 testimony. Do you not remember what you testified to 17 18 in deposition? 18 19 A. I testified four days of deposition, Do you see that, sir? A. Yes, I do. Q. Okay. Once again, what you were 19 saying was your understanding of the agreement was 20 so I can't remember every word. But as I said, I sent 20 everyone had to get 169, and there were certain other 21 it to Popeo. I'm saying now I don't know if he -- if 21 members who had to get additional funds to achieve 22 he edited it or someone else edited it. 22 their 1.5 return; correct, sir? 23 24 Q. Let's look at what you wrote in your 23 words, before it was edited by Mr. Popeo or perhaps -- 24 A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 A. 2 3 4 5 Well, that's what -- what the words say, but -- W. I. Koch - Cross Page 870 Page 872 Q. That's all I'm interested in. A. Words -- let me read it again just to Sure. 1 Q. -- someone else. 2 A. Be happy to. 3 make sure. I also say here, "It also has a number of Q. In 2504, you wrote -- same opening 4 other provisions that cannot be met." language: "We need to have a board call ...." I want to go down to the second 6 Q. 5 6 I wasn't asking you about that, sir. With all due respect, in the interest of time -- 7 sentence. You write, "The offer is not a firm offer 7 8 but just an offer to negotiate buying 100% of Oxbow 8 9 provided we give them exclusivity." 9 each other. We've really got to take turns. Juli -- A. I know. I'm just reading. THE COURT: You guys are talking over Do you see that? 10 I often say this, because we're so proud of her. You 11 A. That's right. 11 won the America's Cup? 12 Q. And then, in your words, you write, 12 THE WITNESS: Yes. THE COURT: She won the transcriptors 10 13 "The price they quote may appear reasonable but [it] 13 14 is not what the unit holders would get as they have 14 15 left out the deductions of expenses the unit holders 15 16 under the offer would be required to pay." 16 17 cup. THE WITNESS: Great. THE COURT: She is the fastest Do you see that? 17 transcriber in the United States, which is pretty No, I don't. And I'm -- I'm -- wait a 18 cool. But she can't take down two people at once. 19 minute. Excuse me for a second. Yeah. I see it now, 19 Please really try to take turns. Otherwise, I'll have 20 "The price they quote may appear reasonable but is not 20 to be rude and snap at you-all, like I snapped at poor 21 what the unit holders would get as they have left out 21 Mr. Norman. 22 the deductions of expenses the unit holders under the 22 23 offer would be required to pay." Yes. 23 18 24 A. Q. And so what you were saying there is 24 THE WITNESS: I apologize, sir. THE COURT: No worries. BY MR. CARLINSKY: CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (22) Pages 869 - 872 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 Q. W. I. Koch - Cross Page 873 Mr. Koch, I want to read you question 1 Page 875 up -- break it down. 2 and answer from page 737 of your deposition, starting 2 Q. 3 at line 20: 3 testimony -- 4 A. Uh-huh. Q. -- Mr. Leone-Quick showed you a "Question: Is it your belief that 4 Now, do you remember in your direct 5 changes were made as a result of a discussion you had 5 6 with Mr. Popeo?" 6 document from Mr. Freney on March 21 -- in fact, if we 7 need to bring it up, we can do it. It was a document 8 on March 21 that showed Mr. Freney identifying a 27.9 amount as what was needed to achieve a 1.5 return. In direct reference to the two 7 8 documents we were looking at. 9 "Answer: I believe it was." 9 10 That's on top of page 738, line 1. 10 Do you remember that? 11 A. Yeah. That's what I said. 11 A. Yes. 12 Q. Now, did you expect that Mr. Popeo, in 12 Q. And your testimony on direct was this 13 reviewing the draft before you sent it out, would 13 was the first document you had seen from Mr. Freney, 14 correct anything in it if he thought it was 14 and you didn't have any discussions with him about it 15 inaccurate? 15 before or after. 16 A. I would if he had reviewed it. 16 17 Q. Now, let's talk about the deductions 17 Do you remember that testimony? A. That's right. Q. Now, that wasn't truthful testimony, 18 that you were focused on in your e-mail and that you 18 19 told your directors were needed to be made in order to 19 20 determine whether the fair market value of 169 had 20 21 been achieved. 21 referring there to the 275 -- or not to 275. 27 point And before we do that, I'm going to Mr. Koch, was it? A. Well, it was about the -- I was 22 something. I had conversations with him afterwards 23 ask you about Mr. Freney. Mr. Freney was around in 23 about deducting legal expenses. 24 2007; correct? 24 22 Q. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 Well, but on the testimony that you W. I. Koch - Cross Page 874 Page 876 A. Yes. 1 gave His Honor that on March 21, you got a document Q. Mr. Freney, at the time, was with 2 from Mr. Freney that showed a 27.9 number and that you 3 Callisto, as we heard, but he was, would you say, the 3 hadn't had any previous discussions with him about it, 4 primary negotiator of the LLC agreement? 4 that was not accurate testimony, was it? 5 A. Well, there were -- I can't say he was 5 A. You mean about the 27.9? 6 the -- the primary negotiator. I would say he was a 6 Q. Correct. 7 facilitator. 7 A. No. I'm -- I disagree with you on 8 Q. I asked you earlier if you were 8 9 heavily involved. You said no. Can you identify 9 10 anyone from your team who was more highly involved, or 10 11 more extensively involved in the negotiations in 2007 11 12 of the LLC agreement than Mr. Freney? 12 13 that, but -Q. Okay. Let's -- if we can bring up Exhibit 2394. I'm going to ask you if you'd look at 2394. Do you have that in front of you? I'm sure the -- the lawyers were. I 13 14 didn't keep track of everybody's time, so I couldn't 14 15 give you an estimate. 15 well, which may be the fastest. Do you see the date A. Q. You can look at it on the screen as 16 of this document, Mr. Koch? It's Jim Freney to Mr. Freney the person who was charged on your behalf 17 Mr. Popeo, copying, yourself and Mr. Freney copies 18 to communicating to the lawyers and to the other side 18 himself for good measure. 19 what you were hoping to accomplish in the LLC 19 20 agreement? 20 21 A. Leave aside the lawyers. Was Yes. 17 16 Q. A. He did -- he did a little of both. 21 Do you see that? A. Yes. Q. And that's four days earlier than the 22 And I did a little of the both. So -- I communicated 22 document you testified to the Court was the first 23 back and forth to the lawyers, as well as to the other 23 document you had seen from Mr. Freney with the 27.9 24 side. So it was a team effort, and I can't break 24 number in it. Do you see that? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (23) Pages 873 - 876 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 877 1 A. Yes. 1 2 Q. Now, let's look at this document. And 2 3 I would ask if you would turn to the page, the next 3 4 page, which is Bates No. ending 343. And you'll see 4 5 its entitled "Project Diamond." It has the Oxbow 5 6 Carbon logo on it. 6 This is an Oxbow-created document, 7 8 correct, sir? 9 A. 10 11 7 I don't think so, because Oxbow didn't the case? A. You -- you didn't -- you left with a period, so I was a little confused. All right. Q. Do you want me to ask it again? THE COURT: Let's not belabor the issue. Q. THE COURT: The point is just do you agree that Freney was doing what you asked him to do? 11 Do you see down in the bottom left-hand corner, it's "Oxbow Carbon LLC - Strictly 12 13 Confidential"? 13 A. MR. CARLINSKY: Yeah. 9 10 use Project Diamond. But I -- I can't testify to -- 14 Yes. But as I said, I can't tell Page 879 I'm asking you isn't that, in fact, 8 12 14 Q. THE WITNESS: Yes. He was. BY MR. CARLINSKY: Q. All right. And then if we go back to that second page. 15 A. Uh-huh. 16 Q. Are you -- 16 Q. You see that Mr. Freney -- my gosh. 17 A. -- because Goldman Sachs used "Project 17 15 18 19 whose it was -- You see on the second page there, at 18 Diamond" a lot. That's all I'm saying. Q. My eyes are -- I need to do this. Do you see that on the cover note, 19 the top, there are transaction adjustments listed there? 20 Mr. Freney writes -- go back to the first page -- 20 21 "Attached is the analysis which adjusts ArcLight's 21 22 proposed equity value of $1,449 million to reflect 22 23 various transaction-related or ArcLight specific costs 23 24 resulting in a revised equity of $1,360.2 million or 24 A. Yes. Q. And the first one is "Purchaser expense reimbursement." That was something that -A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Uh-huh. W. I. Koch - Cross Page 878 $159.73 per diluted unit"? 1 Q. Page 880 -- the ArcLight letter of intent 2 A. Yeah. I see that. 2 suggested it wanted to be reimbursed, and you thought 3 Q. Okay. Do you have any doubt, as you 3 that should be considered a deduction; correct? 4 sit here on the stand, that the document which is 4 A. Yes. That he -- he did. Yes. 5 attached that references Oxbow Carbon was, in fact, an 5 Q. And then the second is "Goldman Sachs 6 Oxbow Carbon document? 6 7 8 A. It certainly -- I may have made a mistake. advisory fee." And, now, going down to the fourth 7 8 bullet point -- I'm sorry, the fifth bullet, you see 9 Q. Okay. 9 Mr. Freney writes, "Amount required to achieve minimum 10 A. But I -- 10 1.5x aggregate capital contribution for all 11 Q. Let's move on, in any event. 11 unitholders." 12 A. Okay. 12 13 Q. So just so we're clear, what 13 Do you see that, sir? A. Yes. Q. And he attributes $27.9 million to 14 Mr. Freney was doing -- this is a day after the 14 15 ArcLight letter of intent is received. And you had 15 16 asked him, as you said to your board members a few 16 A. That's correct. 17 days later, I want you to apply the very -- or come up 17 Q. And then, when you go down and you do 18 with the list of the deductions that should be taken 18 these various deductions, what it's ultimately showing 19 against the 176 to see if we're clearing the $169 fair 19 is that the $176 proposed by ArcLight had a real 20 market value threshold; correct, sir? 20 implied value of 159; correct? that amount? 21 A. Yes. 21 A. That's what it looks like. 22 Q. That's what Mr. Freney was doing. He 22 Q. And then, if you look to the next 23 24 was carrying out what you had asked him to do? A. Is that a question or a statement? 23 page -- one over -- at 344, there is a breakdown of 24 the particular holders who Mr. Freney has identified CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (24) Pages 877 - 880 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 881 Page 883 1 in calculating how he arrives at that $27.9 million 1 Mr. Koch. But would you agree with me that you're not 2 number. 2 aware of a document between the date of Mr. Freney's Do you see that? 3 March 17 e-mail and your March 25 e-mail to your board 4 A. That's correct. 4 designees where you wrote that you disagreed in any 5 Q. So you got this on March 17. 5 way, shape, or form, with the concept that $27.9 6 A. Yes. 6 million could be paid to those small holders in order Q. You reviewed it. You don't recall 7 for the exit sale to go forward? 3 7 8 sending any kind of an e-mail to Mr. Freney, following 8 9 receipt of this, where you said, "Jim, your assumption 9 10 is incorrect when you wrote that it was 27 million -- 10 11 27.9 million that was required to achieve the 1.5 for 11 12 all members"? 13 14 A. A. I never wrote anything about the small holders other than this. Q. Okay. Now, if we can look at 2407, 12 A. Uh-huh. You didn't write that, did you? 13 Q. It should be in your binder. By the No, I didn't. 14 way, you're not aware, when Mr. Freney sent the MR. CARLINSKY: And if we can, Scott, please. 15 document we just looked at to Mr. Popeo, of Mr. Popeo 16 can we put up -- go back one page in this particular 16 writing back that day or the next day, or the day 17 document. And if we can highlight the language that 17 after, saying, "Wait a minute, Jim. This is not how 18 Mr. Freney used about what was required under the LLC 18 the LLC agreement was intended to operate"? 19 agreement. And if we can put it side by side with the 19 20 language from 2502, which was Mr. Koch's e-mail to his 20 21 board designees a few days later. 21 A. 22 the -- on the 28th. 15 22 Q. So what we have is, in the bottom You're not aware of any such document, are you? Not that, but I -- but he did it on 23 document, you're providing your understanding of what 23 Q. And we're going to get there. 24 the agreement required. And, of course, you were 24 A. Okay. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 882 1 there in 2007. And in the above document, Mr. Freney 1 2 is providing what he understood was required under the 2 3 agreement, and he was there in 2007. 4 5 A. Page 884 Q. And we're going to watch the genesis 3 A. Excuse me. I got to find 24 -- 2407, Do you agree with that? 4 you said? Well, I'm -- not quite. I don't know 5 Q. Yes, sir. of that. 6 what he -- he was just making a calculation. So I 6 A. Thank you. 7 don't know. You have to ask -- 7 Q. And I'm sorry for the bulky binders. 8 Q. Let's look at, then -- 8 9 A. You have to ask what Jim thinks -- 9 10 11 10 thought the agreement applied. Q. Well, did you ask him at that point 12 that document? 13 14 15 I -- I turned the document over to Bob Popeo and asked 15 16 him for an analysis of it. 16 17 18 Q. Do you see 2407 is an e-mail from And this is Friday, March 18. why it was that he was stating what he had stated in Well, as I've already said, I didn't. Yes. Mr. Freney a day later from the one we had looked at. 13 A. A. 11 12 14 Are you there? Q. Sometime after this? 17 A. Well, it took him a -- not sometime. 18 19 I think it was fairly soon after that, because he gave 19 20 us the -- his memo on March 28. 20 A. Uh-huh. Q. And he copies on this Mr. Popeo, and also your lawyer Mr. Leone-Quick. Do you see that? A. Yes. Q. And also Mr. Koch. That's yourself; A. That's correct. Q. All right. And he writes, addressing correct? 21 Q. Well -- 21 22 A. And he had obviously been working on 22 this to Bob Popeo, "Bob: Attached is a revised 23 purchase price analysis which calculates the net debt 24 ...." 23 24 it for some time, so -Q. We'll get to that in a few moment, CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (25) Pages 881 - 884 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross We can skip through some of it, but 1 W. I. Koch - Cross Page 885 1 Page 887 didn't remember the number of what this exhibit was. Can you tell me that, please? 2 you see that he says, after various deductions, he's 2 3 now come up with an "... implied diluted unit price of 3 4 $154 ...." 4 2407. And I'm going to move off of it, so if you want to just look at it on the screen. Do you see that? 5 A. Yes. 6 Q. So -- and you can see down below was 7 5 6 7 Q. Of course, sir. Sorry about that. A. All right. I see it now, and it compares with your screen, yes. 8 his earlier e-mail. So what's happened in the course 8 9 of the day is, through various deductions, he's trying 9 anyone -- you've now had Mr. Freney's analysis the Q. Okay. And again, you're not aware of 10 to push the number as far down as he can below the 169 10 prior day. You receive this analysis. Mr. Popeo is 11 fair market value threshold; correct, sir? 11 copied, Mr. Leone-Quick is copied, and you're not 12 A. That's what it looks like. 12 aware of anyone saying, "Whoa, I don't know what you 13 Q. All of which would really be, you'd 13 guys are doing here"? 14 agree with me, a waste of time, if the bogey that has 14 15 to be hit is 414 for everyone. 15 16 17 A. A. No. I am not aware, at the time of this analysis, that -- no one said what you said. You'd agree with that; right? 16 It would be a waste of time? No. I 17 we can start with the front page of 2422. You'll see Q. Okay. Now, if we can go to 2422. And 18 there's an e-mail at 6:49 p.m. on March 18. So now Well, you've told us how there 19 we're a few days after the ArcLight proposal. We've 20 couldn't be an exit sale, there couldn't possibly be 20 looked at two days' worth of Mr. Freney's analysis. 21 an exit sale unless everyone got 414. 21 And there's an e-mail you receive from your lead 18 didn't think it was a waste of time. Q. 19 22 lawyer, who you've been talking to for a year, at 23 obviously, your supervision -- working to try to come And here we have Mr. Freney -- with, 23 least, about what the LLC agreement required and was 24 up with the deductions that might help push down the 24 intended to mean. 22 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 ArcLight 176 below 169. 2 3 4 5 6 7 A. 1 We agree with that; right? 2 A. Uh-huh. 3 Q. Mr. Popeo tells you, "Bill, I have Okay. And now let's look at what Mr. Freney does, if we can go to the next page -A. But you had asked me -- I'm sorry. 4 tried to reach you by telephone. The purpose of the 5 call on Monday is not to negotiate the LOI (as 6 Crestview would like) but rather to establish that the 7 process is initiated and conducted by Goldman Sachs." 8 You had asked me a previous question, why would he do 8 9 it if it weren't at 414. I have an answer for that, 9 10 if you'd like it. 10 11 Q. 12 next page, please. 13 A. Okay. 13 Q. 14 Page 888 Let's look at what Mr. Popeo writes. Yeah. That's what he was trying to do. Q. W. I. Koch - Cross Page 886 No. I'd just rather we move to the Do you see that? A. Yes. Q. And then he writes, "Obviously, if 11 Goldman Sachs says this is an amazing offer, we would 12 be dead in the water." Do you see that, sir? We see another analysis from 14 A. Yes, I do. 15 Mr. Freney. Obviously he's adjusted some of the 15 Q. He was telling you that if Goldman 16 deductions. But you see, once again, in this revised 16 Sachs thinks that this offer at 176 is an amazing 17 analysis, purchase price analysis, he lists, "Amount 17 offer, such that nobody else at that point in time was 18 required to achieve minimum 1.5x aggregate capital 18 likely to come in and bid a higher amount, what he was 19 contribution ...." And he shows that same 19 telling you was you'd be dead in the water in trying 20 $27.9 million number. 20 to avoid an exit sale. Do you see that, Mr. Koch? 21 Yes. I see it on the screen. 22 Q. Okay. 23 A. But I got lost in the -- in -- I 24 21 22 A. 23 24 That's how you understood it, didn't you, sir? A. Not necessarily. I mean, that's -- "we'd be dead in the water" is a nautical phrase, and CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (26) Pages 885 - 888 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross 1 Page 889 it means that we -- basically, we couldn't go forward. 1 A. That's what he was saying, yes. 2 So -- 2 Q. Now, did you write back to Mr. Popeo Page 891 3 Q. Couldn't go forward with what? 3 following his e-mail and say, "Bob, I don't know why 4 A. Well, I'd have to think about this and 4 you think we would be dead in the water. This 5 look at -- probably go forward with the Goldman Sachs 5 ArcLight proposal is 250-something dollars away from 6 thing. But -- 6 the 414 that everyone has to get before there would be 7 an exit sale"? Q. 7 8 Does that make any sense to you, 8 Mr. Koch, what you just said? Did you say that? 9 A. No -- well, no, it could be -- 9 10 Q. Isn't the only plausible and credible, 10 believe I said something to him on the phone, but I'd A. I don't believe I wrote him back. I 11 and, in fact, what you understood interpretation to 11 have to check my notes to make sure exactly what it 12 mean was Mr. Popeo was telling you if Goldman says 12 was. 13 this is a good one, we would be dead in the water in 13 14 avoiding an exit sale? 14 clear. You didn't write anything back along those 15 lines. Can we agree on that? 15 16 A. Well, I didn't believe that. And so -Q. 17 I only asked you what you understood Well, let's just see if we can be 16 A. What? 17 Q. You didn't write anything back to him 18 along the lines of -- Well, as I said, I read this, and that 19 A. No. I believe I didn't. 20 he would -- I read it as we couldn't go forward. But 20 Q. And are you testifying, Mr. Koch, that 21 that was his opinion. And that's how I read it. 21 when you received this e-mail, you called him up and 18 Mr. Popeo was communicating. Q. 19 A. 22 said, "Bob, why are you saying this? The number needs 23 spent a full day on [the] issue with Michael Carr, Q. 23 to be 414"? 24 Davis Polk and our team. I've made it clear that if 24 A. 22 You see down where he says, "I have CHA NCE RY COU RT REP ORT ERS I don't believe I called him up and CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 890 Page 892 1 Crestview and Davis Polk held to their position, we 1 said the number needs 114 [sic]. I said I -- my 2 would file a petition for Declaratory Judgment in 2 memory is I -- I called him so many times, and -- that 3 Delaware." 3 I did keep notes on it, and if I go to my notes -- or 4 A. Yes. 4 maybe you have them. You could tell me whether I did 5 Q. And then, at the bottom, he says, "I 5 or not. I just don't specifically remember. 6 would much prefer to litigate the issues of Goldman's 6 7 role rather than OCMH's cooperation." 7 10 Then that will be your answer. I Do you see that? 8 A. Yes. A. Yes, I do. 9 Q. But you have no doubt -- strike that. Q. And that was a reference to the fact 10 8 9 Q. appreciate that. Now, if we can turn to JX 3013. And that for at least two months, Crestview had been 11 while that's being pulled up, Mr. Koch, when you 12 complaining to you quite vociferously that it thought 12 retained Mintz Levin back in May of 2015, Mr. Popeo 13 you were dragging your feet; correct, sir? 13 was the senior partner, litigator, that was working 14 with you; correct? 11 14 15 A. Q. 16 17 18 They interpreted my -- I'm sure they 15 thought that. But as I said -And you thought one of the -- I'm 16 sorry. 17 A. As I said, I was trying to take -- 18 19 follow Goldman's advice and go about it in a very 19 20 professional, logical way, rather than do a jump on 20 21 the first deal that came out. So -- 21 22 A. Q. And Mr. Popeo was telling you he would I didn't know he was the senior litigator. I knew he was the senior partner. Q. Very well. A. But I also knew he was a litigator, Q. And the other person who began working so -with you from day one was Mr. Leone-Quick; correct? 22 A. That's true. Q. And for the entirety of the year 23 prefer not to have the issue of OCMH's cooperation be 23 24 the issue in litigation; correct? 24 between May of 2015 all the way through this March CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (27) Pages 889 - 892 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 893 period, Mr. Leone-Quick was deeply immersed in the 1 2 issues that you were being advised on; correct? 2 Devil's Advocate, GS said could not get an FMV offer. 3 We now have one." 3 4 A. He certainly -- I certainly saw a lot Q. And the notes say, "Ken: To play 4 of participation on his part. And -- 5 Q. Page 895 1 And another lawyer from the Mintz Do you see that? 5 A. Yes. Q. And that was a reference to, as you 6 Levin firm with whom you had dealings was a corporate 6 7 partner by the name of Rich Kelly; am I correct? 7 understood it, no one on your team, including Goldman, 8 believed, in that March time period, that there would 9 actually be a bidder that came forward that would 10 clear 169; correct, sir? 8 9 A. with him. Not many. 10 11 Q. A. Q. But you also sought his advice? You personally sought his advice on issues? 16 17 11 I saw e-mails that he had written on certain issues, yes. 14 15 You sought his advice on certain issues, though? We can agree on that? 12 13 I had only -- I had a few dealings A. Well, I -- I saw his advice through the e-mails. Q. 18 Fair enough. Now, if we have 3013 in You were being told that? 12 A. Not necessarily. I -- I remember 13 discussions about the probability of one coming in, 14 but I don't believe I was ever told that one wouldn't 15 come in. 16 Q. Fair enough. And the probabilities 17 that you were told were the probabilities were very 18 low. Fair point? 19 front of you. I'll represent to you these are 19 A. 20 Mr. Leone-Quick's handwritten notes of a call on March 20 Q. Okay. 21 17, 2016. 21 A. -- I just said that -- Q. Let's see what Mr. Nachbar goes on to A. Okay. 22 A. Excuse me. I -- it's 30 what again? 22 23 Q. 3017. 23 24 A. I'm just looking here. 24 I wouldn't say that. Because -- say. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 894 Q. I'm sorry. 3013. 1 2 A. Okay. 2 notes. "Acid test: What would Goldman say value 3 Q. And I'm going to direct your attention 3 could be achieved." 4 to the page that ends 24766. So we're going in to the 4 5 third page. You'll see the heading says, "Call with 5 6 Bill." 6 7 Q. Page 896 1 He says -- you see Mr. Leone-Quick's And then a couple lines down it says, "Ken: A lot will turn on what GS says." Do you see that? Do you see that? 7 A. Yes, I do. Q. At that time, consistent with what we 8 A. Yes, I do. 8 9 Q. And then you'll see, we turn one more 9 saw in Mr. Popeo's "dead in the water" e-mail where he 10 said, "If Goldman says this is an amazing offer, we 11 would be dead in the water," at that same time you had 10 page, and the discussion of that call continues. 11 Now, do you recall that you had a call 12 with Mr. Leone-Quick, Mr. Popeo, Mr. Nachbar, and 12 Mr. Nachbar on a call telling you, at this point, it 13 others, on March 17? 13 really all depends whether Goldman says this is a 14 really good offer. Isn't that true, sir? 14 15 16 17 A. I don't. Can you point to -- me to 15 those things that -Q. Well, you saw the prior page, there's a reference to "Call with Bill." And then I'm going to have you look at 18 A. Well, first place, I would say I don't 16 remember being on this call. And I'm not listed on 17 the call. And the -- but I would say that both Bob 18 and Ken were saying there was a discussion at that 19 the next page, which is 24767. And I'm going to 19 time about a preemptive offer. And if it is 20 direct your attention, in Mr. Leone-Quick's notes, 20 preemptive, Bob was basically saying we couldn't go 21 there's a reference there to Ken. 21 forward now. The only Ken that you know that was 22 23 24 involved at the time is Mr. Nachbar; is that correct? A. Yes. 22 Q. I'm trying to understand, when you say 23 "we couldn't go forward," and -- in the same sentence. 24 So you do recall that there were discussions that you CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (28) Pages 893 - 896 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 897 were having with Mr. Popeo, at least, as to whether 1 2 ArcLight's 176 offer was preemptive; correct? 2 what you understood the LLC agreement required by way 3 of deductions. 3 4 A. 4 others whether it was preemptive. Q. 5 6 Yes. And we had discussions with Q. Page 899 There you are, telling someone, again, 1 Right. And you knew 176 wasn't anywhere close to 414? Do you see that? 5 A. And there are other things there too. 6 Q. I understand that. Can you just 7 A. Uh-huh. 7 8 Q. Now, I'm trying to understand. Why 8 answer my question? A. "There are other problems with this 9 were you having discussions about whether the offer 9 proposal (such as the requirement the capital 10 was preemptive if what you've told us is for at least 10 structure will remain in place) that suggest a 11 a year, and certainly since January, you, your legal 11 transaction with ArcLight may not be feasible." 12 team, everyone understood it had to be 414 or there 12 13 was no deal? 13 14 A. Let me clarify something. Because you 14 So -- but yeah, I did say this. Q. I just want to make sure the record is clear. 15 keep using the word "offer." I viewed, as most people 15 A. Uh-huh. 16 did, as Goldman Sachs said, this wasn't an offer. It 16 Q. Here you are telling someone else what 17 was what they called a proposal. It had lots of outs. 17 you believe the LLC required -- the LLC agreement 18 And all it was was an offer to negotiate. 18 required in the way of deductions in order to 19 determine whether the threshold had been achieved; 20 correct? Q. 19 20 Let me restate my question then, Mr. Koch. 21 A. Okay. 21 Q. At the time when someone said to you, A. I just said my initial reading of the 22 ArcLight letter suggests that the proposal is below 23 "We need to evaluate whether 176 was preemptive," did 23 the required fair market value. That's all I'm 24 you, William I. Koch, ever say, "What are you talking 24 saying. So -- 22 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 898 1 about? There can't be a deal unless everyone gets 1 2 414." Yes or no? Q. Page 900 Well, you go on and say, in that same 2 sentence, "... as determined by Moelis after all 3 A. No. I did not say that at that time. 3 required deductions are made so that the unit holders 4 Q. Now, can we look at 2406. Do you have 4 receive a price as per the Oxbow ... Agreement." 5 that in front of you? Just let me know. Do you see that, sir? 5 6 A. I have it. 6 A. You're right. I did say that, sir. 7 Q. And will you identify that below, the 7 Q. And isn't it a fact that you had 8 bottom of the first page, is an e-mail that you sent 8 9 to Mr. Hurst, copying Mr. Coumantaros, Mr. Popeo, 9 A. 10 Mr. Carr, on March 18. 11 Mr. Popeo review this e-mail before it was sent out? I'm not sure. 10 Q. You don't deny that, do you? Do you see that, sir? 11 A. I don't deny it, but I'm not sure. I 12 A. Yes. 12 13 Q. And I want to look at what you wrote 13 didn't run every e-mail I did by him. Q. Okay. And you can look through your 14 at that time. This is in relation to the ArcLight 14 e-mail, but can you confirm to me you don't mention 15 LOI. 15 anywhere in this e-mail "414" or "same price to all 16 unitholders" or "equal treatment of all unitholders"? 16 You say, "My response to your email is 17 as follows: My initial reading of the ArcLight Letter 17 Those concepts which you've testified about for a day 18 of Intent suggests that the proposal is below the 18 are not mentioned anywhere in this document, are they, 19 required Fair Market Value as determined by Moelis 19 sir? 20 after all required deductions are made so that the 20 21 unit holders receive a price as per the Oxbow LLC 21 22 Agreement." 22 Hurst, and then above -- I'm sorry. The e-mail you Do you see that? 23 sent to Mr. Hurst. Mr. Hurst responds. And then, Yes. 24 above that, you forward on to Mr. Popeo an e-mail in 23 24 A. A. Doesn't look like it. Q. Now, you received this e-mail from Mr. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (29) Pages 897 - 900 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 901 Page 903 1 which you wrote, "I will cooperate as much as 1 A. They were superstars. 2 Crestview has with us. I do not see how my signing 2 Q. Let's go back to 2406, so we don't go 3 LOI is [in] the interests of Oxbow or the unit 3 4 holders." 4 A. Okay. Did you see that? 5 Q. One of the required deductions that A. Yes. 6 you were telling Mr. Hurst, or you had in mind, at Q. What you were telling Mr. Popeo was 5 6 7 too far astray. 7 least, when you wrote your e-mail, that you said was a 8 that you weren't prepared to cooperate in this 8 required deduction so that the unitholders receive a 9 process; isn't that a fact, sir? 9 price as per the Oxbow agreement, was the 27.9 million No. I was -- I was saying something 10 to top up the OCIC and Ingraham members; correct, sir? 11 more than that. I said, "I do not see how my signing 11 A. I disagree with that. 12 LOI is in the interest of Oxbow or the unit -- or the 12 Q. Well, when you said, "require 13 unit holders." And there's a very strong reason for 13 deductions," you don't disagree that one of the 14 that. 14 required deductions that you had in mind was that 27.9 15 that you had seen from Mr. Freney the day before? 10 A. Q. 15 Well, was it your view that Crestview 16 had been very cooperative with you, and so the 16 17 sentiment you were expressing was we'll be very 17 because I sent those to Bob Popeo and said, "Would you 18 cooperative with Crestview? Or just the opposite? 18 let me know whether this is a valid thing or not." 19 That's true. 19 A. Crestview had been somewhat A. Q. No. I -- I still disagree with that, You asked Bob Popeo to let you know 20 cooperative. But not as -- and the -- but they had 20 21 their agenda, and they were pushing that agenda much 21 whether the 27.9 reference in Mr. Freney's various 22 farther than I said that I believed was practical and 22 analyses -- and we're going to look at a whole bunch 23 could be accomplished. 23 more that he did -- is your testimony you sent that to 24 Bob Popeo to ask him whether this was valid or not? Q. 24 Mr. Koch, did I hear you say earlier CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 902 1 in your direct testimony, "Most people operate a lot 1 A. 2 by their own hidden agendas"? Is that your testimony 2 March 28. 3 today? 3 Q. Page 904 Well, that's why he wrote the memo on I understand that. But is that what 4 A. Yes. That's right. 4 your testimony is, that you asked Mr. Popeo to tell 5 Q. Is that actually the way in which you 5 you whether that 27.9 was a valid deduction or not? 6 7 go forward in life, with that belief? A. 6 I -- I try not to, because I've been a A. I told him to look at this analysis 7 and tell us what was -- what was valid and what wasn't. 8 subject to that. I try, as I did in the America's 8 9 Cup, I -- there was a guy could steer the boat better 9 10 than I did, so I stepped off the boat and said -- not 10 been studying this agreement for a year. I was there 11 the boat. I stepped off the position and said, "You 11 in '07 and negotiated it. I'm a religious fanatic 12 drive, because I want to win." 12 about equal price, equal treatment, same price"? 13 Q. Well, I don't want to digress from the Did you say to him, "By the way, I've You didn't say any of those things, at 13 14 least in any document that you've seen in this case, 15 A. Uh-huh. 15 have you? 16 Q. -- in the America's Cup you fired 16 14 17 18 19 20 21 22 23 24 discussion, but while we're on this point -- Q. three sailors; correct? A. 17 Well, let's put it another way: I cut them from the team. Q. Because you believed that they were being disloyal to you; correct? A. I've said it in my deposition, and -- and -- 18 Q. Okay. 19 A. -- but am I going to lecture Bob 20 21 Popeo? I was going to ask him questions. Q. Sir, please, can I just have an answer to my question? A. No. They were not being team members. 22 Q. We'll look at your deposition 23 A. Uh-huh. I'm -- 24 Q. In all of those discussions that testimony on that. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (30) Pages 901 - 904 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 905 1 you've told us about, you would agree with me, you're 1 2 not aware of a document -- not one -- where you wrote, 2 A. 3 in words or substance, that in '07, and your 3 Q. All right. Well, let's get to -- 4 understanding of the agreement was equal price, same 4 A. -- in a month or so. 5 terms, or 414. Would you agree with that? 5 Q. Page 907 Court to testify, haven't you, Mr. Koch? No. I haven't seen this letter -- -- the letter, in any event. 6 A. 7 wrote it? 7 response to the ArcLight proposed letter of intent, or 8 Q. You never wrote it? 8 what we've been calling the LOI. 9 A. No. I didn't write it. 9 10 Q. Now, if we can go to 2410. This is a 10 6 That I never said that or I never Now, this letter is a specific Do you see that? A. Yes. Q. And if you turn to the second page, 11 letter from Ropes & Gray. And just so the Court 11 12 understands, you had retained Ropes & Gray to 12 you'll see that your lawyers, your advocates, write, 13 represent you, meaning Bill Koch and OCMH personally; 13 in the first full paragraph, "In any event, even if it 14 correct? 14 were an appropriate time to consider this one-off 15 expression of interest outside of a formal Exit Sale 16 process, the Proposal is deficient on the merits in multiple material respects." 15 16 A. To work -- I would say Ropes & Gray was retained by Bill Koch and OCMH. 17 Q. Okay. 17 18 A. Okay? 18 19 Q. And Ropes & Gray had been retained 19 A. Yes. Q. Now, you would agree, based upon what Do you see that, sir? 20 sometime in the middle of or the fall of 2015; right? 20 21 They had been in this -- in this picture for quite 21 you told us, that if the proposal didn't 22 some time? 22 satisfy -- the ArcLight proposal didn't satisfy 414, 23 A. 23 or same terms or equal price, that would be pretty 24 material; correct, sir? 24 I'm not sure the exact date, but I thought it was earlier than the fall. Much earlier CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Page 906 1 than the fall. 2 Q. Fair enough. 2 3 A. And I thought it was sometime in 3 4 5 either late spring or early summer. Q. And you wouldn't allow your lawyers to A. Page 908 It would be. But it would have other causes and effects. Q. And let's see what your lawyer -- they 4 identify 11 ways in which they found the ArcLight 5 proposal to be materially deficient. 6 send out a letter unless you had reviewed it before it 6 7 went out; correct, sir? 7 A. Yes. 8 Q. The first one says, ArcLight's 8 A. On a letter -- if they were going to Do you see that? 9 the outside world, I agree, they would send it to me 9 valuation fails to meet FMV after the deductions are 10 before. If they were sending it to another lawyer, I 10 required to be taken. 11 might not see it. 11 12 Q. 13 Crestview. 14 A. That's -- that's true. 14 other reasons, but it doesn't have any reference to 15 Q. And so you reviewed this before it was 15 the ArcLight letter of intent being $250 short of what it would take for there to be an exit sale. Well, they were sending this to Do you see that? 12 A. Yes, I do. 13 Q. And then it goes on and it has ten 16 sent because you wanted to make sure that the message 16 17 to Crestview was clear as to what your position was; 17 18 isn't that true, sir? Would you agree with that? 18 A. It doesn't have that entered in here. 19 A. Well -- 19 Q. And that's because as of March 19, you 20 Q. Yes or no? 20 and your lawyers at Ropes & Gray hadn't even discussed A. I'm struggling with that, because I'd 21 that concept; isn't that true? 21 22 23 24 have to read the letter to -- to see if that's right. Q. Well, you've seen this letter in the last few days as you've been preparing to come to this 22 A. No. 23 Q. Is it your testimony, sir, that that 24 concept had been discussed, the 414 had been CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (31) Pages 905 - 908 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 discussed, with Ropes & Gray prior to that date -- 2 3 4 A. Yeah. Yes, I do. Q. And it's copied now to all these I don't know, for -- 2 Q. -- and they just chose to omit it from 3 A. lawyers in simple black and white. Do you see that? 4 I -- I recall discussing with Ropes & Page 911 1 A. their list of 11? 5 W. I. Koch - Cross Page 909 5 A. Yes. Q. And then he attaches, on the last page 6 Gray the 1.5 provision early on. And I -- I -- and I 6 7 know that Bob Popeo did. And there was a reason for 7 8 leaving it out. And that reason was -- 8 A. I see it. 9 Q. And you're not aware of any of those 9 Q. 10 this letter? Was the reason for leaving it out in of 2459, his support for that. 10 lawyers -- Popeo, Prounis, Azzi -- saying, in response 11 to this, "Wait a minute. This isn't what's allowed 12 continue our financing, and we didn't want to get into 12 under the agreement, Jim. You've got it backwards"? 13 litigation at this point. If we brought that up, it 13 14 would be purely -- that would spark litigation, we 14 15 thought. 11 A. Yes. And that was, we wanted to A. Yes. I do respond -- I do know that one lawyer did, and -- 15 Q. That's Mr. Popeo, on March 28? 16 Q. Let's look at 2459. 16 A. Bob wrote, seven days later. 17 A. 24 what? 17 Q. Seven days later. We're going to get 18 Q. 59. Do you have that? 18 19 A. Yes. 19 A. That's right. 20 Q. All right. And you see on the screen, 20 Q. Okay. And you certainly didn't, after there. 21 this is yet another analysis by Mr. Freney on -- this 21 you received this e-mail, write to Freney, who had now 22 one on March 21, where he e-mails Mr. Popeo, yourself, 22 sent you -- I've lost count -- three or four of these 23 Othon Prounis. That's your lawyer at Ropes & Gray. 23 analyses, you didn't write to Freney in response to 24 any of those to say, You got it wrong." Do you see that? 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 W. I. Koch - Cross Page 910 A. Yes. 1 Q. He now includes a gentleman by the Page 912 Do we agree on that? 2 A. No, I didn't. 3 name of Pierre Azzi. We heard his name mentioned 3 Q. Let's turn to 2451. Let me know when 4 once. Pierre Azzi is an Oxbow in-house lawyer? 4 you have that in front of you, Mr. Koch. Are you there? 5 6 7 A. Yes. 5 Q. And Mr. Azzi also works for you in a 6 personal capacity from time to time? 7 A. 2451. Just a second. Here. I got Q. Thank you. And you'll see, this is it. 8 A. Yes. 8 9 Q. And yesterday you testified, I 9 another analysis from Mr. Freney on March 21, copying 10 believe, that he was the one in-house lawyer in 10 the same group. He says, "Attached is the revised 11 Oxbow's legal department that you actually find to be 11 analysis calculating the equity value per unit based 12 trustworthy. 12 on Goldman's methodology of starting with the implied Do you remember that testimony? 13 enterprise value of ArcLight's indication of No. I said I trusted him greatly. 14 interest." 13 14 15 A. And then he asks, "Please review the 15 It's -- 16 Q. Trusted him. Okay. 16 transaction specific adjustments of [115] million and 17 A. There are other lawyers that I found 17 let me know if you have any comments before we share 18 this with Goldman." 18 19 trustworthy. There were some that I did not. Q. Now, looking at 2459, Mr. Freney Do you see that? 19 writes, on March 21, "Attached is the analysis 20 21 supporting the $27.9 million required to ensure that 21 22 all unit holders achieve a minimum 1.5x their 22 specifically puts a question to Bob Popeo and Othon, 23 aggregate capital contributions." 23 from Ropes, and says, "Any input you have on the 24 estimated legal fees, please let me know." 20 24 Do you see that? A. Yes. Q. And then he goes on and he CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (32) Pages 909 - 912 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Page 915 Do you see that? 1 Q. It's on the page ending 23727. A. Yes, I do. 2 A. Wait a minute. I'm at 2444. Q. And you understood this was another 1 2 W. I. Koch - Cross Page 913 3 Q. Right. 4 opportunity for you, before this document gets sent to 4 A. Okay. 5 Goldman, to tell Mr. Freney it's correct, it's 5 Q. Go to the attachment, Mr. Freney's 6 incorrect, it includes things that it shouldn't, it 6 7 misdescribes things in a way. 7 A. 8 Q. Yes. 23727. 9 A. Are you talking about the Bates I did. But -- 10 number? 3 You had that opportunity here, didn't 8 9 you, sir? 10 A. 11 Q. The lawyers had that opportunity here? 11 12 A. I did. But I was waiting to get Bob's 12 13 Project Diamond analysis. Q. Well -- 14 15 A. -- made a fuss about it. 15 16 Q. And you're not aware of any document, 16 Q. It's on the screen right in front of A. Yes. It's the same analysis he did Q. And he still refers to the amount you. 13 final analysis before I -- 14 Is that 23727 or -- before. required to achieve 1.5 for all unitholders. Do you see that? 17 prior to March 28, where Mr. Popeo, Mr. Prounis, 17 18 Mr. Azzi comes back and says, "Hold on. We don't have 18 19 this right," are you? 19 20 A. No. 20 Q. Do you see that, sir? 21 Q. If we can look quickly at 2471. I'll 21 A. Yes. I see it. Q. Okay. Let's move on. And now let's 22 pull it up on the screen. It will be a quick 22 23 question, if we can blow that up. 23 And, in fact, what we see at 2471, in 24 A. Yes. It's interesting, all these are around the same time period. look at 2463. Do you have that in front of you? 24 A. CHA NCE RY COU RT REP ORT ERS Yes. CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 914 the middle of the page, is you actually gave some 1 2 comments to Mr. Freney on the e-mail he had sent you 2 Mr. Freney with yet another analysis on March 22, at 3 asking you to review the deductions. 3 the bottom of the page, where he's now managed to find 4 Do you see that? 4 $122 million of transaction expense-related Yeah. I already said that. I said I 5 deductions. 5 6 A. Q. Page 916 1 6 gave comments to him on legal expenses. And you see, this is now -- you have Do you see that? 7 Q. But nothing about the -- 7 A. Yes. 8 A. No. 8 Q. And he had been working for days and 9 Q. -- 27.9? 9 trying to keep pushing that number down, wasn't he, A. That's all I -- that was the only 10 sir? 10 11 12 comments I made, as I recall. Q. Let's look at 2444. This is yet 11 A. Looks like it. 12 Q. And then you take his analysis, 13 another document from Mr. Freney, March 21, talking 13 including the reference to that $27.9 million number, 14 about revising the ArcLight price purchase analysis 14 and you forward it on to Mr. Carr at Goldman Sachs? 15 with various deductions. 15 A. And if we can flip -- 16 Q. Do you see that? That's -- what again? 2444? 17 A. I did. Q. And when you did so, you expected that 16 Yes. 17 A. 18 Q. 2444. 18 19 A. And I finally found it. 19 Goldman Sachs was going to use it in the materials and 20 Q. And if we look at the attachment from 20 analyses that it was doing; correct? 21 Mr. Freney, there's a reference again to 27.9 as the 21 22 "amount required to achieve minimum 1.5 ...." 22 expected Goldman Sachs to do, but I was giving them Do you see that? 23 the analysis that we had done. What page is that on? 24 23 24 A. A. Q. CHA NCE RY COU RT REP ORT ERS I'm not sure what I would have Now if we can look at 2442. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (33) Pages 913 - 916 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross 1 A. Page 917 Boy, you got us jumping around. 2 Q. Yup. 2 3 A. Got it. 3 4 Q. And 2442, what we see is on March 4 1 Q. Page 919 Let's move to a different document. 2469. And 2469, there is an e-mail from you on March 22 to your lawyers at Ropes & Gray -- 5 20th, there's a -- I'm sorry. On March 21, at the 5 A. Uh-huh. 6 top, you write to Mr. Carr at Goldman, and others, and 6 Q. -- where you're commenting on a letter 7 you say: "Do NOT give this analysis to Crestview 7 8 until my team has had time to digest it, discuss it 8 9 with you, and revise it with you. I was only able to 9 10 read it when I got to my house at about 10:00pm from 10 11 dinner with my children on spring break." 12 that they were preparing. Do you see that? A. Yes. I believe -- let me read it first, because I actually don't remember this. 11 Q. Okay. Do you see that? 12 A. Yes. I've read it. Q. All right. And let's, just so we're 13 A. Yes, I do. 13 14 Q. And the analysis that Goldman had 14 all clear on what you were doing here, you're making 15 prepared, based upon the information that you had been 15 comments to a letter, and just starting with your 16 providing to it -- if we turn to the page ending in 16 first comment, the second sentence, where it says, 17 Bates No. 113870 -- 17 "1st page 2nd paragraph 3rd line." You write, "We 18 A. Yes. 18 want to be deducted from the total price so it lowers 19 Q. -- titled "ArcLight Proposal 19 the net value of the units." 20 Analysis." You see, three lines down, Goldman's 20 21 analysis includes "$27.9 million as a deduction for 21 22 the "[1.5] Return Adjustment." 22 23 24 A. Do you see that? A. Yes. Q. And then going down two more Do you see that, sir? 23 paragraphs, where it starts, "2nd page 2nd paragraph Yeah. I see it. It's there. 24 6th line." You write, "Please tell me if Section 7(c) CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. W. I. Koch - Cross Page 918 And then there's a footnote at the 1 means that the expenses the company pays are Page 920 2 bottom of the page, it's at the end of Footnote 3, 2 deductible from the total amount paid for the company 3 where it says, "Includes impact of transaction 3 to determine unit value in the determination if the 4 adjustments estimated by Oxbow management on [March 4 unit price is greater or less than $169/unit." 5 17, 2016]. Transaction adjustments include $27.9 5 6 million required to achieve the minimum [1.5] 6 A. Yes, I do. 7 aggregate capital contribution of all unitholders." 7 Q. Okay. So what you're trying to do Do you see that? 8 there is you're trying to make sure that all the A. I'm having a hard time reading it, 9 possible deductions are taken to push that ArcLight 10 176 number down to the -- below the 169 fair market Q. It's on the screen in front of you. 11 value threshold? 8 9 10 11 12 13 14 Do you see that, Mr. Koch? but -Might be bigger. 12 A. That's correct. Q. And the only reference in here -- the A. Yes. I see that. 13 Q. And that Goldman analysis was -- after 14 only threshold you discuss in this letter is that 169 15 you approved it, was circulated to Crestview and Load 15 FMV threshold; correct, sir? 16 Line; correct, sir? 16 A. That's correct. 17 Q. 2479, please. 18 A. 2479? Yes. 19 Q. These are your handwritten notes, 20 correct, Mr. Koch? 17 18 A. did circulate it to Goldman. 19 Q. 20 Load Line? 21 I don't believe I approved it, but I Not Goldman. You mean Crestview and 21 A. Yes, they are. 22 and Load Line. Goldman did it. And what irritated me 22 Q. And these are handwritten notes of a 23 was they did it before we had a chance to review it. 23 call that you were on with Bob Popeo and others on 24 So that's -- 24 March 23; correct? A. I did not circulate it to Crestview CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (34) Pages 917 - 920 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 921 1 A. Yeah. 1 2 Q. And let's first start with the line 2 Q. Page 923 There was no discussion about equal treatment to all unitholders? 3 right below the names. You write, regarding the 3 4 purposes of the call, "purpose has ArcLight reached 4 think it's -- I'd have to read the whole notes and get 5 threshold." 5 back to you on that. 6 Do you see that? 6 A. I'm not sure there was, but -- I don't Q. And there was no discussion about 414 7 A. Yes. 7 being required in order for there to be an exit sale; 8 Q. And you knew ArcLight didn't reach 8 correct? 9 10 11 9 anything close to 414; correct, sir? A. Well, if you let me read the notes, I A. It hadn't, no. 10 could tell you whether there was or not, but it Q. The only threshold that you were 11 doesn't look like -- I don't see 414 -- 12 discussing with your legal team and Goldman was the 12 Q. Okay. 13 176; correct? 13 A. -- 414 written into them. Q. I'm sure if it's in there, your 14 15 16 A. Yes. That's correct. 14 Q. And then, going down a little bit, you 15 lawyers will direct your attention to it when they get 16 back up afterwards. Do you see that? 17 A. see that you write, "[1.5] analysis." 17 Okay. 18 A. Can -- I can't find it. 18 Q. 4277, please, Mr. Koch. 19 Q. Under 1. Oh, I'm sorry. I think it 19 A. 4277? 20 says, "Jim analysis." 20 Q. Yeah. 21 A. Yeah. That's right. 21 A. Yes. Q. I misspoke. Pardon me. "Jim 22 Q. Are you there? These are Mr. Popeo's 22 23 24 analysis." 23 A. notes. You do recognize his handwriting? 24 Yeah. A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. Yes, I do. W. I. Koch - Cross Page 922 Q. Page 924 Again, this was a reference to the 1 Actually, pretty good handwriting. 2 analysis that Mr. Freney had been doing in calculating 2 3 the amount it would take for all unitholders to 3 way, are Mr. Popeo's notes of March 23, the same day 4 achieve -- If you turn to -- and this, by the 4 of the call we just looked at where you had your That's right. 5 notes. Q. -- 1.5; correct? 6 A. Yes. A. Yeah. 7 Q. And I'm going to direct your attention 8 Q. Yes? 8 to the page ending 27223, and you'll see there's an 9 A. (Witness nods head). 9 entry there, point 5. And Mr. Popeo is recording a Q. And, in fact, you make a reference 5 A. 6 7 10 10 conversation that he had with Michael Carr and 11 there. Let's look down a couple of lines. There's a 11 Stephanie Cohen. 12 "34.8," and you have a couple of different numbers. 12 13 And then you write, "gross 27.9." 13 Q. That's the same 27.9; right? 16 A. Okay. I'm sorry. A. That's right. 17 Q. And you'll see, and we're highlighted Q. And right next to it, to make it clear 18 on the screen. And he writes, "ArcLight will reach 19 threshold easily." 16 17 21 It's the third page -- well, it's 15 A. 20 Q. 14 Yes. 15 19 On -- on what page? Do you see that? 14 18 Do you see that? A. what you were talking about, you wrote "1.5." A. That's correct. 20 Q. Okay. You'd agree with me there's 27223. Do you see that, sir? 21 A. That's what it says. 22 nowhere in your notes where there's any discussion 22 Q. Now, have you read Mr. Carr's 23 about same price? 23 24 A. No, there wasn't. 24 deposition transcript? A. CHA NCE RY COU RT REP ORT ERS No. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (35) Pages 921 - 924 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 925 Page 927 1 Q. Has it been described to you? 1 Q. We'll look at documents. 2 A. I read a brief summary of it. 2 A. -- but if you point it out, I could Q. Are you aware that Mr. Carr testified 3 3 stand to be corrected. 4 that he had been -- it had been represented to him by 4 5 the company that the 27.9 number represented the 5 through the letter, although I suspect we're going to 6 company's interpretation of what the LLC agreement 6 be breaking for lunch. 7 required for there to be an exit sale? 7 8 Q. We're going to look at it as we go Let's focus on what Mr. Kelly wrote. 8 A. 9 Q. You're not aware of that? 9 A. Uh-huh. 10 A. If you show it to me, I'd appreciate 10 Q. -- "This revision reflects a narrow Q. We'll look at that testimony after the 11 11 it. 12 13 No. I don't remember that. engagement by Goldman only to cover an Exit Sale ...." 12 lunch break. Now if we can look at 2305. And let 14 So he writes, in the second paragraph -- Do you see that? 13 A. Yes. 14 Q. And then he goes on to say, "... under 15 Article XIII, Sections 8(e) and (f), of the operating 16 A. Yes. 16 agreement, and not any general engagement to sell all 17 Q. We talked about Mr. Kelly a little bit 17 or parts of Oxbow ...." 19 A. Uh-huh. 19 A. Yes. 20 Q. But this is an e-mail that you 20 Q. So here is what Mr. Kelly is telling 15 18 21 me know when you're there. earlier. Do you see that? 18 actually received from Mr. Kelly; correct? 21 you, which is we, Mintz Levin, have proposed an 22 A. Yes, I did. 22 engagement letter that's an exit sale whole-company 23 Q. And Mr. Kelly, in his e-mail -- I 23 only, as opposed to something other than that? 24 think you were shown this document on your direct by 24 A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 926 1 Mr. Leone-Quick. I want to cover a couple of points 1 2 in his e-mail. 2 3 Well, Rich Kelly could have been And just so we set the stage for His 3 Page 928 proposing that. Q. All right. Let's move down a little bit. Two paragraphs down. 4 Honor, you understood that what Goldman was 4 A. Uh-huh. 5 negotiating, and what Mr. Kelly was negotiating with 5 Q. He writes, "This revision also says in 6 Goldman, was this concept where there would be a fee 6 brackets that Goldman's fee increases as a percentage 7 paid to Goldman for finding a buyer at a particular 7 of per Unit value received above a threshold of $190 8 level, and there would be a bonus, called an 8 .... Goldman had suggested 169 .... This upward 9 outperformance fee, paid to Goldman if it achieved a 9 revision to $190/Unit was intended for two purposes." 10 higher level. 10 11 12 We're going to get to those in one You understood that; right? 11 second. But what you understood Mr. Kelly to be I understood something else too -- 12 telling you was there would be a fee at 169 and there 13 that this fee arrangement would cover both the 13 would be a bonus at 190; correct, sir? 14 minority financing as well as total sale. A. 14 A. That's right. We'll get to that. You understand, 15 Q. And he goes on to explain why he 16 though, Mr. Koch, that from your standpoint, you were 16 thinks this 190 threshold for the bonus makes sense. 17 proposing that the Goldman engagement letter only 17 First he says, "to reward and incentivize 18 covers a full company sale. And it was Goldman that 18 outperformance above an appropriate threshold ...." 19 said, "We want to have some protection in case Bill 19 We've covered that. 20 Koch goes off and does some minority financing while 20 And in number 2 he says, "to cover 21 we're trying to sell the whole company." 15 Q. 22 23 24 A. 21 without broadcasting ... at this time that the sale You understood that, didn't you? 22 price will need to be above $169 ... in order for I don't believe so. I don't remember 23 holders of Units to net at least $169 ... as is 24 required for such an Exit Sale (not to mention the that -CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (36) Pages 925 - 928 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 929 1 extra amounts needed to assure all holder[s] will get 1 2 at least 1.5 times their respective investments)." 2 Page 931 emerged at 414? Yes or no? A. I didn't -- I didn't have a discussion Do you see that? 3 using those exact words. I had another discussion 4 A. Yes. 4 with them in which they said the 1.5 issue has to be 5 Q. And you're not aware of ever writing 5 resolved. 3 6 back to Mr. Kelly, when you received this, and saying 6 Q. And that came up much later. 7 to him, "By the way, I don't agree with that statement 7 A. Yes, it did. 8 in here. There can't be an exit sale unless there's a 8 Q. I'm asking you at the time of the 9 414 number"? 9 negotiation, in February and March. You've told us that according to your testimony -- 10 11 A. I didn't write him back on that issue. 10 Q. Now, you would agree with me that if 11 A. Uh-huh. 12 Goldman was negotiating an engagement letter that got 12 Q. -- you knew 414 was the number January 13 it paid if it achieved 169 and got it paid a bonus if 13 1. You knew it back in August of 2015. Here, you 14 it got 190, it would all have been a pointless 14 have a team negotiating an engagement later. It has 15 exercise for Goldman to take on the engagement or 15 two thresholds, 169 and 190. 16 negotiate such an engagement letter if the bogey that 16 17 Goldman had to clear for there to be an exit sale was 17 ask anyone to tell Goldman, "They need to understand 18 414? You would agree with that logic, wouldn't you? 18 this may be a complete waste of time unless we get 19 414"? Yes or no, sir? 19 A. Not necessarily. Because you might be 20 able to find a strategic partner who really wanted the 20 21 company and would pay a very high price for it. 21 Well, at that point in time, didn't 22 23 you tell the Vice Chancellor, in your direct, that you 23 24 thought 190 was pie in the sky? 24 22 1 2 3 Q. A. A. No. I don't believe I did at that point in time. THE COURT: All right. Let's break right there. We'll come back after lunch. Oh, I will say this: I would like to CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 930 Well, 190 for a minority interest was pie in the sky. Q. Did you yourself ever tell Goldman, or Well, the fair market value of the Page 932 1 check in with you-all after lunch as to where we stand 2 on time. You-all have raised the issue of extra time 3 and sent me the letters about it when we had the 4 company as a whole, without any minority discount, was 4 settlement resolution. If we can have a couple-minute 5 169 at that point in time, wasn't it? 5 discussion when we get back, just to give me an update on where that stands, that would be great. 6 A. Well, but the -- that -- 6 7 Q. Yes? 7 8 A. No. I'm -- because I'm going to tell 8 9 you something. That was a -- that was a number put 9 10 together by some investment bankers. And I have found 10 11 that investment bankers are often wrong on their 11 12 numbers. 12 13 Q. Let me go back to my question. Did 13 14 you honestly believe, Mr. Koch, in the February/March 14 15 2016 time period, that there was any realistic 15 16 possibility that a buyer was out there who was going 16 17 to pay 414 for the company? 17 18 19 20 A. I -- I thought it was an extremely low 18 19 probability at that point in time. Q. MR. CARLINSKY: Thank you, Your Honor. (The luncheon recess was taken at 12:30 p.m.) Now, did you ever say to Goldman, or 20 21 instruct your team to tell Goldman, as they were 21 22 working on negotiating an engagement letter that set 22 23 two thresholds -- one at 169 and one at 190 -- that, 23 24 in fact, there couldn't be an exit sale unless a buyer 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (37) Pages 929 - 932 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross AFTERNOON SESSION 1 2 3 4 W. I. Koch - Cross Page 933 Page 935 1 designated on June 20 as a potential rebuttal witness. (Resumed at 1:30 p.m.) 2 His deposition was noticed. It was subsequently THE COURT: Before we get back 3 unnoticed. We never got a request for his deposition. underway, can we have a quick chat about time? And yes, I said that the only 4 5 MR. CARLINSKY: May I address that? 5 witnesses in our case were the ones we identified, but 6 THE COURT: That would be great. 6 we always had the right to have a rebuttal case. And MR. CARLINSKY: So first of all, I 7 Mr. Popeo's name has come up a lot, more than once or 8 think the only live witness left in the case, as I 8 twice, in this trial. 9 understand it, is Mr. Koch. 9 7 10 THE COURT: Yeah. So basically what I THE COURT: Great. 10 want to do is take this in steps. So I, at least MR. CARLINSKY: The other three that 11 right now, was initially focused -- I'm glad you 12 the plaintiffs had indicated they might call, who were 12 raised Popeo, but I had at least been initially 13 Messrs. Freney, Parmelee and Clark, they've removed 13 focused on aggregate time that you all needed and 14 from their list. We've agreed, as a result, with the 14 division of time. 15 Court's permission, of course, that in lieu of 15 16 bringing them here live, we -- I think it's really 16 still in a position to be done, do you think, by the 17 both sides, but we, the defendants, would have the 17 end of the day tomorrow, or is that something where we 18 option of putting in up to 30 minutes of video per 18 would potentially need to have time next week? 19 witness to be played in court tomorrow, again, 19 20 allotted against our proportional time. And we would 20 be done. The way this was set up at the beginning was 21 work on cutting those video clips today, but at least 21 a certain number of hours for each side divided 22 we would know it's an hour and a half total at most. 22 equally. If you do the math, I think we're in 23 agreement that we have two hours left and they have 24 however many hours they have. And they can use their 11 And then we would finish up Mr. Koch 23 24 today and tomorrow, hopefully, I expect we will, and So if we go the Popeo route, are we MR. NACHBAR: No, we are prepared to CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 we would be done by the end of the day tomorrow. THE COURT: All right. That sounds 2 3 good. Page 936 1 time however they want to use their time. We'll use 2 our two hours, and we'll be done on Friday. THE COURT: Okay. 3 MR. NACHBAR: The only thing I would 4 W. I. Koch - Cross Page 934 MR. CARLINSKY: Can I respond on that, 4 5 say is that we may have a rebuttal witness. We have 5 6 the right to do that. And if we do, we will. So I 6 7 don't want to leave unaddressed the "Mr. Koch is the 7 8 only witness." He may be, but he may not be. 8 there was going to be a witness called who had not 9 been deposed, we would have an opportunity to depose MR. CARLINSKY: Well, the other day I 9 Your Honor? THE COURT: Sure. MR. CARLINSKY: It was agreed that if 10 had heard that the only witnesses left in the case, in 10 that witness. We had been left to believe, throughout 11 plaintiffs' case, they identified were Mr. Koch and 11 the course of -- at least as we got into trial, that 12 these three, who they've now dropped. We were not 12 there was not going to be Mr. Popeo testifying. 13 told that they were still considering a rebuttal 13 14 witness. 14 counsel throughout the case. Now, I realize he hasn't 15 been serving as trial counsel. So while I understand The only rebuttal witness they had 15 He had been serving as lead litigation 16 identified in their pretrial order, I believe, was 16 Mr. Nachbar's position, I would suggest to Your Honor 17 Mr. Popeo. Mr. Popeo has not been deposed, which was 17 we would object to Mr. Popeo. 18 one of the conditions. And if it is Mr. Popeo that 18 19 Mr. Nachbar is referring to, obviously, we have 19 hope it's not, but if it is, we'd have an 20 objections since it wasn't something we've addressed 20 opportunity -- I would like to depose Mr. Popeo, and 21 the last four or five days. 21 I'm focused on Mr. Koch. So the proposal would then 22 be we would depose Mr. Popeo and, unfortunately, we 23 would have to get together another time. It can't be 24 done tonight or tomorrow. But I don't know if that's who you had 22 23 24 in mind. MR. NACHBAR: He is the person who we If that objection is overruled, and I CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (38) Pages 933 - 936 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross If in fact, -- obviously, they haven't 1 W. I. Koch - Cross Page 937 Page 939 1 weekend, while, you know, from time management might 2 committed that they're going to call Mr. Popeo but if 2 be attractive, from a human standpoint is probably 3 they did -- 3 unattractive. THE COURT: Look, I think that will be 4 4 So let's table this now with the 5 a reflection on how good you are. If you do a good 5 following thought. If the Koch team decides to call 6 job with Mr. Koch, then they're going to call 6 Mr. Popeo, there's a high likelihood I'm going to let 7 Mr. Popeo, so you should view that as a compliment. 7 them, but the high likelihood I'm going to let them is 8 If they don't end up calling Mr. Popeo, then that's 8 contingent on you all having the possibility to depose 9 probably the most candid feedback you've ever gotten. 9 him. And then we have to figure out a way practically 10 to make that happen that doesn't mess up too many 11 people's lives. MR. CARLINSKY: I guess I'll go back 10 11 to sleep. 12 I know Your Honor is messing with me. 12 13 THE COURT: I'm just messing with you. 13 14 I apologize. 14 Here's my initial reaction to this. 15 MR. CARLINSKY: Yes. THE COURT: And that's probably all we can do about this right now. Does anybody else have any burning 15 16 And I'm trying to be fair to everybody. But I have a 16 desire to make a comment or push something? 17 predicate question. I had suggested earlier that to 17 MR. CARLINSKY: None. 18 maximize the efficiency of trial time, we push off the 18 19 experts. 19 Honor. I was just wondering in terms of timekeeping, MR. GARDENER: Good afternoon, Your 20 Where do we stand on an expert day? 20 since we're going to submit dueling, as it were, video 21 MR. NACHBAR: I think we've agreed 21 clips, I'm not sure I see the necessity of having to 22 that we don't need live testimony of the experts. 22 be in the courtroom live. We can just give the tapes 23 Their reports are in, for whatever they're worth. We 23 to Your Honor and Your Honor could run them at his 24 think Your Honor can read them if Your Honor has any 24 pleasure. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 938 Page 940 THE COURT: I'm happy to do that too. 1 interest in them. And you may not, but if you do, 1 2 fine. But we don't need live testimony. I think 2 It's actually a little more comfortable for me to sit 3 we're all agreed on that. 3 on a couch, not in my robe. I'm not going to go any 4 MR. CARLINSKY: We are. 4 further than that. But as I say, let's deal with 5 THE COURT: Then let me give you a 5 those logistical things. Let's see how it turns out, 6 preliminary reaction to this, and you all can either 6 because maybe we don't have to cross this bridge. But 7 push me off it now or we can revisit this at the end 7 that's my inclination at the moment. 8 of the day, because I don't want Mr. Koch sitting here 8 MR. CARLINSKY: Thank you. 9 on the stand and I don't like to keep witnesses 9 MR. NACHBAR: Thank you, Your Honor. 10 waiting while we do a lot of the lawyerly stuff. 10 11 If you all want to call Mr. Popeo, I'm THE COURT: Great. Let's proceed with 11 further cross. BY MR. CARLINSKY: 12 going to let you, but at the same time, I don't want 12 13 the Crestview team to go into that cold. And I 13 14 personally have a selfish interest in them not having 14 Mr. Carr's testimony. You'll recall before we took 15 to conduct a discovery deposition on the stand. So I 15 the lunch break, I had asked you about Mr. Carr's 16 think what I would do is structure that so that both 16 testimony. 17 those things could happen. 17 18 Back when we were debating multiple trial days and things like that, I mean, I have 19 20 blocked off the possibility of coming back Monday. We 20 21 could also do it at a later point. 21 I mean, I know that when I did Mr. Koch, I'd like to show you Scott, would you mind queuing that up? MR. GARDENER: Can we have a citation, 18 19 22 Q. please? MR. CARLINSKY: 270, line 11, through 271, line 7. 22 MR. GARDENER: Thank you. 23 whole-week trials I was wiped out. So I think the 23 (A video clip was played as follows: 24 idea of everybody going into a deposition over the 24 "Question: And isn't it a fact that CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (39) Pages 937 - 940 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 941 Page 943 1 all of those calculations with the make-whole 1 some way in order for any type of sale to go forward, 2 adjustment and computing the 27.9 were in the context 2 whether it was a full company sale or a minority 3 of a potential compromise transaction, because 3 financing? 4 Crestview was taking the position that they could just 4 5 leave these unitholders in the company and not pay 5 that, in front of the board. 6 them anything and Oxbow is taking the position that's 6 "Question: 7 reflected on page 6 of Exhibit 35, and the top-off or 7 on this engagement even though you knew that there was 8 make-whole adjustment was a potential compromise for 8 this dispute between Oxbow and Crestview and Mr. Koch 9 both parties? 9 about how the exit sale provisions would work in the 10 hopes that the parties would find some way to resolve 10 "Answer: The 29.7 had no relationship "Answer: I previously testified to And you continued working 11 to any kind of compromise. That was never 11 that 1.5 issue and that you could find a transaction 12 characterized that way. This was characterized as the 12 that would be mutually acceptable to everyone? 13 company's interpretation of the make-whole. There was 13 "Objection." 14 no proviso that was predicated on some kind of 14 (No audible response on video clip) 15 resolution between the parties." 15 "Question: And that's what you 16 (End of video clip.) 16 continued to do in April, May, June of 2016, until the 17 MR. CARLINSKY: Did you recognize the 17 litigation was filed; is that right? 18 "Objection. 19 "Answer: Correct." 18 voice -MR. LEONE-QUICK: Your Honor, I'm 19 20 sorry. For purposes of completeness, can we play a 20 (End of video tape.) 21 clip that I believe is the question immediately 21 MR. CARLINSKY: May I continue, Your 22 following that, at 272, 14, to 274, 12? 22 23 THE COURT: You may. 23 24 MR. LEONE-QUICK: COO 1. 24 Honor? THE COURT: You may. BY MR. CARLINSKY: CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 W. I. Koch - Cross Page 942 (A video clip was played as follows: 1 "Question: 2 You agree that there were Q. Page 944 Mr. Koch, would you please turn to 2490 in your binders? Tell me when you're there. 3 a number of disputes between Crestview and Oxbow 3 A. I'm at 2490. 4 throughout Goldman's engagement on a variety of 4 Q. And you see that 2490 starts on the 5 issues; is that fair to say? 5 second page with an e-mail from a Mintz Levin lawyer 6 named Eric Macaux, on March 24th, to Mr. Leone-Quick, 7 one of your lawyers in this case, and then there's a 8 continuation of the discussion. 6 7 "Answer: I testified to that at least twice. 8 "Question: And you didn't view it as 9 Goldman's role to resolve those disputes or render 9 10 legal interpretations about the LLC agreement; is that 10 Mr. Leone-Quick -- "Greg and I spoke at length this 11 fair? 11 morning, and the attached reflects our comments on the And Mr. Macaux writes, "Bret:" -- 12 "Answer: We're not lawyers. 12 letter." This was a draft of a letter that ultimately 13 "Question: 13 Mr. Popeo sent on March 28th. 14 counsel available to it, so if there was a legal issue 14 15 that you needed to deal with, you could consult with 15 flag a point Greg raised regarding the 1.5x, which I 16 Goldman legal counsel if you needed to, but you didn't 16 don't think we have discussed. Because Exit Sale 17 see that as your role in this engagement; is that 17 proceeds must be paid pro rata ... incorporating by 18 fair? And Goldman has legal And he writes, "I especially want to 18 reference Section 9(b), ArcLight cannot simply 19 "Answer: We're financial advisors. 19 increase their offer $27.5 million to get a handful of 20 "Question: 20 Members their 1.5x." And is it fair to say that 21 once it became clear to you that there was a dispute 21 22 between the parties about the 1.5 provision and how it 22 A. Do you see that? Yes. 23 would be applied in the context of an exit sale, you 23 Q. And then if you go above, 24 recognize that that dispute needed to be resolved in 24 Mr. Leone-Quick, who had been working for you at this CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (40) Pages 941 - 944 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 945 Page 947 1 point for nearly a year in assisting you in analyzing 1 A. Yes. 2 and understanding the agreement, writes. "Thanks; 2 Q. And isn't it a fact, sir, that the 3 [this] is an interesting and promising argument. I 3 demarcation line from when the discussion goes from 4 want to make sure I [fully] understand it ... Are we 4 27.9 to the small holders for an exit sale to the 5 saying that 9(b) requires allocation of the purchase 5 argument that there couldn't be that kind of a payment 6 price in accordance with Article XI, Section 1 and 6 occurred as a result of this development of the fun 7 that [this] section requires distributions to be made 7 new theory? 8 per percentage interest? So this precludes any one 8 A. 9 member from getting a true-up or higher percentage of 9 Q. You disagree with that. 10 the proceeds than their ownership percentage? This 10 A. Yes. 11 seems to hang together to me." 11 Q. So your testimony is that you were not 12 I disagree with that statement. Do you see that? 12 aware that there was this development of this fun new theory? 13 A. Yes. 13 14 Q. And then the continuation -- the 14 A. No. In fact, the only time I ever 15 discussion continues with Mr. Leone-Quick talking 15 heard about it was in this litigation. Never heard 16 about various arguments to be made. 16 about it before. Never heard about the phrase the 17 "fun new theory." And I want you to hold that thought, 17 18 and I want to show you another document, which is 18 19 2495. If you would flip to that in your binder, I 19 point in time where your lawyers told you that there 20 think it's the next document. Do you have that? 21 22 Q. Did you understand that this was the 20 was this requirement that everybody be treated with A. Yes. 21 the same price? Q. And you'll see that this is the same 22 23 day but later in the evening of the e-mail that we 23 24 just looked at. And Mr. Leone-Quick is writing to 24 A. They told me that a long time ago. This wasn't the point. Q. CHA NCE RY COU RT REP ORT ERS So have you seen any documents, CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 946 Page 948 1 Mr. Popeo and he copies a series of Mintz Levin 1 Mr. Koch, in all the documents you reviewed, prior to 2 lawyers. 2 March 24, 2016, where your lawyers told you that under 3 the LLC agreement, all unitholders had to get the same price? 3 And he writes to Mr. Popeo and he 4 says, "Bob, here is a more recent draft for your 4 5 review. It includes comments and thoughts from Eric 5 A. 6 and Greg, including a fun new theory on how the 1.5x 6 Q. Can you identify any for us? 7 threshold can work to potentially block an Exit Sale. 7 A. Yes. I believe it was a document that 8 Below are some general and specific comments from Rich 8 9 on the letter that I thought would be helpful for you 9 10 to see as you give the letter your review." 10 11 Do you see that, sir? 11 I believe I have. was prepared in May 2015 or thereabouts. Q. By whom? A. It doesn't say, but I testified -- that was given to me yesterday. 12 A. Yes. 12 13 Q. And were you advised that on 13 want to talk about what Mr. Kelly says in his e-mail. Q. We'll look at that in a minute. I 14 March 24th, your lawyers at Mintz Levin had come up 14 And Mr. Kelly, you understood, was the corporate 15 with this fun new theory as a means of blocking a 15 partner. Correct, sir? 16 potential exit sale? 16 A. Yes. 17 A. No. 17 Q. And Mr. Kelly writes, "I have a number Q. Were you told that at some point in 18 of things to say about our lobbing a seven-page 19 argumentative letter (with lots of hot allegations about the pre-history)" -- 18 19 20 21 time after March 24th? A. About a fun new theory? No. 20 Q. But you were told -- we looked at 21 A. 22 documents before the lunch break where everyone was 22 Q. Right on the front of 2495. 23 talking about a $27.9 million payment to the small 23 A. I'm sorry. I was looking at the 24 holders. Do you remember all that testimony? 24 Excuse me. Where are you? previous page. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (41) Pages 945 - 948 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Page 949 THE COURT: I was confused too, so 1 W. I. Koch - Cross 1 whatever is needed in order to top up the little Page 951 2 we'll pick up together. 2 non-1.5x parties to 1.5x so long as that does not push 3 BY MR. CARLINSKY: 3 the topping-up parties below receiving $169 a unit at 4 Q. Do you have that in front of you? 4 the end of the day. This contrary idea is to avoid 5 A. 2495. 5 the tail wagging the dog in an Exit Sale, which 6 Q. Yeah. 6 immediately comes to mind when you try to figure out 7 A. Oh, under -- 7 what this provision in Section 8(e) and related 8 Q. Rich's comments? 8 provisions mean when read together." 9 A. Excuse me. It's under "(Rich's 9 10 comments are as follows)" Is that what you're 10 11 referring to? 11 Do you see that, sir? A. Yes. That's what it says here. Q. Then I want to go down to another 12 Q. That's what I'm focused on. Yes, sir. 12 paragraph, skip the next, and go to the bottom. "I 13 A. Okay. Thank you. 13 just want to be sure that we properly gauge the 14 Q. "I have a number of things to say" -- 14 strength (and the side-effects) of these positions 15 and then I want to go on, "... at Crestview at this 15 before asserting them full [blast] -- full-force in a 16 point in time when we are trying through the use of 16 blast at Crestview and its advisors, especially when 17 Goldman and otherwise to lengthen the process to allow 17 we are pyramiding contract interpretations. 18 time and process leading to a final business solution 18 Pyramiding might unwittingly prompt a more 'common 19 (we have no ultimate stopper - Crestview and Load Line 19 sense' interpretation of the whole Section 8(e) along 20 will ultimately get exited as they have a right to 20 the lines mentioned by Crestview (Carlinsky?)" -- I've 21 be)." 21 never had common sense -- "on the call when Crestview Do you see that? 22 (Carlinsky) said the answer is that the below 1.5X 23 A. Yes. 23 parties can just stay on the boat and that qualifies 24 Q. And then going down a paragraph, skip 24 or modifies any other rights anyone may have which 22 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 950 1 one, let's go down to the paragraph that begins "More 1 2 narrowly." Do you have that in front of you? 2 3 4 A. Yes. 3 Q. Mr. Kelly writes, "More narrowly, as 4 Page 952 might otherwise be impacted." Do you see that, sir? A. Yes. Q. And now, were you aware that those for the most recent email exchanges on the draft 5 6 letter, what is being argued is a theory I understand. 6 A. No. 7 By the way, are we going to get MNAT's reading on 7 Q. -- at Mintz Levin, their corporate 8 these LLC ... provisions or do without? I know what 8 9 position we are taking regarding the 1.5X provision in 9 10 order to tack on to the total price whatever dollars 10 11 are required to be paid to satisfy the per-Member 11 12 minimum multiple of 1.5X (and why we like that in 12 draft letter that had been underway. And if you -- 13 terms of the FMV minimum [requirement]) but the 13 it's part of the same document. And if you turn to 14 [corollary] reasoning" -- I'm sorry -- "the contrary 14 the page -- it's the page ending Mintz 24006. Do you 15 reasoning is that" -- 15 have that in front of you, sir? 16 A. I'm sorry. You missed a word there. 16 17 Q. I changed it to "contrary." 17 A. No. There, you said "fair market 18 5 18 19 minimum argument." were Mr. Kelly's views -- partner on the transaction? A. No, I wasn't. This is the first time I've ever seen this e-mail. Q. A. Now let's look at the letter, the Yes. MR. NACHBAR: What's the JX number, please? 19 THE COURT: Same one. MR. CARLINSKY: 2495. 20 Q. Right. 20 21 A. You said "agreement." 21 22 Q. "... but the contrary reasoning is 22 BY MR. CARLINSKY: Q. Do you see that's the letter that 23 that it is implied that other members need to (and 23 Mintz Levin had written Mr. Leone-Quick and Mr. Popeo, 24 have implicitly agreed to) forego or reallocate 24 the team that had been working on this matter with you CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (42) Pages 949 - 952 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 953 Page 955 1 on this for a year. What they had written was -- 1 Greg Fine, Joe Price, Eric Macaux re Oxbow - financing 2 starting at the second full paragraph in their draft, 2 alternatives." 3 they write, "While the Company initially believed that 3 4 one possible solution to this issue would be to have 4 5 extra proceeds from the Exit Sale be directed to such 5 6 Members so that they did hit this 1.5x threshold." 6 No. 4: "Crestview must net $169M after investment banking fee and a payout to Ingraham." 7 Do you see that? A. Yes. Q. That's 1.5 hours. And look at Item Do you see that? 7 8 A. Yes. 8 9 Q. Now, the final letter changes that 9 A. I've never seen these before. 10 language. But, sir, were you aware that Mintz Levin, 10 Q. I understand that. I'm just showing 11 your lawyers, were stating in writing that it was the 11 12 company's belief, from at least the point when they 12 A. So you have to ask Bob about those. I 13 got on board -- 13 14 15 16 I'll tell you -- 14 Q. -- that the LLC agreement called for a 15 top-off? 17 18 A. Do you see that? you -can't comment on them. Q. Unfortunately, we may get that opportunity. But, Mr. Koch, isn't it a fact that 16 A. I'll tell you, quite bluntly, that wasn't the company's belief. 19 And I view these letters as our -- 17 what Mr. Popeo and the Mintz team were advising you is 18 the way to determine whether there could be an exit 19 sale was to determine the amount that would be paid 20 Rich Kelly's letter as figuring out how many angels 20 separately to the small holders and then determining 21 dance on the head of a pin. And I could tell you, it 21 whether you still cleared the 169 FMV threshold? 22 wasn't a company belief. There may have been people 22 A. They were not telling me this. 23 in the company who had that idea, but it wasn't the 23 Q. So they were keeping this secret from 24 belief. 24 1 2 Q. you? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 954 Mr. Koch, would you turn to 2259? Do you have that in front of you, sir? 1 Page 956 Well, lawyers kept their musings and A. 2 their different views secret until they come up with 3 A. Yes, I do. 3 what they think is the right approach, so, I mean, 4 Q. Let's give His Honor a chance to pull 4 it's not unusual. Q. 5 it. 2259 are another set of Mr. Popeo's notes. These 5 6 are from February 12, 2016. Well, let's look, then, at what 6 happened on April 6th. Do you remember that there was I'm sorry. I went to 2594. I didn't 7 a board meeting on April 6? 8 go to 2259. I apologize. That means I got to go to 8 9 another book. 9 7 A. A. I don't remember a board meeting on April 6th but that doesn't mean it didn't happen. 10 Q. Are you there, Mr. Koch? 10 Q. 11 A. Yes, I am. 11 you sit here today? Q. Turn to the second page of Mr. Popeo's 12 A. I remember some, but -- 13 Q. Yesterday you testified that you 12 13 notes from February 12. Now, this is before ArcLight. This is 14 15 before the 176 price proposal had been received. Do you remember any board meetings as 14 remembered board meetings in 2011. Do you remember 15 when you gave that testimony? 16 A. What is -- 16 17 Q. It reflects -- 17 board meetings. And as you said, we had one on A. What is the number of the Bates stamp 18 April 6th, and you asked me if I remembered that board 19 meeting. I do not, but I have notes on it. If you 20 show me the notes, then I'll tell you. 18 19 you want me to look at? 22 23 24 Yes. But I said we've had lots of Q. I want you to look at the Bates number A. Yes. 22 Q. You'll see on that page, it says, 23 A. 2 what? "Conference call with Rich Kelly, Bret Leone-Quick, 24 Q. 2550. 20 21 A. 27292. 21 Q. Well, we'll look at the minutes. 2550, please, sir. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (43) Pages 953 - 956 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 957 Page 959 1 A. 2550. 1 2 Q. Yes, please. Do you have that? 2 3 A. Yes. 3 discussion was raised, anyone -- yourself, Mr. Koch, 4 Q. Do you see these are the minutes of 4 Mr. Popeo, Mr. Leone-Quick -- anyone saying, Wait a 5 minute. It can't be done that way under the LLC agreement? Do you recall that? 5 the meeting of the board on April 6, 2015? 6 A. Yes. 6 Q. coming up. Q. Do you recall that when this And obviously it lists all of the 7 A. No. 8 directors that were in attendance, and it also lists 8 Q. And, in fact, what happened at that 9 some other attendees, including Mr. Popeo and 9 meeting, if we look at the bottom of page 3, what the 10 Mr. Leone-Quick. Do you see that? 10 board did was it actually issued a resolution telling 7 11 A. That's right. 11 Goldman Sachs to go back to ArcLight to seek 12 Q. May I direct your attention, if I may, 12 clarification of ArcLight's letter of intent to see 13 whether it could get, with respect to those deductions 13 please, sir, to page 2, the bottom of those minutes. 14 15 A. Yes. 14 ironed out, the number up above 169. That's what Q. On April 6th, Goldman -- you'll see at 15 happened, sir. Correct? 16 the bottom, it says, "A discussion ensued among 16 A. Let me read it because -- 17 various Board members and the Goldman team regarding 17 Q. Of course. 18 the implied enterprise value, equity value, equity 18 A. -- I think you're plagiarizing it. 19 value adjusted for dilution and equity value adjusted 19 Not plagiarizing it. What do you call the word? 20 for the 1.5x 'make whole' return mechanism, under each 20 Exaggerating it. 21 of the ArcLight proposal, the ArcLight proposal as 21 22 adjusted by Goldman to reflect updated and additional 22 23 information, and the hypothetical case of an improved 23 that Goldman Sachs be, and [is] hereby ... authorized 24 ArcLight proposal as contemplated by Goldman." 24 and directed to simultaneously approach ArcLight with It doesn't say what you said it said. And I'll read it. "FURTHER RESOLVED, CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Do you see that? 1 Page 960 updated information regarding the Company, seek Page 958 2 A. Yes. 2 clarification of ArcLight's [May] 16, 2016 letter of 3 Q. And then it goes on in the next 3 intent and advise ArcLight that the Company believes 4 sentences to talk again about -- it says, "Mr. Carr 4 that the indication of interest set forth in that 5 noted that the equity value of the ArcLight Proposal, 5 letter of intent was not preemptive." 6 as adjusted to reflect updated and additional 6 7 information, dilution and make-whole, was below the 7 8 $169 per unit threshold ...." 8 instruction was, was to go back to ArcLight and see if Do you see that, sir? 9 you could get more definitive terms on their letter of intent. Correct, sir? 9 10 A. Yes. 10 11 Q. Now, when Mr. Carr was having this 11 That's what this says. Q. A. And what you understood the Well, it says "seek clarification of 12 discussion with the board, the full board, and your 12 13 lawyers, Mr. Popeo and Mr. Leone-Quick there, about a 13 14 1.5 make-whole and the deduction that had to be taken 14 anyone else in that board meeting say, in words or 15 for that amount in determining whether ArcLight 15 substance, that there was no point in going back to 16 cleared the 169 threshold, there was no one in that 16 ArcLight because they were in the 176 or 170 or 160 17 meeting who said, in words or substance, There can't 17 range, and in order for there to be an exit sale, we 18 be this make-whole under the LLC agreement. Correct, 18 were $250 short of a 414 requirement? 19 sir? 19 A. I do not recall that being discussed. Q. And, in fact, it wasn't discussed, was A. As I said, I do not recall it being 20 A. I don't see that in this. 20 21 Q. And you certainly don't recall that 21 22 coming up, do you? 23 A. 24 22 Do I recall it coming up? I barely recalled -- I barely recall this make-whole thing 23 24 ArcLight's letter," so ... Q. At any point in time, did you or it? discussed. Q. CHA NCE RY COU RT REP ORT ERS What was discussed was ArcLight -- I'm CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (44) Pages 957 - 960 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 961 Page 963 1 sorry -- Goldman, go back to ArcLight and see what you 1 A. That's right. 2 can do. Fair? 2 Q. At this point in time, what Mr. Popeo 3 was telling you was that he believed the appropriate 4 there was a lot of confusion in that, in that letter, 4 interpretation was OCIC and Ingraham could get 27.9 5 and I -- 5 and that Ropes was taking the position -- they were your counsel. 3 6 A. It was to seek clarification, because Q. Well, there was no confusion -- 6 A. And I do remember talking about that, 7 A. I -- 8 and I basically said it wasn't an offer. It was just 8 Q. -- that everyone had to get 450 a 9 a right to negotiate. And there was a lot of -- there 9 10 was a whole number of things that were confusing and 10 A. I disagree with your conclusions of 11 unclear and unstated. So ... 11 7 share. what these notes say, because -- 12 Q. Can we look at 4281, please? 12 Q. Let me ask you -- 13 A. Okay. 4281. 13 A. Excuse me. All it says is "(3) 1.5 14 Q. Yes, sir. 14 for Ingraham/ICIC equals 27.94" and under that, "Ropes 15 A. Yes. 15 & Gray says 100% must receive $450 a share." I don't 16 Q. These are Mr. Popeo's notes from 16 know what you conclude from -- 17 April 8th? 17 18 A. Yes. 18 19 Q. So two days after the April 6th 19 Q. Do you recall -- A. -- number 3, but from number 4, I think that's fairly clear. 20 meeting we just looked at, and you'll see, if you turn 20 21 to the first page, 4978, there is an entry one from 21 talked about this in deposition, do you remember in 22 the bottom, ".5. Telephone conversation with Bill 22 fact Mr. Popeo telling you at one point he disagreed 23 Koch re Oxbow." 23 with Ropes' interpretation? Do you see that? 24 24 Q. A. CHA NCE RY COU RT REP ORT ERS A. 2 3 4 5 6 7 In my deposition? CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Mr. Koch, do you remember, and we W. I. Koch - Cross Page 962 Page 964 I don't see -- you said 4938? 1 Q. Yes. Q. 4978. 2 A. Would you point that out to me? A. I don't think I'm on the same page. I 3 Q. Let me ask a question without 4 turned to 4277. reference to your deposition. Q. 4281. 5 A. I apologize. I'm at the wrong place. 6 told you at some point that he disagreed with Ropes' 7 interpretation? Okay. You want me to go to 4978? Isn't it a fact, sir, that Mr. Popeo 8 Q. Correct, sir. 8 9 A. Yes. 9 remember my sending him a letter to him saying I don't Q. One entry from the bottom, .5, 10 want to hear any more talks about top-off. A very reflecting a conversation Mr. Popeo had with you. 11 stern letter about that, yes. 10 11 12 13 14 A. I'm having a hard time finding it, because it's got -- looks like -Q. Right there on the screen. It might 12 A. Q. I don't remember that but I do So you sent a letter to Mr. Popeo 13 telling him you didn't want to hear any more 14 conversation from Mr. Popeo about top-off? 15 be easier for you to look at it right there. It's 15 A. Yeah, and -- 16 highlighted, "Telephone call with Bill Koch"? 16 Q. And that was some point after April, 17 A. Yes, thank you. 17 18 19 Q. I draw your attention to Item No. 3. 18 A. Mm-hmm. 19 20 Q. "1.5x for Ingraham/ICEC equals 20 A. I've forgotten. You'd have to look at it. You can dig out the letter. It's fairly clear. Q. Let's go, if we can, to 4282. We just 21 looked at Mr. Popeo's notes from April 8th. These are 22 A. Yes. 22 Mr. Popeo's notes from April 11th, three days later. 23 Q. And then it says, "Ropes & Gray says 23 And I'm going to direct your attention to the page 24 ending 9446. And I realize it's a little tough to 21 24 $27.9 million." Do you see that? wasn't it? 100% must receive 450 a share." Do you see that? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (45) Pages 961 - 964 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 read but they're up on the screen in front of you. 2 W. I. Koch - Cross Page 965 1 Mr. Popeo is there recording another Q. 2 Let's go to -- do you have 3119 in 3 conversation with you, Bill Koch, and with his 3 4 partner, Mr. Leone-Quick. I direct your attention to 4 A. Yes. 5 the second and third points. 5 Q. These are Mr. Leone-Quick's 6 And the second point, he writes, 6 Page 967 We can move on. front of you, sir? handwritten notes from April 12, 2016. 7 "Ropes & Gray disagrees with interpretation regarding 7 A. 8 1.5x out of proceeds of sale." 8 Q. Nope. 3119. 9 A. I'm sorry. 10 Q. Do you have those in front of you? A. No. I'm struggling with it. Again, 9 10 That is what Mr. Popeo told you, isn't it, sir? 11 A. Probably did. 11 12 Q. And then it goes on in the next line 12 13 to say, "Agree that interpretation unlikely to succeed 13 14 in Court." 14 15 Do you see that, sir? 15 16 A. Yes. 16 17 Q. That is something else that Mr. Popeo 18 19 told you, isn't it? A. He was giving me a lower probability 3199? what is the number? 319? Q. 3119. If it makes it easier, they're right up on the screen in front of you. A. Well, let me find it. 17 Q. Are you there? 18 A. Yes. 19 Q. The first page of Mr. Leone-Quick's I found it. 20 in court. And he likes to quote me, and said 20 notes refers to a call, Bill, and then a call with 21 underpromise and overperform. 21 David Hennes and Dan. That's Dan Chirlin? 22 23 24 Q. Let me ask the question again. Mr. Popeo's statement to you -A. I've already answered that question. 22 A. 23 Q. Okay. 24 A. But don't know for certain. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. I believe so. W. I. Koch - Cross Page 966 His statement to you was that he 1 Q. Page 968 Then below that, do you see "BP" for 2 thought that the interpretation was unlikely to 2 Bob Popeo, "450 a share or 27.9 of own money could 3 succeed in court. Can we agree on that? 3 cause a court to do it." 4 5 6 A. That's what he stated. That's what it 5 says here. Q. 7 Do you see that? 4 A. Yes. Q. And that's consistent with what Let's look at JX 3119. 6 By the way, just so we're clear, the 7 Mr. Popeo's advice had been to you two days earlier. Correct, sir? 8 interpretation that he said was unlikely to succeed in 8 9 court was the Ropes' interpretation that everyone had 9 10 to get 450. Correct, sir? 10 think these notes are Bob Popeo's. You ought to ask 11 him. 11 12 A. I'm not sure on that because I don't A. I don't know whether it is or not. I 12 Q. These are Leone-Quick's. Well, you didn't think what he was 13 A. What? 14 talking about was the 27.9, which would have allowed 14 Q. Let's go down a couple of lines. 15 an exit sale to go forward, did you? 15 13 quite follow his notes. Q. 16 A. Could you repeat that statement again? 16 17 Q. Yes, sir. 17 You didn't understand the statement 18 18 You'll see there's a reference to Ropes. "Ropes: even though words are ... court could say as long as you get 1.5x, that's it." Do you see that, sir? 19 about interpretation unlikely to succeed to be 19 A. That's what it says. 20 anything other than the Ropes position that everyone 20 Q. That's what Ropes was advising you, 21 had to get 450 or there couldn't be an exit sale. 21 wasn't it? MR. HENNES: Objection, Your Honor. 22 A. I'm not sure he did that. 22 23 Q. Well -- 23 Our privilege with Mr. Koch is intact. There's been 24 A. It did say what you did. 24 no suggestion that privilege has been waived. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (46) Pages 965 - 968 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 969 Page 971 1 Mr. Carlinsky asked Mr. Koch what Ropes had advised 1 A. Yes. 2 him at that point in time. 2 Q. And is that consistent with what 3 3 Mr. Popeo and Mr. Leone-Quick were telling you they 4 notes of the advice that was given. How he can claim MR. CARLINSKY: Your Honor, these are 4 were handicapping the chances that this "everyone 5 that there's been no waiver -- I think Your Honor's 5 needs to get 450" argument would succeed in court? 6 orders addressed this, but even if they hadn't, we're 6 7 looking at the very notes of the advice that was being 7 Popeo, I know he was handicapping at 50/50. And I 8 given. And these were never claimed to be privileged, 8 don't know who was handicapping it here, the 28 or 25 9 nor were they ever clawed back. And they were shared, 9 to 30 percent. I don't know who that was. 10 by the way, with Oxbow, who apparently is part of 10 11 these discussions. 11 of documents, including a number of documents either 12 from or to you. 12 THE COURT: So I think he can ask the A. Well, I know in discussions with Bob Q. Okay. Now, we've looked at a number 13 types of factual questions he's asking about what took 13 A. Mm-hmm. 14 place at this meeting. I'm not going to address 14 Q. And in none of those documents that 15 whether or not it's a broader waiver. I don't think I 15 we've looked at so far today, you would agree with me, 16 need to. But in terms of whether this, in fact, was 16 do you ever say anywhere that what you intended back 17 said or not, I think that's a fair question. 17 in 2007 was this idea that there would be same price, 18 BY MR. CARLINSKY: 18 equal treatment for all unitholders. You haven't seen 19 such a document. 19 20 Q. Mr. Koch, that is what Ropes had advised you. 21 A. 20 Well, unless the Judge orders me to A. I have seen such a document, and I 21 believe it was November 5th or something, or 4th of 22 say that or to answer that question, I would say this 22 2015. And I've got to scratch my memory and review 23 is -- I don't even believe I was on this meeting or 23 that and see if it does say that. 24 whatever meeting it was. You'd have to ask Bret what 24 Q. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Page 970 1 these notes mean. I don't know. THE COURT: I'm sorry. I 2 Sitting here today, you know Mr. Popeo Page 972 -- 2 A. What? 3 misunderstood it. Were you present for this call or 3 Q. That November document, we're going to 4 is this just a lawyers' call? 4 look at it at some point, either today or tomorrow 5 morning. You know that document doesn't say anything THE WITNESS: I think -- it just says, 5 6 Bill, all available on 27th of April. And then it 6 about same price, equal treatment of all unitholders. 7 says, Call with David Hennes and Dan. Then it says 7 Right, sir? 8 another -- it doesn't have my name other than just at 8 A. I think it does say -- 9 the very top. So I don't believe I was on this call. 9 Q. We can look at it. 10 A. We can look at it. 11 Q. Let me go back -- Let me ask a -- 12 A. I'll be happy to look at it. MR. HENNES: That was the basis for my 13 Q. I didn't mean to speak over you. And THE COURT: All right. 10 11 BY MR. CARLINSKY: Q. 12 13 14 objection. THE COURT: I misunderstood. That's 15 16 my fault. MR. CARLINSKY: I'll withdraw that 17 14 I apologize to both you and the court reporter for 15 doing so. I'll try to be more patient. 16 Earlier in your examination, you said 17 that you believed there was a document back from May 18 question. 18 of 2015 from Mintz Levin. I think this was a document 19 BY MR. CARLINSKY: 19 you were shown yesterday in your direct. 20 Q. Mr. Koch, looking at the next page, Can we bring 3129 up on the screen? 20 21 there is a question put regarding this discussion. 21 You were shown this document 22 "What's your handicapping?" And then it says, 22 yesterday, and I think your testimony was you don't 23 "Chances 25 to 30%." 23 remember ever having seen it at the time, but you have 24 seen it since. 24 Do you see that? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (47) Pages 969 - 972 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Do you remember this document? 1 A. Yes. Yes, I do. 2 Q. Now, this was a Mintz Levin document, 1 2 3 W. I. Koch - Cross Page 973 Page 975 to give same price, equal treatment, to all members? A. I would have to go back. I haven't -- 3 as I recall, I haven't put any of that into an e-mail 4 or at least it was represented by Mr. Leone-Quick to 4 form or into a written document, except I believe I 5 be a Mintz Levin document. 5 may have it in notes. And so I'd have to go back. 6 And I'll be happy to do it, if you want, go back and 6 I'm going to ask you to turn to the 7 second page, backside of it. And do you see there's a 7 look at all my notes and look at all the documents 8 reference there to 1.5? Do you see any reference to 8 I've gone through. Ruin my evening, but I'll be happy 9 "same price," "same terms," "equal treatment," or 9 to do it. 10 "414"? 10 11 12 A. I don't see it in the section that you highlighted. Q. 13 In fact, Mr. Koch, you know that it 11 Q. Now, Mr. Koch, if we can look at 3199, tell me when you're there. 12 A. 13 Q. Those are your notes. Right? A. This is certainly not my note. Q. Well, this is how it was produced. I'm here. I'm there. 14 was the advent of the fun new theory on March 24th 14 15 where for the first time your lawyers and ultimately 15 16 you took the position that there was this requirement 16 17 under the agreement that there be same terms, same 17 A. 18 price, equal treatment. Isn't that true, sir? 18 Q. Your handwriting? 19 A. What? Yes. 20 Q. And it's Oxbow 366404. Right? 21 A. Yes. Q. Go back a page. And it says at the 19 20 A. LLC agreement, Section 7(d) and 9(b), state that. Q. 21 22 No. As I read the LLC agreement, the And have you seen -- you've seen a lot of documents in this case. Correct? 22 23 A. Yes. 23 24 Q. You've seen a lot of documents that 24 Let's look at the second page. Okay. top, "Legal meeting 11/4 ...." A. CHA NCE RY COU RT REP ORT ERS It says, "Legal meeting 11/4/15." CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 974 1 were shown to you to prepare you both for your 1 2 depositions and your testimony today. Q. Page 976 That's the meeting that was had on the 2 day that that PowerPoint presentation occurred that we 3 A. Yes. 3 looked at yesterday in your direct testimony. 4 Q. And you would agree with me you've not 4 Correct, sir? 5 seen a single document anywhere on earth, anywhere on 5 6 earth, where you, in writing, have referred to 7(d) 6 7 and 9(b) in the same context of what you just told us. 7 it, what happened that day -- correct me if I'm A. I believe that's correct. Q. And the legal meeting, as I understand 8 A. I said it in my deposition, clearly. 8 wrong -- there was a board meeting that included the 9 Q. Now, I didn't ask you about your 9 Crestview and Load Line attendees, and then later on, 10 there was a private legal meeting that excluded them. 11 Is that consistent with your recollection? 10 deposition. Your deposition -- 11 A. You asked me any document, and the 12 deposition is a document. I'm sorry to fight with 12 13 you. 13 have to go back and look at my board notes and also look and see if there was a board meeting that day. A. I just don't remember right now. I'd 14 Q. Fair point. I am talking to a -- 14 15 A. But -- 15 16 Q. I'm talking to an MIT grad, so I get 16 presentation, that PowerPoint presentation, the focus 17 of it was on the ThoughtWorks strategy? 17 18 that. Leaving aside the testimony that you 18 Q. A. Do you remember that the focus of that You reminded to me, there was a board 19 gave in your deposition, would you agree with me, 19 meeting and there was Bob Popeo and Ken Nachbar there. 20 Mr. Koch, in all the years and with all the documents 20 So I think this refers just to the whole meeting of 21 you've been shown, four days of deposition testimony 21 the disinterested directors as well as the lawyers. 22 here, review of the record, you've not seen a single 22 23 document authored by William I. Koch which refers to 23 24 7(d) or 9(b) or says in words that this was intended 24 Q. But you'll agree with me, Crestview and Load Line were not in that meeting? A. CHA NCE RY COU RT REP ORT ERS No, of course not. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (48) Pages 973 - 976 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Q. 1 Page 977 Now, looking at your notes, these were W. I. Koch - Cross Q. 1 Page 979 Are you suggesting that you were 2 notes that you were taking contemporaneously while you 2 writing down this legal analysis from someone in the 3 were sitting at the meeting, listening to the lawyers 3 meeting who was a nonlawyer? 4 drone on? 4 A. I was generally trying to write down 5 A. Yes. 5 certain points. If you look further down, you'll see 6 Q. And going down about five entries, 6 "MM: Does ThoughtWorks [works] instructions apply to Oxbow. 7 you'll see it refers to, "Exit sale. All members have 7 8 to sell." 8 9 10 A. MR. LEONE-QUICK: The screen appears to be incorrect. That may be one problem. who said this -- 12 Q. And you don't remember -- A. -- because I didn't put the notes What's the Bates number? 13 14 MR. CARLINSKY: 366404. 14 16 17 BY MR. CARLINSKY: Q. So I -- as I said, I can't answer on 11 13 15 "CWO. Do not want outside [no] doing evaluation with Evercore." 10 please. 11 12 9 I don't see that. Help me out, there. 15 Now, you have it on the screen in What? 16 front of you. 17 And Christina was always willing to offer legal advice. Q. Mr. Koch, going back to the comment 18 A. Yes. 18 19 Q. Do you see there's a reference that 19 about someone has to come up with cash for Ingraham 20 delta -- 20 says "Exit sale"? 21 A. 22 23 24 Yes, it does. 21 Q. "All members have to sell"? 22 A. That's what it says. 23 you recall at that point you saying or anyone saying, Q. "They say so what. Not all at 1.5x." 24 Well, wait a minute. There can't even be an exit sale A. Yeah. Q. -- your notes don't reflect it, but do CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 A. 2 3 W. I. Koch - Cross Page 978 Page 980 unless everyone gets 414. That's right. 1 Q. "Ingraham not received anything." 2 A. A. That's right. 3 Q. In fact, that was never discussed. 4 Q. "[Someone] has to come up with cash 4 A. I don't know whether it was or not. 5 for Ingraham delta." 5 Q. You don't recall it being discussed, 7 A. No, I do not. Q. Now, if we can continue on these That's your symbol for delta. 6 7 6 Correct, sir? I didn't write that down, no. do you? 8 A. That's what it says. 8 9 Q. So there was a discussion about 9 notes, if you can go to the next page, and I know we 10 someone coming up with the delta to get Ingraham to 10 jumped out of order, but there's the notes. Remember 11 1.5 in that very meeting with all those 11 where we were before I took a little bit of a detour. 12 well-intentioned and well-credentialed lawyers. 12 We were talking about April of 2016 and what it was 13 Correct, sir? 13 that Bob Popeo was telling you and advising you. 14 A. Well, there was another lawyer there, Do you see the next page, there are 14 15 who was Michael McAuliffe, and he had quite a bit of 15 these notes: "Bob Popeo 4/12/16." Do you see that, 16 different opinions than the others. So I usually 16 sir? 17 would put down here, like "BP talked to Michael" and 17 18 stuff like that. So I can't say with any certainty 18 19 now who was saying this. 19 20 Q. But you would agree with me you took 20 21 down the notes of something that one of the lawyers in 21 22 the meeting told you. Correct? 22 23 24 A. Or someone else said. You know, there were other people in the meeting. 23 24 THE COURT: Can you give me the Bates number of this, again? MR. CARLINSKY: Yes, sir. I think it's 366569. THE COURT: Great. Thank you. BY MR. CARLINSKY: Q. And these are your handwritten notes of a discussion with Bob Popeo. Right? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (49) Pages 977 - 980 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 981 1 A. Yes. 1 it was intended to be compensatory? Don't you 2 Q. And we had just looked at a series of 2 remember that's what he was telling you? 3 notes, Mr. Popeo's notes, Mr. Leone-Quick's notes, 3 4 Mr. Leone-Quick making reference to what Mr. Nachbar 4 5 or, rather, what Ropes was apparently saying. 5 6 6 On April 12th, when you spoke to A. Page 983 As I said, I disagree with you. And you could resolve it very easily by asking Bob Popeo. Q. Okay. Let's go, if we can, to JX 4283. 7 Mr. Popeo, he told you, or you wrote down, "Would not 7 A. JX what? 8 win on argument - document meant to be compensatory." 8 Q. 4283. Another set of Mr. Popeo's 9 10 11 A. Have I read your notes correctly? 9 notes. And if you go to the page ending Mintz 9454. Yeah, but I don't know what argument 10 Are you there, sir? 11 A. Yes. 12 Q. And you see there's an entry, it says, is being talked about there. 12 Q. Popeo was telling you that he thought 13 the Ropes theory that everyone had to get 550 -- 13 .6 hours. It says, "t/c Bill Koch -- re Oxbow." And 14 strike that -- 414, or 450, whatever they were saying, 14 the entry below that starts with, "need letter from 15 was an argument that would not win because the LLC 15 Ropes & Gray re 1.5x"? 16 agreement, in his professional opinion, was meant to 16 A. Yes. 17 be compensatory. Isn't that true, sir? 17 Q. "RRP letter made clear that 1.5 can't 18 be paid to unitholder out of proceeds but doesn't make 19 clear that all unitholders must receive 1.5x out of 20 proceeds - for those represented by Bill Koch that making assumptions. I'm reading your notes of a 21 means $450 a share." 22 conversation. It's a conversation that followed the 22 23 other documents we looked at in that exact time frame. 23 A. Yes. 24 Q. I think I've read it correctly. 18 19 A. Q. 20 21 I would not agree with you on that. You're making an assumption that he said it. I'm asking you a question. I'm not And I'm asking you, isn't it a fact 24 Do you see that? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 982 1 that the reason you wrote what you wrote was because 1 2 that was what Mr. Popeo told you? Page 984 Now, do you remember having a call 2 with Mr. Popeo on April 13 where, in fact, you were 3 A. No. I'm not agreeing with that. 3 upset and told him that you wanted Ropes to send out a 4 Q. Okay. Do you have any other 4 letter that expressed Ropes' position that all 5 explanation that you can think of, as you sit there, 5 unitholders would have to get 450? 6 for why you wrote that down on the same day, the same 6 A. 7 calls, that the others' notes reflect that same 7 something else. 8 sentence? And if the answer is no, I'll move on. 8 Q. 9 A. No, I'm thinking about it. Looks to I don't recall that. I recall Okay. Let's move on to 2654. And while we're getting there and His 9 10 me like we were talking about that Crestview was going 10 Honor is pulling the binder, Mr. Koch, do you remember 11 outside the process of what Goldman Sachs was supposed 11 there was a board meeting on April 18th? 12 to do. 12 13 14 15 16 17 Q. You think that's what you were 13 referring to would not win the argument? A. 14 Well, it says how they're going out of 16 process by talking to ArcLight. And -Q. 15 Do you see the statement that says A. I'll take your word for it. I Q. And you remember there was a board don't -meeting -A. 17 I don't remember that date. Excuse me. 26654? 18 Q. 2654. 19 A. Yes. 19 A. 26 -- I found it. 20 Q. Do you understand that means that what 20 Q. You'll see that the cover page is 18 "document meant to be compensatory"? 21 Mr. Popeo was telling you was, look, to the extent 21 reflecting notes that had been prepared by Crestview 22 that there are these two small holders who would need 22 and commented on by Mr. Coumantaros and Goldman Sachs, 23 about $27 million to get past the 1.5x return clause, 23 reflecting what had occurred at an April 18th board 24 that he read the document as allowing for it, because 24 meeting. Do you see that from the front cover page? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (50) Pages 981 - 984 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 A. Page 985 Interesting enough, I wasn't on this W. I. Koch - Cross 2 board meeting. And I don't think it was a board 2 3 meeting. I think it was just an update meeting. 3 4 5 6 8 That's correct. Q. Now, you were advised that Mr. Popeo Well -- 4 had told the board members and the others in A. Because there are not enough board 5 attendance that he viewed the Ropes & Gray position as 6 extreme. Correct, sir? Q. Do you see that you're copied on the 7 e-mail? 9 A. Q. members to have a quorum. 7 Page 987 Do you see that? 1 A. No. He is just -- he's just saying 8 it's extreme -- it's to the extreme other side of 9 Crestview. So one's on one side of the room; one's on 10 where the Oxbow board meeting minutes are, it's all 10 the other side of the room. That doesn't say it's 11 attendance by phone, and there are not enough 11 totally extreme by itself. 12 directors for a quorum. There's only one, two, three 12 13 directors by a quorum. So that's not a board meeting. 13 the next paragraph, "Bob Hurst asked whether Cravath 14 should weigh in on the 1.5x issue. Bob Popeo said A. Q. 14 15 Yes. But if you go to page 1207, Okay. It does indicate that all of your board designees were present. Q. You see, then, it goes on to say in 15 that he was not sure that Cravath had been engaged 16 A. It does? Where? 16 yet, but he would be delighted if Cravath advised on 17 Q. It indicates that your lawyers, 17 the 1.5x issue." 18 Mr. Popeo and Mr. Leone-Quick, were present. 19 20 A. 18 They were not my board designees. They were just lawyers. Do you see that, sir? 19 A. Yes, I do. 20 Q. We're going to talk about in a moment 21 Q. I said "your lawyers." 21 what it is that Mr. Townsend from Cravath advised, but 22 A. No, you said "board designees." 22 I want to go back a few pages. 23 Q. I misspoke if I did. I apologize. 23 You agree your lawyers, Mr. Popeo and 24 24 You were here yesterday when Mr. Volpert or Mr. Hurst, I don't remember who it was, CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Page 986 Mr. Leone-Quick, were present? 1 testified that Goldman had described the exit sale Page 988 2 A. Yes. 2 process as the most constrained process that they had 3 Q. And that there were other attendees. 3 worked on at least in 30 years, in the case of Now, I want to go to the page that is 4 Mr. Carr, and ever in the case of Ms. Cohen. Do you 5 remember that testimony? 4 5 1211. 6 A. Yes. 6 A. Yes, I do. 7 Q. And you'll see down about two-thirds 7 Q. And you were made aware by Mr. Popeo 8 of the way, it says, "Bob Popeo then said ... no 8 and Mr. Leone-Quick that Goldman had given that 9 decision will be made on accelerating the vesting of 9 perspective in that meeting. Correct, sir? 10 the LTIPs until a compensation consultant has been 10 A. In this meeting or another meeting? 11 engaged by the comp committee. Regarding the 1.5x 11 Q. Well, in any meeting, were you advised 12 issue, Bob Popeo said that Ropes and Gray has [taken] 12 by your lawyers that Goldman had said they viewed the 13 the position to the extreme other side of Crestview." 13 exit sale process that they were encountering as the most constrained that they had ever experienced? Do you see that? 14 15 A. Yes. 15 A. 16 Q. And at this point he was trying to 16 Q. Yes? A. I remember hearing that. I can't 14 17 manage between the conflicting positions. Do you see 17 18 that? 18 Mm-hmm. remember when and from whom. Q. Did you also hear that what Goldman 19 A. Yes, that's true. 19 20 Q. So "Ropes' position is that the 1.5x 20 was referring to when it gave that opinion was 21 unit holders cannot be made whole and that all unit 21 Goldman's frustration over the way in which you, Bill 22 holders must receive the same consideration, so they 22 Koch, were withholding or constricting the flow of 23 can block a sale. He said ... this is a 'show 23 information to Goldman? 24 stopper.'" 24 A. CHA NCE RY COU RT REP ORT ERS I do not believe that. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (51) Pages 985 - 988 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Q. 1 W. I. Koch - Cross Page 989 Well, whether you believe it or not, 1 Page 991 because the private equity guys and other guys wanted 2 did you understand when you were told about Goldman's 2 to get back channels and go in and get the 3 view that what Goldman was referring to as the most 3 information. 4 constraining process was the experience it was having 4 5 in getting information from you? 5 sure that the information that was going out was 6 7 8 And so -- and also, I wanted to make A. No, I do not recall that. 6 correct and was not tainted by other people's personal Q. Well, let me ask you -- pardon me one 7 agendas. So ... 8 second. Do you remember, in fact, that 9 Q. Just so we're clear, at the point in 9 time where the board itself authorizes Goldman to 10 following a board meeting at which the board 10 prepare a sim, to get information from the company, 11 authorized Goldman to continue with the exit sale 11 and to go to market, just so we're clear, you 12 process and to go out to market with company 12 instructed your management team that they were not to 13 information, you attempted to countermand that board 13 provide any information if Goldman asked for it. Can 14 instruction? 14 we agree on that? 15 A. No. I don't believe that. 15 16 Q. Do you remember what you told 16 A. I don't believe that but I may have, because -- 17 Goldman -- well, first of all, let me ask you this. 17 Q. 18 Do you remember -- we're going to look at the 18 Mr. Koch? 19 document. Do you remember that the board authorized 19 A. 20 Goldman to go out to the market with information? 20 Q. What's your best belief on that? 21 A. Well, I know that Goldman came down 21 A. I remember Goldman saying that they What's your best belief on that, What? 22 had -- we had to prepare a sim to go out to the 22 and worked side by side with a lot of our guys. So 23 market. 23 I -- that's why I say that I can't say that -- and 24 my -- and our guys were giving them information. Our 24 Q. And do you remember the board CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Page 990 authorizing Goldman to do so? 1 2 A. Yes. I can remember that. 2 3 Q. Do you remember after that board 3 Page 992 guys were preparing the sim. Q. Let me see if I can help refresh your recollection. 4 authorization, you sent Mr. Carr from Goldman an 4 A. Yes. 5 e-mail telling him that you expected all information 5 Q. Do you remember that you directed your 6 flow from the company had to go through you? 6 lieutenants that not only were they not to provide any 7 A. I remember that, yes. 7 information to anyone, including Goldman, but you 8 Q. And in fact, what you told Mr. Carr 8 insisted that they send you a memo confirming that, in fact, they would follow your instruction? 9 was that you had actually gone and instructed all of 9 10 your executive team that under no circumstances were 10 11 they to share any information with Goldman. It all 11 saying that I did not want them to talk to outside 12 had to go through you. 12 investors or outside people without talking to me 13 first or referring them to me. Because we had a lot 13 A. I don't believe that, but if there is A. I remember sending a memo to the guys 14 a memo on that, I'll be happy to look at it and 14 of problems with people, such as Eric and Christina, 15 confirm. 15 giving confidential information outside the company. 16 And I don't remember whether I did that to Goldman or 17 not. 16 17 Q. Let's ask you what your recollection is. We're going to look at those documents. 18 A. I'm telling you -- 18 19 Q. Did -- 19 easily overcome because Goldman was spending a lot of 20 A. I'm trying to tell you something and 20 time down with our company working on such things as 21 the sim. 21 you interrupted me. 22 Q. You're right. 22 23 A. I remember Goldman telling me that we 23 24 had to guard the information going out very carefully 24 In fact, as I said, if I did, it was Q. After the break we're going to look at some of those documents, Mr. Koch. A. CHA NCE RY COU RT REP ORT ERS Good. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (52) Pages 989 - 992 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 Q. 2 3 Do you have -- 1 Let me put the question first to 2 Mr. Koch. 4 W. I. Koch - Cross Page 993 3 Do you remember there came a point in Page 995 good place. This is not a good place to stop. MR. CARLINSKY: I was excited about the break. 4 THE COURT: No, no, that's my fault. 5 time where Mr. Townsend from Cravath was asked in a 5 BY MR. CARLINSKY: 6 board meeting to give his opinion on whether or not he 6 7 agreed with the Ropes position that an exit sale 7 8 couldn't go forward or whether an exit sale could in 8 A. Yes. 9 fact go forward with either leave-behinds or a 9 Q. Mr. Clark, these are his -- he 10 top-off? 10 prepared these minutes of the meeting that took place on April 18th. Do you see that, sir? Q. Let me ask you to turn to 2658 in your binder. Do you have that in front of you, sir? 11 A. Yes. 11 12 Q. And before we play Mr. Clark's 12 A. Yes, I do. Q. Now, when you fired Mr. McAuliffe in 13 testimony on this point, you, Mr. Koch, when 13 14 Mr. Townsend came into that meeting and was asked to 14 15 give his opinion, you tried to stop him, didn't you? February, you made Mr. Clark the general counsel? 15 A. Yes, I did. 16 A. Yes, I did. 16 Q. He is somebody that you have trust in, 17 Q. Your position was you didn't want him 17 obviously? 18 A. 19 Q. He's somebody whose opinion you value? 18 giving any view on that particular issue. Correct? 19 A. No. My opinion was that he was hired Yes. 20 as a transactional lawyer, and the 1.5x issue or any 20 A. Depends upon what subject matter. 21 other of those was a stockholder matter and not a 21 Q. Well, fair enough. On corporate 22 transaction matter. 22 23 Q. Well, let's be clear on this. 23 24 A. And I said that to him bluntly when I 24 matters? A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. W. I. Koch - Cross Page 994 1 told him not to provide it, an opinion. 2 Depends upon what corporate matters. If it's a legal matter, I would. If it's whether we Let's see if we can agree on a few 2 Page 996 price a product, something else, that's different. Q. Mr. Clark, you testified yesterday, 3 things. What you said was you didn't want 3 was actually working with you in 2007 on the LLC 4 Mr. Townsend to give an opinion because you thought 4 agreement. Right? 5 those issues were already being advised on by Ropes 5 A. Yes, he was. 6 and Mintz. Correct, sir? 6 Q. And, in fact, he was the scrivener who 7 A. I don't think I said that. I think 7 was taking some of your ideas and comments and sending 8 unless someone has recorded the meeting, which it 8 them on to the outside lawyers for incorporation into 9 looks like some people have, I said to him, That's not 9 the LLC agreement. Correct? 10 your job. 10 A. Yes, that's right. 11 Q. 11 Q. And despite having been on the scene 12 13 14 15 What's not your job, to give an opinion? A. No. His job was to handle any transaction. Q. Do you see that Mr. Popeo in the 12 in 2007 and promoting him to general counsel, as you 13 told me in your deposition, you never asked him his 14 opinion on these issues. Correct? 15 A. On what? Q. On the 1.5 blocking right or whether 16 April 18th meeting said, I'd welcome the opportunity 16 17 to get Mr. Townsend's opinion? 17 18 A. 19 you referring to? 20 I didn't see that. Which meeting are THE COURT: I think this is a good an exit sale could go forward. 18 A. No, I didn't. 19 Q. Even though he sits in the same 20 office, on the same floor as you, you didn't want his opinion either. 21 place to stop for our afternoon break, and we will -- 21 22 am I 15 minutes early? 22 23 THE CLERK: No, you're good. 23 24 THE COURT: I'm sorry. This is not a 24 A. I think you're wrong. He does not sit in the same office on the same floor. Q. CHA NCE RY COU RT REP ORT ERS Fair point. I don't know actually CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (53) Pages 993 - 996 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 where you two sit. 2 W. I. Koch - Cross Page 997 1 he sent in a letter claiming that it was retaliatory. Do you remember that? Page 999 A. That was a very dramatic thing to say. 2 3 Q. What I like about you, Mr. Koch, is 3 A. Yes. 4 you're very precise. 4 Q. And you understand that Mr. McAuliffe 5 So Mr. Clark is not someone -- let me 5 testified in his deposition that he was fired because 6 ask you this: In the time before Mr. McAuliffe was 6 he was investigating improprieties by you and he had 7 terminated as the general counsel, you also never 7 gone and gotten independent legal opinions from some 8 asked him his opinion on the issue. Correct? 8 outside lawyers that you were unhappy with. 9 10 A. No, because he was working for Mr. McAuliffe, and -- 11 Q. A. No. He was attempting to create an 10 impropriety from me but he hadn't read his -- the 11 employee handbook that he claimed that he had written 12 just so we're clear. We've left Mr. Clark. You've 12 which said I had every right to do what I was doing, 13 told us about him. 13 which was looking at e-mails and looking at -- not I'm sorry. 14 looking at e-mails but getting lists of e-mails to and Now I'm asking about Mr. McAuliffe. 15 from people and lists of phone calls to and from During the time period that 16 people. And that was entirely within our -- legally 17 and it was entirely within the company policy. And he was looking at that. 14 A. 15 Q. No, I asked you about Mr. McAuliffe, 9 16 17 Mr. McAuliffe was your general counsel -- 18 A. Yes. 18 19 Q. -- before he was terminated -- 19 The other thing is he wanted for his 20 A. Yes. 20 own self, and I could understand that, he wanted to 21 Q. -- you never asked him his opinion on 21 run for Congress, and he was hoping that the put came 22 about, then he would get that money and have enough 23 money to run for Congress on himself. 22 the 1.5x blocking right issue. Correct? 23 24 A. I'm trying to think if I did or not. Q. 24 I wouldn't call it the 1.5 blocking right. I would CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 3 Q. W. I. Koch - Cross Page 998 call it the 1.5 requirement. 2 All I asked, Mr. Koch, is have you You don't have any recollection of asking him to give you his opinion on whether -- Page 1000 1 read his deposition? 2 A. 3 Q. Have you read his deposition? Have I what? 4 A. I doubt if I did. 4 A. No, I haven't read his deposition. 5 Q. -- the exit sale could go forward? 5 Q. His Honor has his deposition in 6 A. I doubt if I did ask him because -- 6 7 Q. Now -- 7 A. Okay. 8 A. -- he was personally adversarial to 8 Q. Mr. Townsend is in the meeting. You 9 me. evidence. I want to get back to where we were. 9 see that in JX 2658, Mr. Clark's minutes, at page 205426 -- 10 Q. Since when? 10 11 A. Oh, since his daughter got into 11 A. Yes. 12 Q. -- indicate, at the very bottom of 12 trouble at Oxbridge. 13 14 15 22 23 24 that page, it says, "Mr. Hurst recommended that A. Yes. And the adversary stayed a long 14 Mr. Townsend consider this issue, and Mr. Popeo 15 indicated that he thought that recommendation made 16 sense." And then you waited until February 1, 2016, to fire him? A. Do you see that? 17 No. It didn't -- that had nothing to 18 19 do with the 2016 firing. 20 21 13 Q. 18 19 That was in early 2015, wasn't it? time, unfortunately. 16 17 Q. A. I'm sorry. I was trying to find it without your highlights. Thanks for your highlights. Q. Well, you did fire him. We can agree A. Oh, yes, I did, for good reason. 22 subsequent board meeting and he was prepared to give Q. And you're aware that Mr. McAuliffe 23 his opinion and you tried to stop him from speaking, 24 were you not aware that Mr. Popeo had invited his on that. 20 21 testified -- well, first of all, when you fired him, That's accurate. Q. CHA NCE RY COU RT REP ORT ERS So when Mr. Townsend came to a CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (54) Pages 997 - 1000 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 opinion? 2 W. I. Koch - Cross Page 1001 Page 1003 1 amount required to lift late-joining members over the 2 hurdle, correct? A. I don't remember this, but that's what 4 Q. Can we -- 4 5 A. I could have asked Mr. Townsend not to 5 did not agree that the LLC Agreement prohibited a make whole or top-off payment, correct? 3 3 it says. 6 give his opinion at another meeting. I just don't 6 7 remember. But I do remember telling him that wasn't 7 8 his job. 8 9 Q. Can we see, please, Mr. Clark's 10 testimony on this? "Question: And you did not say to was barred by the LLC Agreement, correct? 11 "MR. ELSBERG: That's correct, Exhibit 12 13 24, which is Mr. Clark's typewritten notes of the 13 14 April 18, 2016 meeting. 14 "Question: Do you have that in front "Answer: Correct. 10 (Video clip played as follows: 15 of you, Mr. Clark? Okay. And Mr. Townsend Mr. Townsend that you believed that a top-off payment 12 16 "Question: 9 11 15 "Answer: Correct. "Answer: Correct. "Question: Because that's not what you believed, correct? "Answer: No, because I wasn't asked for my opinion. "Question: 16 Okay. So in the "Answer: I do. 17 conversation with Mr. Townsend, when the topic of the 18 "Question: Now, in the last 18 1.5 times provision was being discussed, including 19 paragraph, you wrote: 'Mr. Carr stated that it was 19 whether or not everyone had to receive the same 20 important to come to a unified position regarding 20 consideration, you never said to him, 'Look, my view 21 whether the LLC agreement provision stating that each 21 is that everyone does have to get the same 22 member must receive proceeds at least equal to 1.5 22 consideration'? 23 times its capital contribution required all members to 23 "Answer: I did not say that to him. 24 receive the same higher amount required to lift 24 "Question: 17 CHA NCE RY COU RT REP ORT ERS Okay. And you were CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1002 Page 1004 1 late-joining members over that hurdle or only that the 1 2 members which would not otherwise achieve the hurdle 2 3 must receive a higher amount. Discussion ensued. 3 4 Mr. Hurst recommended that Mr. Townsend consider this 4 'Listen, this is what Bill Koch believes it requires. 5 issue and Mr. Popeo indicated that he thought that 5 Bill Koch believes everyone has to get the same 6 recommendation made sense.' 6 amount'? 7 "You wrote that, right? 7 8 "Answer: I did." 8 Yeah. I think -- 9 discussing what the 1.5 times provision meant, right? "Answer: Yes. "Question: And you didn't say to him, "Answer: I do not believe I said Bill Koch. I might have mentioned Ropes & Gray's position. "Question: Ropes & Gray's position, 9 A. 10 Q. Hold on a second. 10 11 A. Okay. 11 12 (Video clip resumed) 12 the extreme position that a make whole was not 13 "Question: It is correct, sir, is it 13 permitted, right? exactly. "Okay, and Ropes & Gray's position was 14 not, that Mr. Townsend did end up giving you advice 14 "Answer: That was -- yes, that was 15 with respect to the matters that are referenced in the 15 their position, their make whole was not permitted. 16 last paragraph of your typewritten notes, which are 16 17 Exhibit 24? 17 18 "Answer: Yes. 18 19 "Question: 19 20 Okay. No question about that, right? "Question: "Answer: Not a position that I ever articulated either way. "Question: 20 21 "Answer: No. 21 22 "Question: 22 Okay. And Mr. Townsend's 23 advice that he gave to you was that the LLC Agreement 23 24 did not require all members to receive the same higher 24 Right. Not a position that you shared, correct? Right." (End of video clip.) BY MR. CARLINSKY: Q. Now, that's consistent with what Mr. Townsend's advice was at the board meeting. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (55) Pages 1001 - 1004 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 Correct? 2 3 A. Yes, it was. He did give his advice Q. 1 Page 1007 his opinion, and his job was very clearly defined as 2 far as I was concerned. 3 over my objection. 4 W. I. Koch - Cross Page 1005 And, in fact, because he gave that "Question: And the reason you didn't 4 want him to be paid was because you had asked him not to give an opinion? 5 advice over your objection, you instructed Mr. Clark 5 6 to fire him or to not pay his bills immediately after 6 7 that meeting. Correct, sir? 7 him an instruction at this board meeting not to give 8 his opinion because his job was to work on the 8 A. No, that's not right. I told him not "Answer: I had told him, I had given 9 to have him come to the meeting anymore because that 9 transaction. His job was not to give advice to the 10 was out of his bailiwick. 10 unit holders, and that's what I said and that was true. 11 Q. True or false, Mr. Koch. 11 12 A. I don't -- 12 13 Q. Did you tell Mr. Clark not to -- 13 you were telling Mr. Clark not to pay Mr. Townsend and MR. HENNES: Objection, Your Honor. 14 Cravath for the work? 14 Q. "Question: Did you tell Mr. Clark why -- pay Cravath's legal bills? 15 16 (overlapping speakers) 16 17 MR. HENNES: -- let him finish. 17 18 THE COURT: Look -- 18 A. Yes. 19 THE WITNESS: I was about ready to 19 Q. And you saw from the minutes that we 15 20 finish. 21 "Answer: Yes. Yes, because I said he had violated his instructions." That was the testimony you gave? 20 prepared, it was Mr. Popeo, your lawyer, who had THE COURT: Let's stop for a second. 21 suggested it was a good idea to solicit Mr. Townsend's Is there anything else? You were in 22 legal advice on this important issue. Did you see 23 mid-sentence. Is there anything also you wanted to 23 that, sir? 24 add? 24 22 Yeah, I saw that. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1006 THE WITNESS: I was going to say that 1 A. 1 Q. Page 1008 And when you learned that and you 2 Mr. Townsend was hired to be a transaction lawyer, and 2 learned that Mr. Townsend had done what you had asked 3 here he was butting into some other business that we 3 him not to do, did you have any follow-on 4 already had lawyers that we're paying for. I didn't 4 conversations with Mr. Popeo to say to him, Why did we 5 want to pay him for getting that advice, so I said, 5 have this guy come in and give an opinion that's 6 Why are we having him around? 6 creating issues for us? 7 8 MR. CARLINSKY: Should I proceed, Your Honor? THE COURT: Absolutely. 9 BY MR. CARLINSKY: 11 Q. 12 testimony. 13 A. 14 Q. 15 11 Yeah. to move to another subject. MR. CARLINSKY: Thank you. 13 THE COURT: We'll come back in 15 At 909, line 23. Well, 909, line 23. 14 15 meaning reference to Mr. Townsend -- "was that he did 16 17 not believe there was an ability to block an exit 17 18 sale. Correct? 18 "Answer: Well, he stated a short THE COURT: Now would be a good time to take a break. 12 "Question: And his opinion" -- Oh, yes, I did. MR. CARLINSKY: Your Honor, I'm about 10 Let me read you your deposition 16 19 A. 8 9 10 7 minutes. (A brief recess was taken.) 19 20 opinion about that and then I called up, I called up 20 21 Dave Clark and said don't pay him because he's 21 22 extend -- he's gone, he has exceeded his authority, 22 23 he's exceeded his responsibilities in making his 23 24 opinion. I didn't want his opinion, I never asked for 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (56) Pages 1005 - 1008 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 1009 1 (Resumed at 3:16 p.m.) 1 attention, please, because just, again, in the 2 MR. CARLINSKY: Your Honor, before we 2 interests of time -- I'm not trying to trick you. Page 1011 3 begin, I just want to say, Donna deserves a shout-out, 3 Just in the interests of time, do you see that your 4 because there's now a fan that she's put on the floor 4 notes reflect a call with Mr. Popeo on May 6? Can you 5 in front of us to get a little air circulating. So I 5 confirm that for us? Or a meeting. I don't know if 6 very much appreciate it. 6 it's a meeting or a call. THE COURT: We all are very proud of 7 8 the Register in Chancery folks, and I'm glad you-all 9 are getting on the bandwagon. 7 A. Looks like it was a call to me from 8 Bob Popeo. I mean, it looks like Bob Popeo and I had 9 a call about Bob Hurst. 10 MR. CARLINSKY: We really are. 10 11 May I continue, Your Honor? 11 which is at 582, I want to ask you about some of the 12 THE COURT: Please. 12 entries you wrote down in your call with Mr. Popeo. 13 MR. CARLINSKY: Thank you. 13 And I'm asking you to go down a few lines. And it 14 says, "Bill said they can talk to EJ -- all it is set 15 up to kill the deal." 14 BY MR. CARLINSKY: Q. 15 Mr. Koch, can I direct your attention, Q. And then if you turn to the next page, 16 please -- I don't know if you have them still in front 16 17 of you. It's 3199. These are your handwritten notes. 17 18 Let me know when you're at the page that ends with 18 19 366581. It's notes of a call with Mr. Popeo on May 6, 19 Mr. Popeo, two lines down, it says, "If BK" -- that's 20 2016. 20 Bill Koch; right? 21 Are you there? 21 22 A. No. What's the date? 22 23 Q. May 6, 5/6. And the Bates No. is 23 24 366581. It's right up on the screen as well, but I Do you see that? A. Yeah. I do. Q. And then, in your conversation with A. Yes. Q. "If BK wants to kill deal fire EJ and file lawsuit." Do you see that, sir? 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Page 1010 want you to have them in front of you, please. 1 2 A. I have them. 2 3 Q. Okay. Let's just make sure we set the 3 Page 1012 A. Yes. Q. You'd agree with me, you fired Mr. Johnson? 4 table. May 6, what was happening at that point in 4 A. Excuse me? 5 time was there were meetings being scheduled with 5 Q. You fired Mr. Johnson, didn't you, on 6 ArcLight; correct? 6 7 8 A. I have to just sort of review this to make sure your statement is correct. Q. 9 Okay. But do you have a recollection June 10? 7 A. Yes, I did. 8 Q. And you filed the lawsuit on June 10; 9 correct? 10 that on May 6, that was the time period -- you had met 10 A. That's true. I did. 11 with ArcLight with Mr. Johnson and others, and then 11 Q. And ArcLight did exactly as Mr. Popeo 12 ArcLight had requested a follow-on meeting without you 12 and you discussed. ArcLight said, "We're out. You 13 in attendance. 13 guys can go litigate this thing. We don't want to be a part of it." Do you remember that generally, sir? 14 15 A. May I read this first? Please? 15 16 Q. Well, I'd actually, on my time -- I'm 16 14 Isn't that true, sir? A. Depends upon what time, because 17 just asking you without regard to the notes. If you 17 they -- at one time they called me up and asked if I 18 don't recall, you can just tell me. 18 would stay in the deal with them and roll it over. 19 The only time I remember that they said that they were 19 A. I'm sorry, but to answer your question 20 accurately, I've got to have a -- some time to review 20 going to get out and not have a thing to do with it is 21 this. 21 because -- I think when we subpoenaed them, and they 22 said -- Kevin Crosby said, "I'm going to have to get a 23 lawyer, damn you. I don't want to be involved in 24 this." 22 23 24 Q. Well, I'm going to withdraw the question, then, Mr. Koch. I'm just going to direct your CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (57) Pages 1009 - 1012 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 Q. Page 1013 So Mr. Popeo and you discussed that if W. I. Koch - Cross 1 Page 1015 that. But as I said, he also called me up and asked 2 you want to kill the deal, you fire Eric Johnson and 2 me if I would rollover and stay as a -- a minority 3 you file a lawsuit. And you did both of those things 3 partner with them. So -- 4 on the very same day, June 10. In fact, you told us 4 5 earlier how you texted to your lawyers in the board 5 with Mr. Popeo on May 6 about killing the ArcLight 6 meeting to go and file the suit. 6 deal, do you remember that what was coming up was -- 7 well, let me go back a little bit. 7 But it's true, isn't it, sir, what you Q. Now, when you had this conversation 8 did on June 10 was both of those things, fired Eric 8 9 Johnson and filed this lawsuit? 9 meeting with ArcLight where Mr. Johnson and various 10 managers were in attendance, and you, as well, were in 11 attendance, Mr. Koch? Remember that? 10 A. 11 supposition here. Well, you're trying to make a First, you do remember there was a 12 Q. I'm just asking a question, Mr. Koch. 12 A. Sure. 13 A. No, but I'm going to -- 13 Q. And you remember that you had heard 14 Q. Am I -- 14 ArcLight did not want you, Bill Koch, to be in A. I'm sorry. It says here, "MC said 15 attendance at that meeting? 15 16 sure would." MC is Michael Carr. And I think at this 16 17 point in time, there had been no decision made to kill 17 it, but I had heard it, and I don't think I gave much 18 the deal or fire Mike -- Michael Johnson -- I mean 18 credulence -- cred -- I can't pronounce the word. 19 Eric Johnson. 19 Much validity to whoever said that to me. Q. 20 Well, you would agree with me, by June 20 A. Q. 21 10, you had made the decision to kill the deal, 21 22 because you fired Mr. Johnson that day and you 22 A. 23 instructed your lawyers to file the lawsuit; correct? 23 Q. 24 A. No. That didn't kill the deal. I I had -- I've forgotten where I heard And obviously you didn't, because you went to the meeting regardless. Of course I did. It's -And then you went after that -THE COURT: Hold on. You're talking 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross 1 Page 1014 told you what killed the deal. What killed the deal 1 2 was -- again, I'll repeat it for you so you understand 2 3 it -- what killed the deal was that we were 3 this company. I'm working on raising the money, and 4 subpoenaing ArcLight. And they got mad and said, "I'm 4 so I have a right to be there. 5 going to stay away from this." 5 Page 1016 over each other. A. Q. Yeah, no, I said, you know, I'm CEO of And on this topic, Mr. Koch, do you But I have conversations with -- 6 remember that following the initial ArcLight meeting 7 Q. Don't you remember there was a -- 7 at which you attended, ArcLight then went back to 8 A. I -- excuse me. I had conversations 8 Goldman and said, "We'd really like to have a meeting 6 9 with Kevin Crosby which I took -- I had someone 9 without Bill Koch there. We'd like to be with just 10 listening in on it and took specific notes on it. 10 the managers, because we felt like nobody was able to 11 get a word in at the first meeting"? 11 Q. And I was going to ask you about that. 12 That was a few days after the lawsuit was filed, 12 13 right, Mr. Koch? 13 14 15 A. I don't remember. I have to look at them. Q. 16 And you remember Mr. Crosby -- we'll Do you remember that, Mr. Koch? A. No, I don't. And I don't remember 14 they couldn't get the word in, because when I was at 15 the meeting, I said -- I said a very few things, and I 16 took extremely copious notes about it. So I -- I 17 look at them. We're going to have to pull them up. 17 couldn't talk while I was taking notes, you know. I 18 But -- 18 can't chew gum and walk at the same time. 19 A. Yeah, please do. 19 20 Q. -- do you remember Mr. Crosby telling 20 Q. Mr. Koch, there was a subsequent meeting with ArcLight that you knew about; right? 21 you at that moment in time that now, since there was 21 A. Yes. 22 litigation, ArcLight was going to wait to see how it 22 Q. And you knew that you had been asked 23 gets resolved? 23 24 A. He -- he probably said something like 24 not to attend that meeting; correct? A. CHA NCE RY COU RT REP ORT ERS I knew that, yes. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (58) Pages 1013 - 1016 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 1017 And prior to that meeting, you knew 1 Page 1019 that -- asking him to send that message. I told him 2 that Mr. Johnson and some of his managers were going 2 what I wanted, and he was in charge, or his groups 3 to be in attendance at that meeting; correct? 1 Q. 3 were in charge of making the forecast. And as I 4 A. Yes. 4 recall, he was doing it on his own. But -- 5 Q. And let's talk about, for a moment -- 5 Q. Mr. Parmelee -- A. But -- may I finish, please? 6 although I suspect we'll get back to this a bit 6 7 later -- what happened before we -- before that 7 8 meeting. 8 Q. You may. A. -- I know, like, you could out-talk Because -- 9 You had Mr. Parmelee contact the 9 10 very -- the managers who were going to be going into 10 11 that ArcLight meeting and who were working on 11 12 forecasts. You had Mr. Parmelee contact each of them 12 be here, I hope. You can ask him those questions on 13 and tell them that if their forecasts were too high, 13 what I did. But as I said, I told Bill, the forecasts 14 they were betting their bonuses on it; right, sir? 14 are being too optimistic, in my opinion. They were 15 me, and you're very good at doing that. But I -- you can -- Bill Parmelee will No. I did not have Bill Parmelee do 15 too optimistic the year before, they were too 16 that. But I told Bill Parmelee, and when I was down 16 optimistic now. And so let's get them right. Let's 17 there I was going to tell the guys, that the -- the 17 get them better. 18 forecasts that I saw were really puffed up. And I 18 19 said to him, "If they want to make puffed-up forecasts 19 attention." I'll say, "If you guys want to make a 20 on it, and make super-optimistic forecasts, then, 20 puffing forecast, go right ahead, but it will cost you 21 sure, they're betting their bonuses on it." 21 your bonus if you don't make it." A. 22 So I wanted them to be absolutely 22 23 realistic and have them -- have them give accurate 23 24 forecasts the best they could, and on the best basis. 24 And I said, "I'll get these guys' Q. Mr. McIntosh is one of the managers -A. Yes. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross 1 Page 1018 And I told them not to be too pessimistic and not to 1 Q. -- who reported to Mr. Johnson; right? 2 be too optimistic. And I was instructed to do that 2 A. Yes. 3 from Bob Popeo, who said, under security laws, you've 3 Q. He was one of the individuals who was 4 got to do that. You can't make it. 4 5 Now, these guys had a tendency, 5 6 particularly Eric Johnson had a tendency, to make 6 7 forecasts that were -- and around this time, were 7 8 extremely high and, I think, somewhat dishonest. 8 9 10 Q. Mr. Koch -- 9 A. And I can prove that, by showing you Page 1020 meeting with ArcLight; correct? A. Yes. Q. Let's watch Mr. -- flip to Mr. McIntosh's video testimony, please. (A video clip was played as follows: "Answer: I inferred that 10 Mr. Parmelee, as he cites, don't shoot the messenger, 11 the reality of what happened versus the forecasts in 11 meant that the message -- he wasn't -- the origin of 12 the first three months or first -- four months or -- 12 the message was not Mr. Parmelee. 13 or five months, that Eric Johnson was still -- was 13 14 still there as president, we were way below the 14 15 forecast. Way below. 15 "Question: I think that's clear. He says the origin of the message was Bill Koch, right? "Answer: Correct. 16 Q. Mr. Koch, very simple questions. 16 17 A. And so -- yeah. 17 ever told you anything other than you're betting your Q. Let me see if I can ask just a couple 18 bonus on your forecasting numbers, right? 18 19 20 21 of them to make it clear. "Question: And my point is, no one 19 "Answer: At this particular point A. Sure. 20 there was a reforecast being done. This was the Q. You had Bill Parmelee send this 21 guidance I was given. 22 message right before those executives were going to be 22 23 meeting with ArcLight; correct? 23 to the reforecast, no one ever told you anything other 24 than you're betting your bonus on your forecast 24 A. I -- I do not -- no. I do not recall "Question: And in 2016, with respect CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (59) Pages 1017 - 1020 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 numbers, right? 3 reforecast. "Question: Right. For this 4 5 reforecast. Correct? 6 7 Page 1023 And you've seen notes where Mr. Popeo Q. 1 "Answer: For this particular 2 W. I. Koch - Cross Page 1021 2 discusses the fact that he's going to call 3 Mr. Johnson, discuss the ArcLight meeting that was 4 scheduled for the next day and Mr. Johnson's personal 5 issues? "Answer: Correct. 6 "Question: And with respect to prior A. I don't remember those. I will tell 7 you that historically, we were 25 percent over -- over 8 reforecasts and subsequent reforecasts and prior 8 our -- actual 25 percent over our -- our budgets up 9 forecasts and subsequent forecasts and in fact every 9 until about 2010 or '11. 10 other forecast you've ever done or heard of being done 10 11 at the company, nobody ever said to you or anyone 11 Crestview was putting a lot of pressure on us to puff 12 else: You're betting your bonus on the numbers. 12 the forecasts up, we came, on average, about 20 13 Right? 13 percent below forecast. And this year, we were 14 something like -- the year 2016, of which Eric did the 15 forecast, we were 37 percent, on average, below -- the 16 actual was below the forecast. "Answer: I can only speak for myself. 14 15 I did not receive this type of direction previously. "Question: And you never heard of 16 17 anyone receiving that kind of direction previously 17 18 either, did you? 18 And then, all of a sudden, when So it was a puffed-up forecast, period. 19 "Answer: I hadn't heard that, no. 19 Q. Mr. Koch -- 20 "Question: You were pretty shocked 20 A. And I was tired of getting puffed-up 21 when you got this direction, weren't you? 21 forecasts. Q. And it just so happened that the first 22 "Answer: I was concerned. 22 23 "Question: This is not how things are 23 time, as Mr. McIntosh says, it was ever raised where 24 anybody's bonuses were ever threatened were in the 24 normally done in the forecasting process, is it? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 W. I. Koch - Cross Page 1022 Page 1024 "Answer: It wasn't standard. 1 days leading up the second meeting with ArcLight. 2 "Question: When you say it wasn't 2 Just coincidence? 3 standard, you mean it had literally never happened any 3 4 other time that you're aware of. Right? 4 5 A. No. It had nothing to do with that. It had entirely to do with the forecast. I mean -- "Answer: Not that I'm aware of." 5 (End of video clip.) 6 I want to go back in time. We've spent a lot of time 7 so far in 2016. I want to go back to the summer of Mr. Koch, did you at some point ask 8 2015 with you, at a point in time well before we've 9 Mr. Popeo to contact Eric Johnson, before he went into 9 seen the fun new theory being discussed and a bunch of 10 the second meeting with ArcLight, to discuss with him 10 other things. 11 about tamping down the numbers? 11 6 7 8 BY MR. CARLINSKY: Q. 12 A. No. I did not. 12 13 Q. Let me make the question more broadly. 13 Q. Okay. Let me switch topics, Mr. Koch. And let's start, if we can, with JX 1160. A. Is that in Book No. 1 or 2? Q. I think it will be in Book No. 1. Let 14 Did you ask Mr. Popeo to reach out to Mr. Johnson to 14 15 speak with him the night before he went into the 15 me know when you have that in front of you. Tell me 16 meeting with ArcLight? 16 when you're there, please, sir. 17 18 19 20 21 22 23 24 A. I don't believe so. 17 A. Q. Are you aware that Mr. Popeo did, in 18 Q. Yes, sir. 19 A. I have it in front of me now. Thank Q. This is an e-mail from you to fact, call Mr. Johnson? A. Oh, I've seen some notes on that 21 effect, yes. Q. Seen some notes from Mr. Popeo on that effect; correct? A. 20 Yes. 22 Excuse me. Is it JX 1160? you. Mr. Popeo, July 5, 2015. Do you see that? 23 A. Yes, I do. 24 Q. And this was about -- a few weeks CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (60) Pages 1021 - 1024 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 1025 1 after you had retained Mintz Levin and Mr. Popeo; 1 Page 1027 Oxbow -- "can delay the payment of the Put in order to 2 correct, sir? 2 have negotiating leverage." 3 4 A. Not a few weeks. Probably about a month after -- 3 You didn't think anything of it, whether that was appropriate to ask outside counsel that, by your testimony, was company counsel? 5 Q. And at this point -- 5 6 A. -- or more. 6 Q. -- Mr. Popeo represented both you, 7 Q. 4 A. It was company counsel. He was 7 company counsel. And I think it was absolutely 8 OCMH. He also represented Oxbow, and he also 8 appropriate -- appropriate, because we didn't have a 9 represented you and your wife pursuant to a separate 9 lot of legally available funds. And additionally, we 10 engagement; correct, sir? 10 were thinking of ThoughtWorks as a -- as a -- a strategy of dealing with the put. 11 A. That's not accurate. 11 12 Q. Okay. Let's dissect that, but we can 12 Q. Well, this idea that you raise for the 13 fight about that one later on. Let's focus on your 13 first time on July 5 evolved into becoming the 14 e-mail for right now, so we don't get too distracted. 14 ThoughtWorks strategy; correct, sir? You write to Mr. Popeo -- your 15 15 A. No. 16 words -- and you say, "There are closing and payment 16 Q. You had never heard of ThoughtWorks 17 terms if Oxbow accepts Crestview's put and it price in 17 18 the Third Amended and Restated Limited Liability 18 A. 19 Company Agreement of Oxbow Carbon ... in Section 8." 19 Q. From whom? 20 A. I heard it from Ropes & Gray before I 20 And you have some further discussions. 21 You then focus on this line, "payable by wire transfer 21 22 of immediately available funds." 22 23 24 A. Do you see that? 23 Yes. 24 before July 5? went to see Bob Popeo. Q. A. I went to see them beforehand, to talk CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross Q. Your testimony is that Ropes -- you hadn't retained Ropes & Gray prior to July 5, had you? CHA NCE RY COU RT REP ORT ERS 1 Yes, I had. W. I. Koch - Cross Page 1026 That was a reference to the fact that 1 Page 1028 to them about various different strategies to see if I wanted to hire them. 2 the LLC agreement said that if you accepted the put, 2 3 you had to make payment in -- by wire transfer of 3 4 immediately available funds; correct? 4 was a case called ThoughtWorks that would allow you to do what you set out in your e-mail? 5 6 A. Yes. That's true. 5 Q. And what you asked Mr. Popeo to do is 6 Q. And what they told you was that there MR. HENNES: Objection, Your Honor. 7 you said, "With this clause how can Oxbow delay 7 He's asking specifically what Mr. Koch may or may not 8 payment over a long time? I hope we can delay the 8 have discussed with Ropes & Gray. 9 payment of the Put in order to have negotiating 9 10 leverage." 10 11 12 13 14 That's what you asked Mr. Popeo; MR. CARLINSKY: He just volunteered it. THE COURT: I'll let him ask whether 11 correct? 12 the subject matter was discussed, but if you want to A. Yes. 13 invoke privilege as to what the nature of the advice Q. Now, at this point in time, did you 14 was, you can take that up in due course. 15 understand Mr. Popeo to be representing you or the 15 16 company? Or both? 16 17 A. 17 just did you -- regardless of whether or not they may 18 have told you, regarding ThoughtWorks, if it was a 19 good case, bad case, ridiculous outcome, whatever, did 18 19 He was representing -- he wasn't representing me. He was representing the company. Q. And did you think, then, if he was MR. HENNES: Thank you, Your Honor. THE COURT: The question right now is 20 representing the company, it was appropriate to ask 20 you, in fact, discuss ThoughtWorks with Ropes & Gray 21 him to come up with a strategy on behalf of the 21 before you went to see them? 22 company where you could delay payment of the put for a 22 23 long time in order to give you negotiating leverage? 23 24 A. It says here, "I hope we" -- meaning 24 THE WITNESS: Yes, I did. BY MR. CARLINSKY: Q. CHA NCE RY COU RT REP ORT ERS Now, before we move on to the next CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (61) Pages 1025 - 1028 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 1029 Page 1031 1 document, by some point in August, Mr. Popeo and you 1 something about how that strategy was kept secret, and 2 were discussing the "accept but not pay" ThoughtWorks 2 if Mr. Popeo had ever disclosed that, I think you 3 strategy; correct, sir? 3 said, "I'd have him disbarred." 4 A. 4 My question to you is, Mr. Koch, you 5 knew Mr. Popeo was meeting with Crestview to discuss 5 I would not call it "accept but not pay." That's a -- a disingenuous phrase for that. 6 Q. I'll just refer to it as ThoughtWorks. 6 ThoughtWorks as a means of trying to get leverage to 7 A. Thank you. 7 negotiate down their price; correct, sir? 8 Q. You and Mr. Popeo were discussing the 8 9 10 ThoughtWorks as a strategy? A. No. I don't believe that. I'm -- I 9 believe it was a bona fide strategy that could be A. Yes, we had. 10 employed to offset some of the dangers of the put. Q. And so -- and it was a bona fide strategy. And you were talking about it as a 11 12 strategy to accept the put, use ThoughtWorks to delay 12 13 the payment, and avoid an exit sale; correct, sir? 13 strategy or not, you authorized Mr. Popeo to go to 14 that dinner to discuss that strategy in the hope that 15 there would be a leverage to negotiate Crestview down 16 from 190; isn't that true? 11 14 15 16 17 18 A. Once you accept the put and you're paying for it, that does avoid the exit strategy. Q. Okay. And that was the strategy that you and he were discussing? A. Q. 17 18 Well, it was -- it was a way of -- A. Okay. Whether it was a bona fide You're assuming a lot in that question that is, I think, incorrect. 19 well, we discussed it, but it was really a way to get 19 Q. I'm just asking you -- 20 them out over time and a way that we could pay for it. 20 A. You assumed a lot in it, that -- 21 That's all. 21 22 Q. Well, I want to make sure I cover one you're making presumptions in that question. THE COURT: Hold on. So let's take 22 23 point. Yesterday -- first of all, were you aware that 23 out any assumptions. We all can agree that I know the 24 Mr. Popeo was having discussions with Crestview about 24 least of anyone in the room. So did you know about a CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 the ThoughtWorks strategy in the summer of 2015? A. W. I. Koch - Cross Page 1030 I believe at some time he -- I 1 discussion in which Popeo was talking about 2 ThoughtWorks with the Crestview folks? Page 1032 3 actually -- I'd just be guessing, and I've learned not 3 4 to guess here, so -- 4 Bob Popeo was going to have a meeting with the 5 three -- three that he -- that Michael mentioned, and 5 Q. You are aware, though, that Mr. Popeo THE WITNESS: I don't -- I recall that 6 had a dinner with Mr. Volpert, Mr. Hurst, his partner, 6 I know he was going to talk to them about how to try 7 Mr. Kelly, and Ms. O'Donnell, in August, where 7 to come to a solution. I only found out all the 8 Mr. Popeo and Crestview openly discussed this 8 details of the meeting after it was over. And it's 9 ThoughtWorks strategy? 9 hard for me to give instructions to Mr. Popeo. 10 BY MR. CARLINSKY: 10 A. I believe they discussed a number of 11 things there, and I'd have to go back to his notes or 11 12 my notes to -- to review it. But if you -- if you 12 that earlier in July, you had instructed Mr. Popeo to 13 could show me something, I'm happy to confirm it. 13 contact Crestview and to tell Crestview that you were 14 prepared to buy them out at $190 a share? 14 Q. Well, if your testimony is you're Q. Now, is it true, Mr. Koch, is it true 15 unaware, then please let us know. But you are 15 16 aware -- I mean, you sat in this courtroom yesterday 16 try to buy them out at $190 a share by raising money. 17 and you heard Mr. Volpert testify about a dinner with 17 I don't recall ever instructing Mr. Popeo to say that. 18 Mr. Hurst and Mr. -- I'm sorry, with Mr. Popeo and Mr. 18 Now, Mr. Popeo sometimes acts on what he thinks is 19 Kelly in which they discussed ThoughtWorks. 19 best. Sometimes he tells me. Most of the time he Did you not hear that? 20 does. 20 A. Q. I recall that I said I was going to Can you turn, please, to -- well, let 21 A. I believe I did. But -- 21 22 Q. And I think your testimony was, when 22 me ask you this: Did you, in fact, reach out to Crestview -- you, Bill Koch -- to tell them -- 23 you were shown a document or two that suggested that 23 24 Ms. O'Donnell had raised a 1.5 issue, you said 24 A. CHA NCE RY COU RT REP ORT ERS Well, I believe I did. I heard Bob or CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (62) Pages 1029 - 1032 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 1033 1 Barry say I called them up and said I'm working 1 Page 1035 can't always predict or even understand, you know, 2 like -- like the devil to raise some money to buy you 2 what -- what Bob is going to do with these guys or 3 out at $190. And that sounded very plausible to me, 3 what these guys are going to talk with Bob about. 4 that I probably did that. 4 So -- 5 Q. All right. Let's look at 1167. And I 5 Q. Did you -- A. -- I -- but I was in favor of his 6 can maybe help facilitate this quickly, Mr. Koch. 6 7 It's right on the screen in front of you. These are 7 going to -- talking to them to find out what -- to 8 Mr. Popeo's notes. We looked at these with 8 find out as much as he could. 9 Mr. Volpert. But these are Mr. Popeo's notes from 9 10 July 8, 2015, and it reflects a telephone call with 10 that, at the dinner, that he had discussed the 11 Bill Koch. And you see item number 3, "Crestview 11 ThoughtWorks strategy with Crestview? 12 needs to be nailed down immediately -- 190/share and 12 13 terms are attractive v. exercise of put." 13 his notes. As I said, he had a lot of conversations Do you see that, sir? 14 with them, and I had a lot of conversations with Bob, 14 Q. And after the dinner, did he tell you A. I'd have to look back at my notes and 15 A. Yes, I do. 15 and I could go back to my notes and find out. Well, 16 Q. And that was your view? Buying them 16 you have all my notes, so you could find out. 17 out at 190, whether you agreed with the price or not, 17 18 was an attractive alternative, versus their exercise 18 19 of the put? 19 obnoxious, but maybe you ought to ask Bob about a lot of these questions, because they're his notes. 20 Q. All right. A. You know what? I hate to be a little That wasn't my opinion. I -- that 20 21 was -- well, it's -- what I recall here, that was Bob 21 22 telling me that. 22 we're pulling it up, would it be fair to say you had 23 some serious concerns about the put in the fall of 24 2015? 23 24 A. Q. Okay. So that was Bob Popeo's view that it was more attractive. Q. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Can I ask you to turn to 1509. And as W. I. Koch - Cross Page 1034 Let's move on from there to 1170. 1 Page 1036 A. Yes. Q. And I wanted to direct your attention 2 These are Mr. Popeo's notes of July 10. The first 2 3 entry reflects a telephone call Bill Koch. 3 to 1509. This is an e-mail you wrote to Mr. Popeo on 4 September 23. 4 Number 1, "Crestview" -- and I can't 5 tell whether this is reflecting what you had done or 5 6 Mr. Popeo. But it says -- "spoke to Barry Volpert 6 A. Yes, I do. 7 very friendly -- told him Oxbow could buy him" -- do 7 Q. And here, you say, "I am very 8 you see that? 8 concerned about giving an exit right by a put for a 9 10 Do you see that? A. Yes. 9 new potential investor in the proposed term sheet you Q. -- "would do it with debt" -- and then 10 are negotiating with Crestview. I am afraid we are 11 there's a reference to Bank of America, and it goes 11 just kicking a very explosive, deadly can 5 years down 12 on. "Volpert seemed agreeable -- wants to be kept 12 the road." 13 informed." 13 Do you see that? Do you see that? 14 A. Yes. 15 A. Yes. 15 Q. Just so we have the context, there was 16 Q. Now, after you had told Crestview that 16 a term sheet that was being discussed at the time that 14 17 it was your intent to buy them out at 190, rather than 17 would have given a new investor a put after five 18 have them exercise the put, there was the meeting we 18 years. 19 were talking about in August, where Mr. Popeo and 19 20 Mr. Kelly go and meet with Crestview, and they discuss 20 21 the ThoughtWorks strategy. 21 A. That's correct. 22 Q. Now, referring to the current put, the You knew about that beforehand, didn't 22 23 24 you, Mr. Koch? A. I knew he was going with them, but I That's what you were referring to there; correct, sir? 23 Crestview put, let's look at what you wrote. "We all 24 agree that the current put is very bad for the CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (63) Pages 1033 - 1036 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 company." 2 W. I. Koch - Cross Page 1037 1 Do you see that? 2 3 A. Yes. 3 4 Q. And that was your view at the time; 4 5 correct? 6 7 A. Well, it was everybody's view at that Q. And you say, "I see little difference time. 8 Page 1039 that himself. Q. We have, and we'll look at his testimony probably tomorrow. In fact, the entire legal 5 department -- Mr. Azzi, Mr. Clark, Mr. McAuliffe -- 6 all of those lawyers were telling you that this was a 7 crazy strategy that they did not condone. 8 A. No. They weren't telling me anything. 9 in a future put." The one you referred to as an 9 They were -- they -- Mr. McAuliffe went out, tried to 10 explosive, deadly can. 10 get some memos, and when he couldn't get memos about 11 how bad this ThoughtWorks strategy was, he forced some 12 "There is a wise saying: Always take an option but 12 of the guys internally to write memos to that. 13 never give one. I realize that we can minimize some 13 14 of the current put's damage with the Delaware 14 after he was fired, is that he -- he had -- he was on 15 defense." Now go down a few lines. You say, 11 15 a given agenda. In fact, I believe even -- one Do you see that? 16 company even wrote a memo, and he sent it back to them A. Yes. 17 saying, "Take this out. I want you to put X, Y, and Z Q. "The Delaware defense" was your 18 in it." And we can give you all that stuff to show 19 it, so -- 16 17 18 19 And that's what they told me, after -- reference to ThoughtWorks; right? 20 A. That's correct. 20 21 Q. You don't see any reference in here 21 Q. Who told you that Mr. McAuliffe made them do so? 22 about, hey, and by the way, if we reject the put or we 22 23 don't go with this ThoughtWorks strategy, we always 23 believe a few of the others did. I got to pull out 24 have the 1.5x blocking right to prevent an exit sale? 24 their names, but I will. A. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 3 A. W. I. Koch - Cross Page 1038 That's not mentioned. 2 Well, I believe Dave Clark did, and I 1 That's not mentioned, as well as a lot 2 Q. Page 1040 We're going to look at some of Mr. Clark's testimony on that point. 3 A. And when we looked earlier at your 4 Q. But have you seen his deposition? 5 e-mail in July to Mr. Popeo, where you were asking him 5 A. Yeah. I've seen bits -- bits and 6 to focus on the language about legally available 6 7 funds, there was also no reference at any -- in that 7 8 message about any 1.5 issue; correct? 8 completely rejected any notion that he was told by 9 Mr. McAuliffe what to write in memos? You're aware of 10 that? of other things are not mentioned. Q. 4 9 10 A. Well, that time we were only talking about the ThoughtWorks issue. 11 Q. And just so the Court appreciates 11 12 this, the ThoughtWorks strategy met with a lot of 12 13 resistance from your internal legal department; 13 14 correct? 14 Sure. pieces of it. Q. A. And you're aware that Mr. Clark Well, I -- I would doubt that, but you can always ask him tomorrow. Q. Well, we've already asked him. So we don't need to focus on that right now. 15 A. Oh, yes, it did. 15 16 Q. And, in fact, Mr. McAuliffe was 16 strategy, the concern was that if you accepted the put But going back to the ThoughtWorks 17 strongly opposed to any idea where you would accept 17 but didn't pay, among other things, you created this 18 the put and create that liability for yourself without 18 huge indebtedness for the company; right? 19 satisfying it at that time; correct? 19 20 21 22 23 24 A. That was some people's concerns. But That's true. And I've already 20 I found out later that Bill McAuliffe -- or not -- I'm testified that he had ulterior reasons for that. 21 sorry. Not Bill McAuliffe. Bill Parmelee talked to 22 Bank of America about that, and Bank of America 23 basically said if you get a legal opinion to that 24 effect, or opposite of that effect, we won't count it A. Q. But Mr. Clark was in agreement with Mr. McAuliffe, wasn't he? A. I think you ought to ask Mr. Clark CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (64) Pages 1037 - 1040 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 W. I. Koch - Cross Page 1041 as a -- as a liability on the company. Page 1043 1 Q. Can I go back to my -- A. And also, I can tell you that, to be 2 Q. All right. Let's look at -- 2 3 A. And so -- 3 blunt with you, I preferred the ThoughtWorks strategy 4 Q. Mr. Koch, let's look at 1566. These 4 more than any others at that point in time. 5 6 A. 7 Q. 8 9 5 are Mr. Popeo's notes of a call -- in that September/October time frame, when the 1566. 7 ThoughtWorks strategy was being discussed, did you And can you show it on the screen? It 8 say, "Hey, we always have this other option, which is 9 we reject the put. Crestview can't get out, because 10 there's no chance that we'll have an exit sale at 414"? You didn't say that, did you? This reflects a call on October 2. 11 Mr. Popeo, a bunch of lawyers from Morris Nichols and 11 12 from Mintz Levin. 12 13 And you see, down at number 6, it Well, as I just told you, I thought that the ThoughtWorks strategy was the best option overall. says, "Present intention is to accept the put notice 14 15 but not the put price -- avoid an 'exit sale.'" 15 17 A. 13 14 16 Am I correct, though, that at no point 6 might be faster. 10 Q. What number is this, please? Q. Okay. Can we go to 1415, please. Do you see that? 16 Now, your testimony a few moments ago to the Vice A. Yes. 17 Chancellor was that Dave Clark was pressured by Q. And at that point in time -- by the 18 Mr. McAuliffe into putting things in -- e-mails in 19 way, you don't see any reference to rejecting the put 19 memos that he didn't agree with. That was your 20 and avoiding an exit sale, because we have some kind 20 testimony. 21 of 1.5 strategy that would block an exit sale? 21 18 You don't see any of that there, do 22 23 22 you? 24 A. I don't see any of it here. Do you stand by that, Mr. Koch? A. that I believe that Michael McAuliffe was pressuring 24 the guys on his staff to put in what -- what they CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. I testified, or I'll testify again, 23 W. I. Koch - Cross Page 1042 And you would agree with me that this 1 Page 1044 wanted. I may be wrong about Dave Clark, but that's my firm belief. 2 risk, whether Bank of America agreed or didn't agree, 2 3 that it created this risk of creating -- by the way, 3 Q. Turn to the page Bates numbered 18244. 4 just so we're clear, the risk was, if you took on the 4 A. Yes. 5 indebtedness, you might blow your bank covenants; 5 Q. You see there's an e-mail from 6 correct? 6 Mr. Clark to Mr. Townsend on September 3, 2015, 7 regarding the put. Do you see that? 7 A. Well, as I said, the big -- our lead 8 banker said if we got the right legal opinion, it 8 A. Yes. 9 wouldn't blow the covenants -- 9 Q. And again, looking at the last 10 Q. Okay. 10 paragraph, there's obviously a discussion of this 11 A. -- period, all right? So -- 11 "funds legally available" ThoughtWorks argument. And 12 Q. And you were prepared to proceed with 12 Mr. Clark writes, "Michael and I find this argument 13 a strategy to avoid an exit sale of accepting but not 13 unconvincing. If you look at pages 30 and 31 of the 14 paying the put, and run that risk you've just 14 Chancery Court decision, the Chancery Court makes 15 identified, rather than just saying to all these great 15 clear that its decision was designed to fulfill 'the 16 lawyers, "Why are we knocking ourselves out? Why 16 settled expectations of investors and issuers as 17 don't we just reject and tell Crestview there can't be 17 evidenced by established commercial practice.' The 18 an exit sale because everyone needs to get 414?" 18 Court pointed out that SV Investments could have 19 required a drag-along right or some other alternative 20 protection which could have better protected it -- as, Why didn't you say that, Mr. Koch? 19 20 You didn't, did you? 21 in this case, Crestview and Load Line did by 22 any risk -- if you got a legal opinion and the bank 22 negotiating the Exit Sale alternative." 23 would accept that, there wasn't, then, any legal risk 23 24 that you assumed in your question. 24 21 A. Well, I didn't believe that there was Do you see that? A. CHA NCE RY COU RT REP ORT ERS Yes, I do. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (65) Pages 1041 - 1044 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Q. 1 2 4 Were you aware that that was 1 Mr. Clark's view in the fall of 2015? 3 A. W. I. Koch - Cross Page 1045 Was I aware of that in the fall of 2015? A. Page 1047 Not that. What I was angry about was 2 that he, on his own, without discussing it with me, 3 went out and gathered a bunch of legal opinions that 4 were something I was working on, without even telling me. 5 Q. Yes. 5 6 A. Mr. Clark's view? 6 7 Q. Yes. 7 8 A. No. I wasn't. 8 A. 9 Q. Did you ask him, since he had been 9 Q. -- am I right? A. You didn't let me finish. And -- Q. I'm just asking yes or no questions, 10 there in 2007 when the negotiations took place of the 10 11 LLC agreement, and was your counsel who was helping 11 12 incorporate what you say were your intended changes to 12 13 the LLC agreement, what he thought on these issues? 13 14 A. No, I did not, because as I said Q. But the legal opinion you were working on was the one you were working with Mr. Popeo on -I -- Mr. Koch. A. No. I'm just telling you that -- that 14 I can -- there's some -- you know, I can't answer a 15 before, that Michael had walled off the legal 15 question "When did you stop beating your wife," you 16 department from me and told all the lawyers, except 16 know. 17 for Azzi, not to contact -- not to talk to me. 17 Q. 18 Are you aware that Mr. Clark testified 18 Q. I didn't ask that question. A. I know. But you asked something 19 in deposition that all of the lawyers in the legal 19 similar to that. And I'm just telling you that you 20 department "uniformly disagreed with Mr. Popeo's 20 asked me, was I mad at him because of what -- of what 21 position that Oxbow could accept but not pay the put"? 21 he did on this. And I was telling you why I was upset 22 with him, that he violated his authority limits. And 23 violating the authority limits in our company was a 24 very serious thing to do. And that's an egregious 22 23 A. I don't know. But -- I doubt it, but -Q. 24 Let me read you Mr. Clark's testimony, CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 at page 29, line 2. 1 "Question: So the view that was 2 W. I. Koch - Cross Page 1046 2 3 expressed in this memo to" -- let me back up for a 3 4 second. 4 You received a compilation of memos 5 6 from Mr. McAuliffe at some point; correct? 7 5 6 Page 1048 cause for dismissal. Q. Was that part of the reason you fired A. That was part of it, but not all of Q. So you were angry with him that he had him? it. A. Yes, I did. 7 gone out to get independent opinions from some law Q. And those were memos from Cravath, 8 firms regarding whether the strategy that you were 9 K&L Gates, and one that the legal department itself 9 advocating be taken to avoid an exit sale was legally 10 had, all on the subject of the put? 10 tenable or not? 8 11 A. I think there were two or three that 11 A. No. I told you again -- I'll tell you 12 were authored by some of the guys on the legal staff, 12 again. I was very upset with him that he violated his 13 yes. 13 authority limits. He did not have the authority to go 14 out and get these opinions or retain these lawyers to 15 do that without coming to me. And -- 14 15 Q. You understood that there were also memos from Cravath and from K&L Gates? 16 A. Yes. 16 17 Q. And they uniformly said that you could 17 18 not accept the put but not pay; correct, sir? 19 A. 20 what he wanted. 21 Q. 18 Well, that was Michael's line. That's And you were angry that Mr. McAuliffe, Q. If he had come to you, what would you have told him? No, right? A. I would -- (laughing.) Please don't 19 put words in my mouth. What I would have told him to 20 do was let's find some other lawyers, other than the 21 guys that we know that are very close to Crestview, 22 your general counsel, had gone out -- as opposed to 22 very close to the -- to -- Cravath was extremely close 23 relying on Mr. Popeo, he had gone out and sought 23 to Crestview. 24 advice of some independent law firms? 24 CHA NCE RY COU RT REP ORT ERS And any of these lawyers -- we could CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (66) Pages 1045 - 1048 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross 1 Page 1049 find people who knew a lot about the ThoughtWorks and 1 Page 1051 opinions, and he was the boss of those guys in the 2 knew a lot about this put issue and have them getting 2 legal department. And he walled everybody off from me 3 different opinions, and then hash it out -- if there's 3 except for Pierre Azzi. And -- 4 a different opinion, then you hash it out and work out 4 5 and see what the best strategy is. That's what I 5 with the position that Mr. McAuliffe was taking, 6 would have done. 6 wasn't he? 7 Q. Q. And Mr. Azzi was also in agreement Mr. Koch, do you have any basis for 7 A. I'm not sure about that. 8 the statement that you just made that Cravath was very 8 Q. Okay. In any event, let me read you 9 close to Crestview? 9 10 A. 11 12 Oh, yeah. 10 Q. From whom? 11 A. Well, from Dave Clark, who told me 12 regards to the memo from the legal department that Mr. McAuliffe had prepared. 13 that when we hired Cravath, and that Townsend hired -- 13 14 had numerous lunches with Crestview and numerous 14 15 meetings with Crestview. 15 16 17 Q. Mr. Koch, you're just making this up, sir, aren't you? 18 19 24 that was expressed in this memo to Bill Koch" -It's on the screen in front of you, You had been using Cravath for years 23 Question, at line 29: "So the view Can I see line 29, please? I am not making it up. 22 -- your current general counsel, in Q. Q. A. Q. A. A. 21 Sure. 17 19 as your corporate counsel, hadn't you? A. 16 18 20 Mr. Clark's testimony -- 20 page 29, line 2. A. Oh, you said line 2? I thought you said line 29. Q. "So the view that was expressed in I had not been using them for years. 21 Q. The company had. 22 this memo to Bill Koch about the unenforceability of A. The company had used them 23 ThoughtWorks was a view that you shared, correct? occasionally, not particularly. And also, you know, "Answer: Yes. 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1050 Page 1052 1 we could -- I could -- we could get the data on 1 2 when -- on when -- on Townsend. 2 Mr. Koch that you had any disagreements with this 3 conclusion, right? 3 In fact, when we called up Townsend to "Question: And you didn't tell 4 talk about his relationship with Crestview -- or when 4 "Answer: No. 5 Bob did -- Townsend wouldn't talk on the phone. He 5 "Question: And you didn't send any 6 had his litigator talking on the phone with Bob Popeo. 6 emails or created any other documents that reflected 7 So they're very worried -- 7 that you disagreed with the conclusions in this email 8 that went to Mr. Koch, correct? 8 9 10 11 12 Q. Are you talking about when the litigation was now underway? A. No. No. Before the litigation was Mr. Koch, let me ask you a question. "Question: That's because in your 10 11 started. Q. "Answer: No. 9 honest and objective -- withdrawn. "That's because in your best, honest 12 13 I just am going to try to get you very specific 13 legal judgment you believed that this was good solid 14 questions -- 14 advice, correct? 15 A. Uh-huh. 15 16 Q. -- so we don't go off on tangents. 16 Mr. McAuliffe and the legal 17 17 "Answer: Yes." Do you see that? A. Yes. Q. Are you suggesting Mr. Clark was 18 department, who all uniformly believed there was no 18 19 basis for your put -- are you suggesting that Mr. 19 prevaricating when he gave that testimony in 20 Azzi, Mr. Clark, all of them were either in cahoots 20 deposition? 21 with Crestview or were being pressured against their 21 A. No, I'm not. I don't mean to. 22 wills by Mr. McAuliffe? 22 Q. Now, did there come a point in time 23 24 A. I'm not saying that all of them were. I'm not -- I'm saying that Michael had very strong 23 where, in 2015, in addition to the ThoughtWorks 24 strategy, you started having discussions about doing a CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (67) Pages 1049 - 1052 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 potential reverse merger into a SPAC? 2 3 A. W. I. Koch - Cross Page 1053 What -- what were your words in it? Page 1055 1 A. Yes. 2 Q. And what was your response? 3 A. Well, if you look at it, in the -- 4 Q. Yes. Did you consider it? 4 Q. You thought that Plan B was 5 A. Yes. 5 interesting; correct? 6 Q. And let's look at 1719. Do you have 6 A. 7 Q. I apologize. 8 A. The -- I sent an e-mail to him saying 7 That I thought about doing it, or what? that in front of you, Mr. Koch? 8 9 A. Yes, I do. Q. And you'll see -- this is Mr. Azzi. 9 10 He's the in-house lawyer who works both for the 10 11 company and he works for you personally; correct? Well, I -- please let me answer it. "Interesting." Q. Right. And what you were referring to 11 was this idea of a Plan B to block an exit sale if 12 A. At times he does. 12 Crestview was not bought out; right? 13 Q. Okay. And you'll see that in October, 13 A. Well, no, it would be part of it -- it 14 on October 29, he writes an e-mail to you. He says, 14 would eliminate an exit sale, but it would also give 15 "Bill, I spoke to Othon yesterday" -- that's the Ropes 15 Crestview a -- a market to sell their stock, to get 16 & Gray lawyers that you had hired to represent you 16 out. 17 personally; correct? 17 18 19 A. Where are you reading? Because I see -- okay. Q. 20 Pierre Azzi to Bill Koch at 11:46 p.m. 18 Q. Now, Mr. Koch, you're a private company, Oxbow; correct? 19 A. Yes. 20 Q. And you prefer to be a private 21 Right on the screen in front of you, Mr. Koch, if it's 21 22 easier to look at it there. company; right, Mr. Koch? 22 A. Under most conditions I do. 23 A. Well -- 23 Q. Okay. In fact, you've been pretty 24 Q. Do you see it? 24 much against becoming a public company; right, sir? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 A. 4 I'm -- I'm trying to find it on the Q. 1 2 paper so I can see what else is going on. 3 W. I. Koch - Cross Page 1054 1719. Do you have that JX in front of you? 3 4 A. Page 1056 Well, I've -- I was a big investor and chairman of a public company. Q. But I asked you only whether you preferred to remain a public company. I have the what? 5 A. Q. 1719. 6 Q. I mean a private company. A. Yeah. I have 1719. 7 A. That depends upon the terms and Q. Okay. 8 A. What page? 9 Q. The first page. 10 A. Okay. Now, where in the -- in the 11 5 A. 6 7 8 9 10 11 Oh -- conditions -Q. Okay. A. -- and whose partner you have -- and which partners you have. 12 Q. Let's look at the next tab, 1721. 13 Q. One line down from the top. 13 A. Sure. 14 A. Yeah. 14 Q. Continuing the discussion. We're now 15 Q. So Mr. Azzi writes -- 15 16 A. Now I've found it. Thank you. 16 A. Uh-huh. 17 Q. Okay. "Bill, I spoke to Othon 17 Q. And just so we remember, the put was 12 page is this? at November 1. 18 yesterday and he has an interesting, out of the box 18 19 idea. I asked him to flush it out a bit in writing 19 A. That's right. 20 (see below). It is probably not an ideal Plan A 20 Q. And you see that here is an e-mail 21 (i.e., new investor), but may be a good Plan B (i.e., 21 from you to Ms. Cohen and Mr. Carr at Goldman Sachs. 22 strategy to block an Exit Sale if Crestview is not 22 And you write, in the second line, "I do not want to 23 bought out)." 23 be a public company, but becoming one could cancel the 24 Put Right. Maybe a plan C." 24 Do you see that? exercised on September 28. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (68) Pages 1053 - 1056 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 3 Page 1059 Do you see that? 1 called it a plan C. I didn't put it up as high as a A. Yes. 2 B, because of the problems of -- of being a public Q. Sir, you were against being a public 3 company. 1 2 W. I. Koch - Cross Page 1057 4 company, but if it meant canceling the put and 4 5 avoiding the exit sale that would follow, you were 5 discussion about, hey, Pierre, why do we need to go 6 prepared to consider going public, weren't you? 6 public when we can reject the put and we can block an Q. Now, again, more documents. No 7 exit sale because unless everyone gets 414, there 8 considering going public to get rid of Crestview. 8 can't be an exit sale? No reference to that in your 9 That was the primary goal, is to get them out. 9 e-mails again, sir; correct? 7 A. Q. 10 I would say it differently. I was That's not what you wrote, though. 10 A. No. There isn't. Do you want to know 11 the reason or -- 12 A. Well -- 12 Q. No. 13 Q. Those were your words. 13 A. -- do you want to walk on? 14 A. But also, as I told you before, the 14 Q. We'll just walk on. 11 You said it would cancel the put right. 15 SPAC allows people to sell their stock on the public 15 A. Okay. That's interesting. 16 market so they get out. And then you don't have to go 16 Q. Now, let's look at -- we're going to 17 through the hassle of selling the company. 17 Q. 18 Well, let's go back to Mr. Azzi's move forward now a few months. 18 A. 19 e-mail, where he's talking about the idea of a SPAC 19 Q. And we're going to look at 3017. 20 not to get Crestview out, but, in fact, to lock them 20 A. Do you know which book that's in? 21 in. 21 Q. By the way, before we even get Uh-huh. 22 A. I don't think a SPAC -- 22 there -- it's -- I don't know. I think it's going to 23 Q. Do you see him referring to blocking 23 be in Binder 2. It might be in the third. 24 an exit sale -- 24 A. CHA NCE RY COU RT REP ORT ERS It's in the third. CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1058 A. No. You're -- 1 2 3 Q. -- if Crestview is not bought out? 2 to follow up on something, so that the Court has an A. I don't think you understand -- maybe 3 4 you do. You're -- 4 appreciation regarding this SPAC option. 5 Q. I just -- 5 6 A. May I finish, please? 6 A. MR. CARLINSKY: Your Honor, I would 7 Q. Well -- A. It was confused for -- it lasted for 7 Q. Page 1060 1 But before we get there, I just want The SPAC option was something that was actually pursued for months; correct, Mr. Koch? Not very long. I don't -- 8 ask that the witness respond to my question. He's 8 9 very -- 9 months. Some of it dragged on because we had other 10 10 things to do, but the facts died -- I mean, the SPAC 11 you're phrasing things, and I'm saying that my 11 had a provision in it that would make it un -- 12 ultimate goal, in all these alternatives, was to get 12 undoable. I mean, not undoable. Not doable. 13 Crestview out. A SPAC was the way to do it, because 13 14 they could register their stock and they could sell 14 you pursued at least through January or February. Do 15 it. 15 you remember that? 16 A. Yeah. But we didn't pursue it -- Q. In fact -- A. -- intently. We had three or four A. I'm trying to. I disagree with how Now, was that better? That was better 16 17 than being tied to the hip with Crestview for another 17 18 ten years, in my opinion. 18 19 Q. Do you see what Mr. Azzi wrote? The 19 Q. Something -- meaning the SPAC option meetings on it, I guess. 20 Plan B is if Crestview is not bought out, here's a 20 Q. 21 strategy to block an exit sale. 21 or Avenue Capital? 22 23 24 A. Meetings with the folks from Boulevard Do you see that? 22 Well, a SPAC does block the exit sale. 23 at it a little bit on our own. But -- and it rapidly 24 became undoable. But they still have an exit path. And that's why I A. CHA NCE RY COU RT REP ORT ERS Somewhat in there, yes. And we looked CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (69) Pages 1057 - 1060 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 2 Q. It was undoable because you didn't like the terms? 3 W. I. Koch - Cross Page 1061 Page 1063 1 meet and decide whether to accept the put or accept 2 what this ThoughtWorks strategy or reject the put, two 3 weeks from -- two weeks hence, on January 19; correct, 4 the -- the SPAC, to get approval on the SPAC took six 4 sir? 5 months, or some-month period of time, and it -- and we 5 6 got a -- and the put and everything else was preceded 6 7 that. So we couldn't get it done within the time 7 8 period. 8 A. 9 Q. No. No. It was undoable because I'll take your word for it. I -- Q. I'm representing to you, from the metadata, it's January 5, 2016. 9 A. Okay. 10 But what you're telling the Court is the problem with 10 Q. Now, Mr. McAuliffe, in his memo to you 11 the SPAC option was you couldn't actually get it done 11 and to Mr. Johnson, entitled "Company Action Regarding 12 to invalidate the put before the put period ultimately 12 Put Notice," it says, "This memorandum addresses Oxbow 13 required you to either accept or reject; correct, sir? 13 Carbon ... response to the Put Notice communicated by 14 both the minority members/investors .... Based on the 15 LLC Agreement, as amended, the required Put Closing 16 date is January 19, 2016. The Oxbow Carbon ... Board 17 (less the board members representing the exercising 14 15 16 17 We're going to look at that document. A. actually, I don't see a date on this. A. My -- when -- there was other reasons Q. But can we just establish that that too. was -- when you say it wasn't doable -- 18 A. That's -- 18 Put Parties) will soon determine if, and how, to 19 Q. -- you were advised that you could not 19 respond to the Put Notice. The consequences of the 20 Board's decision are significant, even fundamental, to No, no -- 21 the company's ability to continue to operate." 20 complete the SPAC in time to prevent an exit sale -- 21 A. 22 Q. -- and knock out the put. 22 23 A. It's not to prevent an exit sale. 23 A. Yes, I do. 24 Q. Pretty strong words from the company's 24 It's to provide an alternative to get out. Do you see that? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1062 Page 1064 1 Q. Okay. We'll look at that in a minute. 1 general counsel; correct? 2 A. And so -- 2 A. That's not -- yes. That is. 3 Q. Let me just stick with the document I 3 Q. Look down at the footnote. Footnote 4 asked you to pull up. 4 1. "The Oxbow Legal Department lawyers uniformly 5 A. Sure. I've forgotten the number now. 5 disagree with the position that the Company can 6 Q. Do you have 3017? 6 properly accept the Put Notice, but not pay the full 7 A. Yes. 7 Put Price at the Put Closing." 8 Q. This is a document you and I spoke 8 Do you see that? 9 about in your deposition. And even though it doesn't 9 10 have a date printed on it, this is a them that 10 11 Mr. McAuliffe prepared on January 5, 2016. 11 Mr. McAuliffe had been telling you, at least 12 throughout the fall; correct, sir? Do you remember this document from 12 13 14 your depo? A. 13 14 I don't recognize it just -- I'll A. Yes. Q. Consistent with the advice that A. much throughout the fall. 15 recognize it if I finish reading it. It's pretty 15 Q. 16 long. Can you -- 16 strike that. 17 Q. 17 Right. And I just wanted to ask you Well, he wasn't talking to me very Consistent with the advice that -It's consistent with what the memos 18 if you recognize it. We covered this in your 18 that he had provided you in the fall from those 19 deposition, and you told me you believed you had 19 various law firms all reflected; correct, sir? 20 received it. And if you want me to show you the 20 21 deposition cite for that, I'll ask my -- 21 22 23 24 A. From two outside law firms, yes. Q. Now, if you could turn in a few more A. No. I -- I agree, I saw it. 22 pages, the page ending 254397. Tell me when you have Q. Okay. And just so, again, we're 23 that in front of you. 24 A. clear, this is January 5. The board is scheduled to CHA NCE RY COU RT REP ORT ERS Yes. CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (70) Pages 1061 - 1064 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross Q. 1 W. I. Koch - Cross Page 1065 And looking down about four Page 1067 1 holders who aren't close to getting 1.5, that an exit 2 paragraphs, there's a paragraph that begins, "I fully 2 sale would be blocked unless everyone got 400 or $414 3 understand." 3 a unit. Am I correct, sir? 4 Do you see that? 4 A. No. He didn't say that. Q. And two weeks before the board is 5 A. Yes. 5 6 Q. He says, "I fully understand the 6 scheduled to vote on this momentous issue, there's 7 sensitivities of the situation. I also acknowledge 7 still no discussion from Mr. McAuliffe or the entire 8 that the choices the Company faces are difficult and 8 legal department -- Mr. Clark, Mr. Azzi -- where 9 laden with emotion. However, the basic framework for 9 anyone is saying to you, "Don't worry. Let's not go 10 the current issues dates to 2007 and to the current 10 down this path of ThoughtWorks, with all the risks 11 lack of available funds to buy out the minority 11 attendant to it. Let's just say put's rejected, 12 investors." 12 because we've got an ability to block Crestview's exit Do you see that? 13 sale." A. Yes. 14 Q. And then go down one more paragraph. 13 14 Nobody told you that? 15 A. 16 What Mr. McAuliffe told you was, in his view, "The 16 Q. Am I right, though, sir? 17 preferrable path forward is to shift attention from 17 A. No one did tell me that from that 18 the Put Closing (and avoid a dispute regarding it) to 18 19 engaging Crestview and Load Line regarding the 19 Q. Okay. Now -- 20 post-Put Closing world in which they have a vested 20 A. Except Pierre may have. 21 option for force a whole company sale. Even with 21 Q. I'd like to move forward -- 22 Crestview and Load Line having a vested right/option 22 A. As I said, except Pierre may have. 23 to force a whole company sale, they have numerous 23 Q. Let's look at 2092. 24 (maybe compelling) reasons not to do so." 24 A. Uh-huh. 15 group. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Right. You gave a nice speech there. W. I. Koch - Cross Page 1066 Do you see that? 1 Q. Page 1068 2092 is an e-mail from Mr. Leone-Quick 2 A. Yes. 2 3 Q. Now, there's no mention by 3 4 Mr. McAuliffe -- by the way, we heard testimony 4 5 Mr. McAuliffe was around when Amendment 3 was put in 5 Q. Okay. 6 place. There was discussion about what Mr. McAuliffe 6 A. What's it again? 2092? 7 did or didn't say about OCIC or Ingraham. We've 7 Q. 2092. 8 covered all of that territory. I'm not going to 8 A. Yes. I have it. 9 retread it. 9 Q. Okay. It's an e-mail from But there's nothing that Mr. McAuliffe to Mr. Popeo, on January 17. A. I don't have it yet. I thought it was in Book 3. Instead, it's in Book 2. 10 Mr. Leone-Quick to Mr. Popeo, copying a number of his 11 says in this document, or in any of the other 11 colleagues. 12 documents that he provided to you, where he told you, 12 13 in words or substance, that there was any impediment 13 14 to Crestview forcing an exit sale if the put was 14 15 rejected. 15 Chancellor understands, there was a meeting -- a board Would you agree with that, Mr. Koch? 16 meeting on the 15th where the discussion of the -- of I agree that -- I agree that he 17 the put was raised, and then there was a subsequent 18 meeting on the 19th. 10 16 17 18 A. probably didn't put this in here. Uh-huh. Yes. Q. And this, by the way, just so the Vice And there's nothing that you've ever 19 20 seen from Mr. McAuliffe in this memo or the other memo 20 21 that he gave to you where he said to you, in words or 21 A. Yes. Yes, I remember that. 22 substance -- 22 Q. So this is the weekend in between. 19 Q. Do you see that? A. Do you remember that? The ultimate vote was put off till the 19th? 23 A. Uh-huh. 23 And Mr. Leone-Quick writes to Mr. Popeo, "Here is a 24 Q. -- that because there were two small 24 document with some of our initial thinking on Oxbow's CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (71) Pages 1065 - 1068 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross W. I. Koch - Cross Page 1069 Page 1071 And so -- and I don't remember seeing 1 options, especially if pit rejects the Put. You can 1 2 see that this document includes an interesting (and 2 3 possibly appealing) 'hybrid' approach that Greg and 3 4 Eric thought of where we would have a negotiated 4 5 acceptance of the Put in which Crestview would get a 5 6 springing right to move to the Exit Sale process if a 6 7 redemption does not occur after a certain agreed-upon 7 8 date. This would buy us some time to figure out if we 8 makes is, "If an Exit Sale occurs" -- at some higher A. these options. Q. Were you told that one of the options Mintz was considering was stipulating to a higher FMV? A. No. I thought -- I didn't -- no. I don't remember being told that at all. Q. And then you see the second point that 9 can negotiate an acceptable financing and close any 9 stipulated value -- "increases the proceeds going to 10 gap, but would give Crestview certainty with respect 10 OCMHI, and other WIK entities." 11 to moving into an Exit Sale process ...." 11 12 13 14 15 16 17 18 19 20 21 A. 12 A. Yes. Are you asking me to verify all this, 13 Q. And then you see, if you turn to the or -Q. Well, I'm going to ask you a question. Do you see that language here? A. Do you see that? Do you see that? 14 next page, 27894, there's another discussion, under 15 (b). "Allows for OCMHI to Explore a Drag Along Sale." Do you see that? 16 I haven't -- I haven't studied these, 17 18 and they weren't -- they're not to me, so -- A. Yes. Q. And it talks about the "Minimum that Q. I understand that. 19 must go to Crestview in a drag-along sale would be A. -- I could just -- I could just say to 20 approximately $65 per unit, which gets Crestview a 21 [2x] return on their total investment." you that's what the language says. And -- 22 Q. That's a perfect answer. 22 23 A. -- that's what it says. 23 A. Do you see that? Yes. 24 Q. And if we could flip the page, we go 24 Q. Now, there was talk in which you were CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1070 Page 1072 1 in one page, do you see that the Mintz lawyers have 1 involved -- it may not have been right here on January 2 prepared a list of potential options on that weekend. 2 17 -- but you were involved in discussions with your 3 lawyers about the possibility of trying to preempt an exit sale by having OCMH do a drag; correct, sir? 3 And option number 1 on page 27893 is 4 "Reject/Ignore Put." And then it goes -- there's some 4 5 possible conditions. And then you see, under (iii), 5 A. 6 one of their suggested options or strategies is, 6 that, as I recall. 7 "Stipulate to higher Fair Market Value (Crestview's 7 8 original mark of $190)?" 8 an OCMH drag, you might even be able to do it where Do you see that? 9 Ingraham would be the entity that would be buying the units. Remember that? 9 Q. We had some very brief discussions on And the idea was that if you could do 10 A. Yes. 10 11 Q. And one of the benefits that's pointed 11 A. No. Q. We'll look at that tomorrow. I think 12 out, if you stipulate to a higher fair market value, 12 13 is, "Decreases the chances of a successful Exit Sale." 13 14 we're going to run out of time today. Do you see that? 14 A. 15 A. Well, that's what this says, yes. 15 Q. Let me ask you this -- 16 Q. And you would agree -- 16 A. -- have the money to buy the units, 17 A. Those are the words on this page. 17 Q. And you would agree there would be no 18 Q. You understood, by the way, that if 18 Ingraham didn't -- so -- 19 reason to stipulate to a higher fair market value of 19 OCMH did a drag at $65 per unit, it could drag 20 190 if the bogey's 414 anyway; right? That wouldn't 20 Crestview and Load Line, and there was no 1.5 or any 21 make any sense to you? 21 other type of return on investment clause in the OCMH 22 drag section for these other members, including all 23 your family and friends. 22 23 24 A. Look, I'm just repeating what's on this book. Q. Okay. 24 CHA NCE RY COU RT REP ORT ERS You understood that, didn't you? CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (72) Pages 1069 - 1072 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 2 A. Page 1073 I don't recall that, because I didn't pay any attention to that, to the drag. 3 W. I. Koch - Cross Q. 1 Page 1075 So long as Load Line and Crestview got 2 2.5, everyone else has to go along, whether they're at 3 1.5, whether they're at .5, whether they're at a 4 drag, you are aware, are you not, that in the OCMH 4 losing number. 5 drag, there's only a requirement that Crestview and 5 6 Load Line get 2.5 times their return on investment? 6 Q. Well, let me ask you, independent of a Do you remember that that's what you intended in 2007, or you just don't recall? 7 A. That's correct. 7 8 Q. There's no similar requirement or 8 right. If they had a drag right, I wanted a drag right. So I remember that. 9 protection for any other member. You understand that; 9 10 right? 10 11 A. Q. No. I remember wanting to have a drag Well, do you remember you wanted a 11 drag right that didn't provide any protections to any 12 It's been a long time. Probably isn't, but I don't 12 other members -- family, later-added members, anyone 13 know. 13 else, Sulphur executives, as it turns out -- other 14 than the 2.5 to Crestview and Load Line? A. Q. 14 I'd have to go back and look at it. You're not aware of that, sir? You 15 testified at length yesterday, as your lawyer walked 15 16 you through section after section of the agreement, 16 17 about what the agreement meant and what you intended 17 18 in 2007. 18 You're telling us now you don't know, 19 19 20 sitting here, without the aid of the document, what 20 21 the OCMH drag section requires or allows for? 21 22 23 A. I don't know all the ins and outs of the -- of the 2.5 -- or the drag-along. I don't. Q. 24 1 A. Well, are you -- A. Look, you keep on asking me, I'll give you the same answer. I don't recall it now. And -Q. Okay. A. -- I'd be happy to go back and look at it tonight if you'd like. Q. Can I ask you to please turn to 2094. Do you have that in front of you? 22 A. Yes. 23 Q. It's an e-mail from Mr. Kelly to 24 Mr. Popeo on January 16. So again, it's right in this CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1074 Because I haven't spent a lot of time 1 particular weekend. And I want to direct your 2 studying that, even though at one time I did. But at 2 attention to the bottom e-mail from Mr. Kelly, at 3 this time, I didn't. So -- because I thought it would 3 11:01 p.m. 4 be -- it wasn't -- it was moot. 4 5 Q. Well, were you aware that in the OCMH Page 1076 And he writes, "Bob, I have been 5 thinking about the fork in the road of rejecting the 6 drag, there is no 1.5 requirement or 2.5 requirement, 6 Put Notice or simply not responding and where that 7 or even a fair market value requirement -- 7 would lead beyond activating the Exit Sale process ...." 8 A. I -- 8 9 Q. -- for any members, other than 9 10 Crestview and Load Line, who have to get 2.5x? 11 A. I'd have to look at the agreement, but Do you see that? 10 A. Yes. 11 Q. Now, I'm going to ask you to go to the 12 I'll take your word for it so you won't have to spend 12 next page. And there's a paragraph that begins with 13 a lot of time on it. 13 the word "Because." Q. 14 14 15 16 17 A. Q. I -- as I said, I haven't read that in 16 17 Well, that was language that you requested in 2007. Do you remember -- 20 Do you see that? 15 a long time. 18 19 Okay. But other than my word for it, you don't have a recollection of that? A. That's the second paragraph down, am I Q. Yeah. It says -- and I'll read out right? 18 loud so we can follow along. He writes, "Because the 19 Exit Sale process will just be starting and will take A. Yeah. 20 some months of time, besides the likelihood that no Q. -- that being part of what you 21 Exit Sale at or above $169/unit will be available for 22 intended? Which was if you wanted to drag, you could 22 a long time, it is reasonably likely Bill will have a 23 drag -- 23 good opportunity to negotiate an acceptable outcome 24 with Crestview and Load Line." 21 24 A. That's right. CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (73) Pages 1073 - 1076 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 2 3 W. I. Koch - Cross Page 1077 Page 1079 Do you see that? 1 and he's entitled to his own opinions. And he's A. Yes. 2 writing to Mr. Popeo, who was your lead lawyer. But Q. And then, if you go down, the last 3 were you aware that at least the head corporate lawyer 4 sentence says, "Rather, it is based on what Crestview 4 on the transaction at the time continued to be of the 5 and Load Line will in fact agree to, including because 5 belief that 169 was the bogey for an exit sale, 6 they realize they may well not get out at $169 ... 6 regardless of how likely or unlikely it was that 7 through an Exit Sale for a long time or ever." 7 someone would emerge at 169? 8 Do you see that? 8 A. I'll tell you, I didn't -- I didn't 9 A. Yes. 9 know that this was his opinion, and actually, I don't 10 Q. And that's consistent with what you 10 care. 11 were being told by your lawyers in January, which was 11 12 after the Moelis valuation had come in at 169, they 12 minute, in the few minutes we have left, about the 13 were telling you, in the market that you were facing 13 board meeting that took place on January 19. That's 14 at that time, the likelihood of a bidder emerging to 14 the meeting, you testified on direct -- 15 bid 169 per unit for the company was unlikely; isn't 15 A. Uh-huh. 16 that true, Mr. Koch? 16 Q. -- the board is presented with the 17 A. Well, I think that's what Rich Kelly 17 is saying. But he's one guy with one opinion, so -- 18 A. Yes. 19 Q. And Mr. Popeo, who had, for months and 18 Q. 19 20 Let's look down to the last paragraph of that same document. 21 A. Again, you know, I haven't read these. Q. All right. Well, let's talk for a question thumbs up or thumbs down on the put; correct? 20 months, been advocating this ThoughtWorks strategy of 21 accepting the put, did an about-face. And his 22 recommendation in that meeting to the board was, "I 23 Q. Well, I realize that -- 23 don't think we should do this. I think we should 24 A. They're -- I know -- 24 reject the put." Remember that? 22 They weren't sent to me, so -- CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 2 3 Q. -- but these are your lawyers. 1 A. You're using me to get them into 2 Q. 5 6 8 A. Q. Q. And you, in response, said you So stipulated. 4 accepted and you employ the ThoughtWorks strategy. All right. Let's look at the last -- 5 Remember that? 6 Well, I appreciate you're stipulating something that I say. Thank you. 9 Yes, I do. strongly disagree and were advocating that the put be if you look at the last paragraph, Mr. Kelly writes -- 7 Page 1080 A. 3 evidence, I guess, which is fair game, I guess. 4 W. I. Koch - Cross Page 1078 Finally agreed on something, Mr. Koch. A. Oh, I -- I -- I remember saying that 7 was my preference for me and my family. But I also 8 said, if most the other people want that, and it's 9 probably better for the company, to reject the put. So I said that too. 10 Now if I go to sleep, maybe there will be a deal to be 10 11 had. 11 Q. Now in that meeting, Mr. Koch -- 12 A. Oh. And excuse me, and I voted All right. So look at the last 12 13 paragraph. "This is all based on the assumption that 13 14 the declining value of Oxbow versus FMV of $169/unit 14 Q. 15 precludes an Exit Sale under Article XIII, Section 15 voted unanimously -- 16 8(e). If that premise is wrong, Bill could end up an 16 A. Uh-huh. 17 involuntary seller but that prospect seems remote and 17 Q. -- and as part of your plea to your 18 it will take a good while anyhow to find out if that 18 fellow directors, you, in fact, told them that they 19 is right. Bill (and Bridget) will need to be OK if, 19 owed you some loyalty to you personally. Remember 20 however unlikely, he sells the Company at $169/unit 20 that? 21 through [an] Exit Sale." 22 unanimously with all the others. Right. And at some point before you 21 A. I don't remember that at all. Do you see that? 22 Q. You don't remember it one way or the A. No, I don't. 23 A. Yes. 23 24 Q. Now, I realize that this is Mr. Kelly, 24 other? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (74) Pages 1077 - 1080 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 Q. W. I. Koch - Cross Page 1081 So if Mr. McAuliffe testified under 1 Page 1083 sometimes throws people off. 2 oath that that is, in fact, something you said, you'd 2 A. 3 have no basis to disagree? 3 Q. No. 2068. 4 A. I'm sorry. I told you I had problems 4 5 A. 5 that, because I did not -- 6 7 I would -- I would severely doubt Q. If it were in his notes of that 6 meeting -- 8 A. Excuse me. You're interrupting me JX 208? 98? with numbers. Yes. Q. These are Mr. McAuliffe's notes of the 7 board meeting on January 19. Mr. McAuliffe testified 8 under oath, poor guy, for 12 hours in a deposition. 9 again. Because I do not put personal loyalty to me as 9 But I'm going to direct your attention to the very 10 a -- a significant requirement. 10 last page. 11 12 Q. 11 I'm glad you underscored the word "significant." 13 Now, let me ask you about the meeting, In fact, if you want to go back one 12 page to 17 -- the page ending -- oh. The problem is 13 there are two Bates numbers. So look at the smaller 14 Mr. Koch. At that meeting, when the put was rejected, 14 one. That is 21725. 15 there was no discussion about there would be a block 15 16 of an exit sale regardless, because there was this 16 A. Yes. 17 1.5x requirement, or any requirement that everyone get 17 Q. And at the top of the page you see 18 414. Am I correct, sir? Do you see that Bates number? 18 Mr. McAuliffe wrote number 4. And you'll see, about 19 A. I don't recall one. And -- 19 two-thirds of the way down, it says "D. Rosow made the 20 Q. Okay. 20 motion -- to reject put" -- I can't read the rest of 21 A. -- I'd be surprised if -- 21 it. But you see that was the motion that was made. 22 Q. And in fact -- 22 "[Rich] Callahan recorded the motion." 23 A. Excuse me. I'd be surprised if either 23 24 24 Bob or I brought it up. Do you see that? A. CHA NCE RY COU RT REP ORT ERS Yes. CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross W. I. Koch - Cross Page 1082 You'd be surprised if you brought it 2 page -- so now we're at the point in the meeting where 3 A. Yeah. 3 the put has been rejected. The board is sitting 4 Q. Well, you do recall that after the put 4 there, and they know what's coming next. What's was rejected, you and your board designee, Mr. 5 coming next is, you just told us clear as day, 6 Rosow -- who doesn't appear to be here anymore -- said 6 Crestview has already told you, "We're going to invoke 7 to the board -- by the way, you knew that when you 7 the exit sale." 8 rejected the put, the next thing that would happen was 8 9 Crestview was going to request an exit sale? That was 9 10 clear to you? 2 5 up? 1 Q. Page 1084 Q. 1 And then, if you turn to the next And do you see what Mr. McAuliffe writes down at the bottom? 10 A. Yes. 11 A. Sure. Yes. I knew that. 11 Q. "Next steps were discussed 12 Q. And you do recall that after you 12 rejected the put, you and Mr. Rosow instructed the 13 And Mr. McAuliffe testified under oath 14 board that the next steps were to obstruct and derail 14 that those were statements made by you and Mr. Rosow. 15 the process. 15 A. Do you remember that, sir? 16 Q. That he testified to it? A. No, I don't. 17 A. That he testified to it? I -- I -- I Q. I'm going to ask you to look at 18 13 16 17 18 19 Exhibit JX 2068. 20 19 Oh, I doubt that seriously, but -- doubt that -- that either Rosow or I said this. Q. Mr. Koch, isn't it a fact that in that 20 board meeting -- and Ms. O'Donnell was present, 21 Mr. Johnson was present, your other designees were 22 present -- that after the put was rejected, in fact, Oh, 2-0. 23 what you told the board were the next steps were to It's the Brooklyn accent. It 24 obstruct and derail the process? A. JX Q -- I don't see. Is there a Q in 22 Q. JX 2-0 -- 23 A. 24 Q. 21 obstruct/derail process" -- and then -- "(delay)." there? CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (75) Pages 1081 - 1084 In re Oxbow Carbon LLC Unitholder Litigation - 7/13/17 Trial Transcript, Volume IV - Del. Chanc. C.A. No. 12447-VCL W. I. Koch - Cross W. I. Koch - Cross 1 A. W. I. Koch - Cross Page 1085 1 I don't -- as I said, I don't recall Page 1087 tomorrow and revitalized. 2 that, and I don't believe I said it. But -- I 2 3 disagree with it. But -- 3 you've already stood up. Here's what I'm expecting. 4 I'm expecting that we're going to finish Mr. Koch 5 tomorrow. I am expecting that you-all will have 4 5 Q. dishonest under oath? 6 7 8 9 10 11 You think Mr. McAuliffe would be Before everybody stands up -- oh, A. No comment. 6 discussed the Popeo issue, and that if there's going Q. I'd ask you to answer the question, 7 to be a decision made to call him, that you-all will 8 either have a plan as to how to do that or you will 9 have competing proposals as to how to do that. And 10 then we'll address that tomorrow and otherwise 11 continue making progress. sir. A. I don't know. At times I did question his honesty, and so I -- I don't know. Q. Now, we have two minutes. But 12 before -- before we end for the day, and I want to use 12 Fair enough? 13 every one as efficiently as I may. 13 MR. CARLINSKY: Thank you, Your Honor. 14 MR. NACHBAR: Fair enough. 14 You had a conversation shortly after 15 this board meeting with Bob Popeo, where you 15 16 instructed Bob Popeo to develop a strategy to avoid an 16 17 exit sale, didn't you, Mr. Koch? 17 18 A. THE COURT: Have a good evening, everyone. (Court in recess at 4:45 p.m.) 18 I had a -- I don't say that I -- to 19 avoid an exit sale. But I said -- I said to him 19 20 "Devise a lawsuit." Or devise something on it so that 20 21 we don't -- well, I'm not sure exactly what I said. I 21 22 have to look at his notes to see, and look at my 22 23 notes, because I'm confusing different times with my 23 24 conversations with him. 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS W. I. Koch - Cross 1 Q. Page 1086 Page 1088 1 Well, we know that you told him to INDEX 2 prepare a lawsuit, and we'll get to that, as well, 2 PLAINTIFFS' WITNESSES Direct Cross Redr. Recr. 3 tomorrow. 3 William I. Koch Cont'd 4 A. Sure. Good. 4 5 Q. And in fact, you had told Mr. Popeo 5 6 and Mr. Leone-Quick to have a lawsuit prepared even 6 7 before you went into the board meeting on January 19, 7 8 didn't you? 8 9 A. 10 Yes. But that was a different lawsuit 10 than we filed. Q. 12 do with 1.5; correct? 12 13 A. 13 That was a lawsuit that had nothing to That's right. It was a declaratory 11 14 judgment -- 15 Q. On the ThoughtWorks -- 15 16 A. -- on the ThoughtWorks -- yes. 16 17 Q. And, in fact, you know that that 17 complaint doesn't say a word about this 1.5 issue? 18 18 19 A. No. It was a different strategy. 19 20 Q. Let me just ask you to turn to 2224. 20 THE COURT: We're not going to do 21 21 22 856 9 11 14 788 --- that. We're going to stop there for the day. 22 23 MR. CARLINSKY: Okay. 23 24 THE COURT: We'll come back refreshed 24 CHA NCE RY COU RT REP ORT ERS CHA NCE RY COU RT REP ORT ERS CHANCERY COURT REPORTERS (76) Pages 1085 - 1088 969/11 970/1 970/9 970/14 980/16 980/20 BY MR. CARLINSKY: 994/19 994/23 995/3 [21] 856/7 860/9 1005/17 1005/20 861/14 872/23 879/11 1006/8 1008/9 1008/12 940/11 943/23 949/2 1009/6 1009/11 952/20 969/17 970/10 1015/23 1028/10 970/18 977/14 980/21 1028/15 1031/21 995/4 1004/21 1006/9 1086/20 1086/23 1009/13 1022/6 1087/14 1028/22 1032/9 THE WITNESS: [15] BY MR. 788/4 798/21 798/23 LEONE-QUICK: [2] 799/2 860/7 861/12 788/6 799/3 872/11 872/14 872/21 MR. CARLINSKY: [39] 879/10 970/4 1005/18 855/7 855/10 855/23 1005/24 1028/21 856/4 860/4 861/10 1032/2 879/7 881/14 932/6 933/4 933/6 933/10 $ 934/8 936/3 936/6 $1,360.2 [1] 877/24 937/9 938/3 939/11 $1,449 [1] 877/22 939/16 940/7 940/19 $10 [1] 854/14 941/16 943/20 952/19 $10 million [1] 854/14 969/2 970/16 977/13 $122 [1] 916/4 980/18 995/1 1006/6 $154 [1] 885/4 1008/7 1008/11 1009/1 $159.73 [1] 878/1 1009/9 1009/12 1028/8 $169 [16] 809/2 811/6 1058/6 1086/22 811/7 827/24 865/17 1087/12 871/14 878/19 920/4 MR. GARDENER: [3] 928/22 928/23 951/3 939/17 940/17 940/21 958/8 1076/21 1077/6 MR. HENNES: [6] 1078/14 1078/20 968/21 970/12 1005/13 $169/Unit [10] 809/2 1005/16 1028/5 811/6 811/7 827/24 1028/14 865/17 871/14 920/4 MR. LEONE-QUICK: 1076/21 1078/14 [11] 788/3 791/19 1078/20 791/22 798/17 798/20 $169M [1] 955/6 798/22 799/1 855/2 $176 [2] 862/19 880/19 941/18 941/23 977/10 $190 [8] 809/1 809/2 MR. McBRIDE: [3] 928/7 928/9 1032/14 855/11 855/16 855/22 1032/16 1033/3 1070/8 MR. NACHBAR: [7] $190/Unit [3] 809/1 934/3 934/23 935/18 809/2 928/9 937/20 940/8 952/16 $250 [2] 908/15 960/18 1087/13 $27 [1] 982/23 MR. NORMAN: [2] $27 million [1] 982/23 860/20 861/9 $27.5 [1] 944/19 MS. MARURI: [1] $27.5 million [1] 862/1 944/19 THE CLERK: [1] $27.9 [11] 824/23 994/22 880/14 881/1 883/5 THE COURT CLERK: 886/20 910/21 916/13 [1] 860/8 917/21 918/5 946/23 THE COURT: [59] 962/21 788/2 791/21 798/19 $27.9 million [8] 854/15 855/1 855/6 824/23 880/14 881/1 855/9 855/15 855/20 886/20 916/13 917/21 856/1 856/5 860/22 946/23 962/21 872/7 872/12 872/15 $40 [1] 845/23 872/22 879/5 879/8 $40 million [1] 845/23 931/21 933/2 933/5 $414 [3] 856/13 856/22 933/9 934/1 935/8 1067/2 936/2 936/5 937/3 $450 [2] 963/15 983/21 937/12 938/4 939/12 $65 [2] 1071/20 939/24 940/9 941/22 1072/19 943/22 948/24 952/18 $750,000 [1] 851/19 $750K [2] 852/2 853/2 ' '07 [3] 829/19 904/11 905/3 '11 [1] 1023/9 '14 [1] 794/24 '16 [1] 795/1 '3 [1] 833/10 'common [1] 951/18 'exit [1] 1041/15 'hybrid' [1] 1069/3 'Listen [1] 1004/4 'Look [1] 1003/20 'make [1] 957/20 'Mr. [1] 1001/19 'Mr. Carr [1] 1001/19 'show [1] 986/23 'the [1] 1044/15 'these' [1] 799/20 -and [7] 786/4 786/10 786/17 786/19 787/12 787/15 787/20 . .5 [3] 961/22 962/10 1075/3 .6 [1] 983/13 0 0079 [1] 816/4 0521 [1] 785/24 0776 [1] 851/9 1 1.5 [60] 790/22 790/23 791/7 792/5 792/14 792/18 792/19 811/9 811/21 811/21 812/19 822/21 826/6 826/11 828/2 828/24 829/7 830/1 856/14 859/2 859/19 859/24 866/1 871/14 871/22 875/9 881/11 909/6 914/22 915/16 917/22 918/6 921/16 922/6 922/19 929/2 931/4 942/22 943/11 955/5 958/14 963/13 973/8 978/11 983/17 996/16 997/24 998/1 1001/22 1003/18 1004/1 1030/24 1038/8 1041/21 1067/1 1072/20 1074/6 1075/3 1086/12 1086/18 1.5x [31] 822/13 830/15 830/24 880/10 886/18 910/22 944/15 944/20 946/6 950/9 950/12 951/2 951/2 951/22 953/6 957/20 962/20 965/8 968/17 977/24 982/23 983/15 983/19 986/11 986/20 987/14 987/17 993/20 997/22 1037/24 1081/17 10 [8] 801/15 831/19 1012/6 1012/8 1013/4 1013/8 1013/21 1034/2 100 [2] 844/11 870/8 100% must [2] 962/24 963/15 10:00pm [1] 917/10 10:11 a.m [1] 816/15 10:22 [1] 825/12 10:22 p.m [1] 827/10 10:22:02 [1] 827/11 10:22:28 [2] 827/11 868/5 10th [2] 806/20 831/22 11 [3] 908/4 909/4 940/20 11/4 [1] 975/23 11/4/15 [1] 975/24 113870 [1] 917/17 114 [1] 892/1 11400 [1] 785/23 115 [1] 912/16 1160 [2] 1024/12 1024/17 1167 [1] 1033/5 1170 [1] 1034/1 11:00 [2] 854/17 855/1 11:01 [1] 1076/3 11:46 [1] 1053/20 11th [1] 964/22 12 [5] 941/22 954/6 954/13 967/6 1083/8 1207 [1] 985/9 1211 [1] 986/5 12447-VCL [1] 785/3 12:30 [1] 932/8 12B [1] 785/10 12th [1] 981/6 13 [2] 785/12 984/2 14 [1] 941/22 1415 [1] 1043/15 15 [5] 816/1 818/11 975/24 994/22 1008/13 1509 [2] 1035/21 1036/3 1566 [2] 1041/4 1041/7 159 [1] 880/20 15th [4] 815/19 817/18 818/7 1068/16 16 [6] 814/4 862/14 862/17 960/2 980/15 1075/24 160 [1] 960/16 169 [29] 809/20 810/6 810/13 811/20 821/4 823/11 823/11 826/5 863/23 871/20 873/20 885/10 886/1 895/10 920/10 920/14 928/8 928/12 929/13 930/5 930/23 931/15 955/21 CHANCERY COURT REPORTERS 958/16 959/14 1077/12 1077/15 1079/5 1079/7 16th [6] 814/21 816/15 816/23 817/21 818/17 819/7 17 [7] 881/5 883/3 893/21 894/13 918/5 1068/2 1072/2 17 -- the [1] 1083/12 170 [1] 960/16 1719 [4] 1053/6 1054/3 1054/6 1054/7 1721 [1] 1056/12 175 [1] 823/11 176 [12] 871/1 871/2 878/19 886/1 888/16 897/2 897/5 897/23 920/10 921/13 954/15 960/16 176.59 [1] 820/24 18 [5] 790/7 884/12 887/18 898/10 1001/14 180 degrees [1] 850/19 18244 [1] 1044/3 18th [5] 793/4 984/11 984/23 994/16 995/11 19 [6] 908/19 1063/3 1063/16 1079/13 1083/7 1086/7 190 [17] 810/4 810/5 810/12 810/18 811/21 811/22 928/13 928/16 929/14 929/24 930/1 930/23 931/15 1031/16 1033/17 1034/17 1070/20 190/share [1] 1033/12 19801 [1] 785/23 19th [7] 792/20 793/4 793/8 793/12 799/9 1068/18 1068/20 1:30 [1] 933/2 1st [1] 919/17 2 2-0 [2] 1082/22 1082/23 2.5 [5] 1073/6 1073/23 1074/6 1075/2 1075/14 2.5x [1] 1074/10 20 [7] 802/2 845/23 851/8 852/5 873/3 935/1 1023/12 2001 [1] 792/7 2002 [1] 833/10 2007 [13] 865/14 873/24 874/11 882/1 882/3 971/17 996/3 996/12 1045/10 1065/10 1073/18 1074/19 1075/6 2010 [1] 1023/9 2011 [1] 956/14 2012 [1] 850/15 2014 [2] 852/2 853/2 2015 [34] 788/13 (77) BY MR. CARLINSKY: - 2015 2 2015... [33] 788/16 788/20 795/1 806/24 829/13 838/17 841/22 842/17 848/5 850/15 852/23 857/7 857/17 858/17 859/19 892/12 892/24 905/20 931/13 948/8 957/5 971/22 972/18 998/13 1024/8 1024/22 1030/1 1033/10 1035/24 1044/6 1045/2 1045/4 1052/23 2016 [37] 788/20 789/9 790/7 799/8 801/15 806/6 806/9 807/21 808/15 813/3 813/5 814/4 818/11 819/12 831/19 856/21 862/10 865/9 893/21 918/5 930/15 943/16 948/2 954/6 960/2 967/6 980/12 998/17 998/19 1001/14 1009/20 1020/22 1023/14 1024/7 1062/11 1063/8 1063/16 2017 [1] 785/12 205426 [1] 1000/10 2068 [2] 1082/19 1083/3 208 [1] 1083/2 2092 [4] 1067/23 1068/1 1068/6 1068/7 2094 [1] 1075/20 2098 [1] 790/5 2099 [2] 791/12 791/21 20th [1] 917/5 21 [8] 875/6 875/8 876/1 909/22 910/20 912/9 914/13 917/5 2148 [1] 798/9 2168 [2] 800/8 800/15 21725 [1] 1083/14 21st [1] 825/7 22 [4] 799/8 827/12 916/2 919/4 2224 [1] 1086/20 2250 [1] 801/12 2259 [3] 954/1 954/5 954/8 23 [6] 808/15 920/24 924/3 1006/14 1006/14 1036/4 2304 [1] 808/14 2305 [1] 925/14 2372 [1] 815/3 23727 [3] 915/1 915/7 915/8 2377 [2] 816/7 816/12 2379 [2] 813/19 818/23 2394 [2] 876/10 876/12 24 [8] 817/17 818/4 818/7 884/3 909/17 948/2 1001/13 1002/17 24006 [1] 952/14 2406 [2] 898/4 903/2 2407 [4] 883/10 884/3 884/10 887/4 2410 [1] 905/10 2422 [2] 887/16 887/17 2442 [2] 916/24 917/4 2444 [4] 914/12 914/17 914/18 915/2 2451 [2] 912/3 912/6 2459 [4] 822/6 909/16 910/19 911/7 2463 [1] 915/23 2469 [2] 919/2 919/3 2471 [2] 913/21 913/24 24766 [1] 894/4 24767 [1] 894/19 2479 [2] 920/17 920/18 2490 [3] 944/2 944/3 944/4 2495 [4] 945/19 948/22 949/5 952/20 24th [4] 944/6 946/14 946/19 973/14 25 [9] 825/12 862/4 862/10 865/9 883/3 970/23 971/8 1023/7 1023/8 250-something [1] 891/5 2502 [9] 825/8 860/3 860/12 860/18 861/16 861/18 862/2 862/5 881/20 2503 [2] 827/6 828/10 2504 [3] 867/14 867/19 870/4 2523 [1] 861/14 254397 [1] 1064/22 255-0521 [1] 785/24 2550 [3] 956/22 956/24 957/1 2594 [1] 954/7 25th [1] 825/7 26 [2] 826/23 984/19 2654 [2] 984/8 984/18 2658 [2] 995/6 1000/9 26654 [1] 984/17 27 [2] 875/21 881/10 27.9 [20] 822/12 875/8 876/2 876/5 876/23 881/11 903/9 903/14 903/21 904/5 914/9 914/21 922/13 922/16 925/5 941/2 947/4 963/4 966/14 968/2 27.94 [1] 963/14 270 [1] 940/20 271 [1] 940/21 272 [1] 941/22 27223 [2] 924/8 924/15 27292 [1] 954/21 274 [1] 941/22 275 [2] 875/21 875/21 27893 [1] 1070/3 27894 [1] 1071/14 27th [1] 970/6 28 [6] 882/20 904/2 911/15 913/17 971/8 1056/18 28th [2] 883/22 944/13 29 [6] 1046/1 1051/14 1051/16 1051/18 1051/20 1053/14 29.7 [1] 941/10 2:18 p.m [1] 816/23 2nd [3] 919/17 919/23 919/23 2x [1] 1071/21 3 3-6 [1] 803/2 30 [6] 817/7 893/22 933/18 970/23 988/3 1044/13 30 percent [1] 971/9 300 [1] 857/19 3013 [3] 892/10 893/18 894/1 3017 [3] 893/23 1059/19 1062/6 302 [1] 785/24 31 [1] 1044/13 3119 [4] 966/6 967/2 967/8 967/13 3129 [1] 972/20 319 [1] 967/12 3199 [3] 967/7 975/10 1009/17 34.8 [1] 922/12 343 [1] 877/4 344 [1] 880/23 35 [1] 941/7 365401 [1] 828/20 366404 [2] 975/20 977/14 366569 [1] 980/20 366581 [2] 1009/19 1009/24 37 [1] 1023/15 3:16 [1] 1009/1 3:54 p.m [1] 817/2 3rd [1] 919/17 4 4/12/16 [1] 980/15 400 [1] 1067/2 414 [37] 857/10 858/18 859/4 859/5 859/17 867/1 885/15 885/21 886/9 891/6 891/23 897/6 897/12 898/2 900/15 905/5 907/22 908/24 921/9 923/6 923/11 923/13 929/9 929/18 930/17 931/1 931/12 931/19 960/18 973/10 980/1 981/14 1042/18 1043/11 1059/7 1070/20 1081/18 4277 [3] 923/18 923/19 962/4 4281 [3] 961/12 961/13 962/5 4282 [1] 964/20 4283 [2] 983/6 983/8 450 [9] 857/20 962/24 963/8 966/10 966/21 968/2 971/5 981/14 984/5 4938 [1] 962/1 4978 [3] 961/21 962/2 962/7 4:45 [1] 1087/17 4th [1] 971/21 5 5.2 million [1] 850/1 5/6 [1] 1009/23 50 [1] 971/7 50 percent [1] 805/10 50/50 [1] 971/7 500 [2] 785/11 785/23 54 [1] 790/4 55 [1] 791/11 550 [1] 981/13 56 [1] 801/11 58 [1] 808/13 582 [1] 1011/11 59 [5] 813/19 817/1 818/23 820/20 909/18 5th [1] 971/21 6 60 [1] 789/2 60s [1] 846/24 61 [1] 822/4 63 [2] 825/8 827/14 64 [2] 827/5 828/9 65 [1] 831/12 6:49 [1] 887/18 6th [6] 919/24 956/6 956/9 956/18 957/15 961/19 7 737 [1] 873/2 738 [1] 873/10 750 [1] 852/16 78 [2] 814/24 815/2 788 [1] 1088/3 79 [1] 816/4 8 856 [1] 1088/3 8:37 p.m [1] 818/11 8:51:33 [1] 868/5 8th [2] 961/17 964/21 9 909 [2] 1006/14 1006/14 91028 [1] 802/5 9446 [1] 964/24 9454 [1] 983/9 97 [1] 800/9 98 [3] 800/8 800/9 CHANCERY COURT REPORTERS 1083/2 99 [7] 798/8 798/10 798/11 798/12 798/16 799/5 800/15 9:15 [1] 785/13 9th [1] 851/14 A a.m [3] 785/13 816/15 855/1 abilities [1] 845/3 ability [3] 1006/17 1063/21 1067/12 able [6] 789/5 817/6 917/9 929/20 1016/10 1072/8 about-face [1] 1079/21 above [13] 809/1 809/10 810/12 811/5 882/1 900/22 900/24 928/7 928/18 928/22 944/23 959/14 1076/21 ABRAMS [2] 786/15 786/16 absolutely [5] 794/20 820/13 1006/9 1017/22 1027/7 accelerating [1] 986/9 accent [1] 1082/24 accept [14] 789/11 1029/2 1029/4 1029/12 1029/14 1038/17 1041/14 1042/23 1045/21 1046/18 1061/13 1063/1 1063/1 1064/6 acceptable [3] 943/12 1069/9 1076/23 acceptance [1] 1069/5 accepted [4] 849/8 1026/2 1040/16 1080/4 accepting [2] 1042/13 1079/21 accepts [1] 1025/17 accompli [1] 801/23 accomplish [1] 874/19 accomplished [1] 901/23 accordance [2] 830/21 945/6 according [4] 795/13 863/13 871/10 931/10 Accordingly [1] 830/19 accurate [6] 867/7 868/11 876/4 1000/20 1017/23 1025/11 accurately [1] 1010/20 achieve [14] 822/13 856/14 859/23 871/21 875/9 880/9 881/11 886/18 910/22 914/22 915/16 918/6 922/4 1002/2 achieved [5] 873/21 896/3 899/19 926/9 929/13 (78) 2015... - achieved A Acid [1] 896/2 acknowledge [1] 1065/7 acquire [2] 815/17 817/21 Acquisition [3] 787/6 787/6 817/24 act [2] 800/22 812/7 Action [2] 785/3 1063/11 activating [1] 1076/7 Acton [2] 833/19 845/10 acts [1] 1032/18 actual [2] 1023/8 1023/16 add [1] 1005/24 added [1] 1075/12 addition [1] 1052/23 additional [13] 812/2 812/11 813/7 826/21 828/1 831/5 848/22 850/15 865/24 866/5 871/21 957/22 958/6 additionally [1] 1027/9 address [5] 790/13 813/23 933/5 969/14 1087/10 addressed [5] 814/4 815/21 816/18 934/20 969/6 addresses [1] 1063/12 addressing [2] 822/10 884/21 adjusted [5] 886/15 957/19 957/19 957/22 958/6 adjustment [3] 917/22 941/2 941/8 adjustments [4] 879/19 912/16 918/4 918/5 adjusts [1] 877/21 admit [3] 807/9 836/6 854/9 advantage [1] 834/6 advent [1] 973/14 adversarial [1] 998/8 adversary [1] 998/14 advice [24] 796/1 826/20 890/19 893/10 893/14 893/15 893/16 968/7 969/4 969/7 979/17 1002/14 1002/23 1004/24 1005/2 1005/5 1006/5 1007/9 1007/22 1028/13 1046/24 1052/14 1064/10 1064/15 advise [2] 812/2 960/3 advised [10] 893/2 946/13 969/1 969/20 987/3 987/16 987/21 988/11 994/5 1061/19 advising [3] 955/17 968/20 980/13 advisors [3] 787/7 942/19 951/16 advisory [1] 880/6 Advocate [1] 895/2 advocates [1] 907/12 advocating [3] 1048/9 1079/20 1080/3 affected [1] 796/22 affirmed [1] 788/2 afraid [1] 1036/10 afternoon [4] 801/3 933/1 939/18 994/21 afterwards [4] 796/21 804/16 875/22 923/16 against [7] 793/18 831/18 878/19 933/20 1050/21 1055/24 1057/3 age [1] 847/3 agenda [3] 901/21 901/21 1039/15 agendas [4] 843/11 843/12 902/2 991/7 aggregate [8] 822/13 829/1 829/7 880/10 886/18 910/23 918/7 935/13 aggressive [1] 831/24 ago [2] 947/22 1043/16 agreeable [1] 1034/12 agreed [10] 933/14 936/7 937/21 938/3 950/24 993/7 1033/17 1042/2 1069/7 1078/9 agreed-upon [1] 1069/7 agreeing [1] 982/3 ahead [2] 827/12 1019/20 aid [1] 1073/20 AIMCORE [3] 833/9 835/21 836/1 air [2] 849/3 1009/5 all [175] 789/3 789/8 789/15 790/20 791/24 796/4 796/13 801/5 801/17 804/14 805/15 806/16 807/22 808/12 809/8 811/8 811/16 814/18 817/5 818/2 818/14 819/6 820/2 822/7 822/12 823/18 823/19 825/6 825/23 827/23 828/9 828/17 828/22 829/20 829/21 829/23 829/23 830/10 845/22 846/1 846/2 848/19 849/22 850/19 852/14 855/10 855/22 856/16 856/21 857/9 858/3 859/17 861/1 865/16 867/24 872/1 872/6 872/20 877/18 879/4 879/13 880/10 881/12 884/21 885/13 887/6 892/24 896/13 897/18 898/20 899/23 900/2 900/15 900/16 904/24 907/3 909/20 910/22 911/2 914/10 915/16 915/18 918/7 919/13 919/14 920/8 922/3 923/2 927/16 928/2 929/1 929/14 931/22 932/1 932/2 933/7 934/2 935/13 938/3 938/6 938/11 939/8 939/13 941/1 946/24 948/1 948/3 957/7 963/13 970/6 970/10 971/18 972/6 974/20 974/20 975/1 975/7 975/7 977/7 977/22 977/24 978/11 983/19 984/4 985/10 985/14 986/21 989/17 990/5 990/9 990/11 998/24 999/24 1001/23 1002/24 1009/7 1009/8 1011/14 1023/10 1029/21 1029/23 1031/23 1032/7 1033/5 1035/16 1035/17 1036/23 1039/6 1039/18 1041/2 1042/11 1042/15 1045/16 1045/19 1046/10 1048/4 1050/18 1050/20 1050/23 1058/12 1064/19 1066/8 1067/10 1069/13 1071/6 1072/22 1073/22 1078/5 1078/12 1078/13 1079/11 1080/13 1080/21 1087/5 1087/7 allegations [1] 948/19 allocation [1] 945/5 allotted [1] 933/20 allow [6] 805/20 811/18 830/1 906/5 949/17 1028/4 allowed [3] 812/11 911/11 966/14 allowing [1] 982/24 allows [3] 1057/15 1071/15 1073/21 almost [2] 796/1 859/12 alone [1] 821/4 along [11] 811/17 841/16 891/14 891/18 951/19 1044/19 1071/15 1071/19 1073/23 1075/2 1076/18 alternative [4] 1033/18 1044/19 1044/22 1061/24 alternatives [2] 955/2 1058/12 although [4] 795/1 803/1 927/5 1017/6 aluminum [5] 802/18 835/16 835/18 835/20 837/8 always [13] 791/14 845/1 845/5 847/4 847/5 847/17 935/6 979/16 1035/1 1037/12 1037/23 1040/12 1043/8 am [20] 853/1 858/15 887/14 893/7 904/19 954/11 974/14 994/22 1013/14 1036/7 1036/10 1043/5 1047/9 1049/18 1050/13 1067/3 1067/16 1076/15 1081/18 1087/5 amazing [3] 888/11 888/16 896/10 ambush [2] 800/21 801/6 amended [2] 1025/18 1063/15 Amendment [1] 1066/5 America [4] 1034/11 1040/22 1040/22 1042/2 America's [4] 845/6 872/11 902/8 902/16 among [2] 957/16 1040/17 amount [18] 850/16 857/21 858/18 863/12 875/9 880/9 880/15 886/17 888/18 914/22 915/15 920/2 922/3 955/19 958/15 1001/24 1002/3 1003/1 amount' [1] 1004/6 amounts [2] 811/8 929/1 analyses [5] 813/4 835/8 903/22 911/23 916/20 analysis [52] 812/10 812/16 812/24 822/11 823/3 823/7 823/12 823/13 825/3 825/5 831/6 831/7 834/4 834/22 834/24 835/2 835/15 836/3 836/5 836/9 877/21 882/16 884/23 886/14 886/17 886/17 887/9 887/10 887/15 887/20 904/6 909/21 910/20 912/9 912/11 913/13 914/14 915/6 915/13 916/2 916/12 916/23 917/7 917/14 917/20 917/21 918/14 921/16 921/20 CHANCERY COURT REPORTERS 921/23 922/2 979/2 analyze [2] 821/8 836/6 analyzing [2] 836/17 945/1 Anderson [1] 786/10 ANGELINI [1] 787/16 angels [1] 953/20 angry [4] 846/13 1046/21 1047/1 1048/6 anodes [1] 837/8 another [36] 793/1 826/8 830/8 830/8 838/22 846/20 846/23 848/2 851/6 867/11 868/24 869/2 886/14 893/5 902/18 906/10 909/21 912/9 913/3 914/13 916/2 931/3 936/23 945/18 951/11 954/5 954/9 965/2 970/8 978/14 983/8 988/10 1001/6 1008/9 1058/17 1071/14 answer [31] 818/8 873/2 873/9 886/9 892/6 899/7 904/21 951/22 969/22 979/10 982/8 1010/19 1020/9 1020/15 1020/19 1021/2 1021/6 1021/14 1021/19 1021/22 1022/1 1022/5 1047/14 1051/24 1052/4 1052/9 1052/15 1055/6 1069/22 1075/16 1085/7 answered [2] 856/18 965/24 answers [1] 858/11 anybody [2] 832/18 939/15 anybody's [1] 1023/24 anyhow [1] 1078/18 anymore [2] 1005/9 1082/6 anyone [22] 807/14 812/1 819/14 819/17 819/18 821/7 842/1 874/10 887/9 887/12 931/17 951/24 959/3 959/4 960/14 979/23 992/7 1021/11 1021/17 1031/24 1067/9 1075/12 anyway [2] 859/15 1070/20 anywhere [6] 897/6 900/15 900/18 971/16 974/5 974/5 apologize [10] 799/3 816/9 861/10 872/22 937/14 954/8 962/6 972/14 985/23 1055/7 apparently [2] 969/10 981/5 (79) Acid - apparently A appealing [1] 1069/3 appear [4] 855/19 870/13 870/20 1082/6 APPEARANCES [3] 786/1 786/23 787/1 appears [5] 791/2 831/13 853/2 871/4 977/11 applicable [1] 823/5 applied [2] 882/10 942/23 apply [3] 859/6 878/17 979/6 appoint [1] 837/19 appointed [3] 825/19 825/24 868/1 appointees [3] 789/19 825/20 837/16 appreciate [7] 841/17 855/22 858/10 892/7 925/10 1009/6 1078/7 appreciates [1] 1038/11 appreciation [1] 1060/3 approach [6] 798/19 800/21 801/6 956/3 959/24 1069/3 appropriate [9] 809/10 809/18 907/14 928/18 963/3 1026/20 1027/4 1027/8 1027/8 approval [2] 853/6 1061/4 approve [2] 796/6 853/8 approved [3] 855/18 918/15 918/17 approximately [1] 1071/20 April [23] 851/14 943/16 956/6 956/7 956/9 956/18 957/5 957/15 961/17 961/19 964/16 964/21 964/22 967/6 970/6 980/12 981/6 984/2 984/11 984/23 994/16 995/11 1001/14 April 11th [1] 964/22 April 12 [1] 967/6 April 12th [1] 981/6 April 13 [1] 984/2 April 18 [1] 1001/14 April 18th [4] 984/11 984/23 994/16 995/11 April 6 [2] 956/7 957/5 April 6th [5] 956/6 956/9 956/18 957/15 961/19 April 8th [2] 961/17 964/21 April 9th [1] 851/14 arbitrarily [1] 847/18 arc [2] 841/21 843/21 arclight [72] 813/22 814/7 814/21 815/8 815/10 817/7 817/20 818/22 819/20 819/24 820/5 821/14 843/21 862/13 862/18 863/7 877/23 878/15 880/1 880/19 886/1 887/19 891/5 898/14 898/17 899/11 899/22 907/7 907/22 908/4 908/15 914/14 917/19 920/9 921/4 921/8 924/18 944/18 954/14 957/21 957/21 957/24 958/5 958/15 959/11 959/24 960/3 960/8 960/16 960/24 961/1 982/16 1010/6 1010/11 1010/12 1012/11 1012/12 1014/4 1014/22 1015/5 1015/9 1015/14 1016/6 1016/7 1016/20 1017/11 1018/23 1020/4 1022/10 1022/16 1023/3 1024/1 ArcLight's [7] 877/21 897/2 908/8 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1082/18 1085/7 1086/20 ask a [1] 970/12 asked [44] 795/21 814/13 834/23 836/3 839/24 874/8 878/16 878/23 879/10 882/15 886/7 886/8 889/17 903/20 904/4 940/15 956/18 969/1 974/11 987/13 991/13 993/5 993/14 996/13 997/8 997/11 997/21 999/24 1001/5 1003/14 1006/24 1007/4 1008/2 1012/17 1015/1 1016/22 1026/6 1026/11 1040/13 1047/18 1047/20 1054/19 1056/3 1062/4 asking [21] 840/2 872/5 879/1 914/3 931/8 969/13 981/20 981/24 983/4 997/15 998/3 1010/17 1011/13 1013/12 1019/1 1028/7 1031/19 1038/5 1047/11 1069/13 1075/15 asks [1] 912/15 aspects [2] 837/3 837/3 asserting [1] 951/15 asset [1] 848/16 assisting [1] 945/1 associates [2] 787/14 861/4 assumed [2] 1031/20 1042/24 assuming [2] 791/6 1031/17 assumption [7] 822/23 823/10 824/14 825/3 881/9 981/19 1078/13 assumptions [4] 820/23 820/24 981/21 1031/23 assure [2] 811/8 929/1 assured [1] 820/17 astray [1] 903/3 ATHEY [1] 787/19 attached [9] 815/16 815/20 822/11 877/21 878/5 884/22 910/20 912/10 944/11 attaches [2] 814/4 911/6 attaching [1] 801/14 attachment [7] 791/16 791/18 791/19 791/24 828/14 914/20 915/5 attachments [1] 808/16 attempted [1] 989/13 attempting [1] 999/9 attend [1] 1016/23 attendance [8] 957/8 985/11 987/5 1010/13 1015/10 1015/11 1015/15 1017/3 attendant [1] 1067/11 attended [2] 832/21 1016/7 attendees [3] 957/9 976/9 986/3 attention [23] 799/18 800/17 802/24 805/17 816/14 828/22 851/22 894/3 894/20 923/15 924/7 957/12 962/18 964/23 965/4 1009/15 1011/1 1019/19 1036/2 1065/17 1073/2 1076/2 1083/9 attractive [4] 939/2 1033/13 1033/18 1033/24 attributes [1] 880/14 audible [1] 943/14 audit [4] 850/22 852/18 852/23 853/6 August [9] 857/7 857/17 858/17 859/19 864/21 931/13 1029/1 1030/7 1034/19 authored [2] 974/23 1046/12 authority [6] 843/24 1006/22 1047/22 1047/23 1048/13 1048/13 authorization [1] 990/4 authorize [2] 820/8 852/18 authorized [7] 831/9 831/14 852/10 959/23 989/11 989/19 1031/13 authorizes [1] 991/9 authorizing [1] 990/1 available [9] 942/14 970/6 1025/22 1026/4 CHANCERY COURT REPORTERS 1027/9 1038/6 1044/11 1065/11 1076/21 Avenue [1] 1060/21 average [2] 1023/12 1023/15 aviation [3] 848/12 849/6 850/14 avoid [11] 818/19 888/20 951/4 1029/13 1029/15 1041/15 1042/13 1048/9 1065/18 1085/16 1085/19 avoiding [3] 889/14 1041/20 1057/5 aware [46] 799/24 800/4 800/6 801/5 812/9 813/4 815/23 816/22 817/3 817/11 819/17 824/21 826/6 883/2 883/14 883/19 887/8 887/12 887/14 905/2 911/9 913/16 925/3 925/9 929/5 947/12 952/4 953/10 988/7 998/23 1000/24 1022/4 1022/5 1022/18 1029/23 1030/5 1030/16 1040/7 1040/9 1045/1 1045/3 1045/18 1073/4 1073/14 1074/5 1079/3 away [3] 848/21 891/5 1014/5 Azzi [15] 910/3 910/4 910/6 911/10 913/18 1039/5 1045/17 1050/20 1051/3 1051/4 1053/9 1053/20 1054/15 1058/19 1067/8 Azzi's [1] 1057/18 B background [1] 835/11 backside [1] 973/7 backwards [1] 911/12 bad [3] 1028/19 1036/24 1039/11 Bahamas [2] 848/24 849/2 bailiwick [1] 1005/10 balance [1] 838/9 bandwagon [1] 1009/9 bank [9] 795/19 796/23 800/3 1034/11 1040/22 1040/22 1042/2 1042/5 1042/22 banker [2] 796/10 1042/8 bankers [3] 806/3 930/10 930/11 banking [3] 796/5 821/21 955/7 banks [1] 795/7 Bar [6] 786/7 786/12 (80) appealing - Bar B Bar... [4] 787/5 787/14 787/17 787/22 barely [2] 958/23 958/24 BARLOW [1] 786/16 barn [1] 848/22 barred [1] 1003/10 BARRETT [1] 787/2 Barry [10] 787/8 797/20 800/18 804/17 814/13 815/16 831/24 832/15 1033/1 1034/6 Barry/Bob [1] 815/16 based [10] 794/9 803/3 812/23 829/18 907/20 912/11 917/15 1063/14 1077/4 1078/13 basic [2] 823/18 1065/9 basically [8] 804/20 809/20 850/3 889/1 896/20 935/9 961/8 1040/23 basis [10] 791/3 792/17 809/24 823/20 848/14 970/13 1017/24 1049/7 1050/19 1081/3 basketball [1] 844/23 Bates [13] 802/4 828/20 877/4 915/9 917/17 954/18 954/20 977/13 980/17 1009/23 1044/3 1083/13 1083/15 bathroom [1] 832/17 bauxite [1] 835/19 Bayliss [1] 786/16 Beach [3] 832/24 839/8 848/15 beating [1] 1047/15 became [5] 838/14 841/7 842/6 942/21 1060/24 become [6] 837/12 837/16 841/1 842/9 844/1 844/2 becomes [1] 841/22 becoming [5] 842/1 842/7 1027/13 1055/24 1056/23 beforehand [2] 1027/24 1034/22 began [1] 892/20 begin [1] 1009/3 beginning [1] 935/20 begins [3] 950/1 1065/2 1076/12 behalf 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bias [1] 830/9 bid [4] 813/16 834/20 888/18 1077/15 bidder [2] 895/9 1077/14 bidding [3] 797/4 797/5 835/7 big [7] 843/20 849/20 849/20 861/1 861/9 1042/7 1056/1 bigger [1] 918/12 Bill [44] 849/6 849/7 849/24 888/3 894/6 894/17 905/13 905/16 926/19 961/22 962/16 965/3 967/20 970/6 983/13 983/20 988/21 1004/4 1004/5 1004/7 1011/14 1011/20 1015/14 1016/9 1017/15 1017/16 1018/21 1019/11 1019/13 1020/14 1032/23 1033/11 1034/3 1040/20 1040/21 1040/21 1051/15 1051/22 1053/15 1053/20 1054/17 1076/22 1078/16 1078/19 Bill's [1] 805/9 bills [5] 849/12 849/12 849/16 1005/6 1005/15 binder [21] 790/5 797/16 801/11 860/11 860/12 860/14 860/15 861/5 861/18 861/19 861/20 861/20 861/21 861/22 862/2 862/3 883/13 945/19 984/10 995/7 1059/23 binders [6] 860/6 860/7 860/22 860/24 884/7 944/2 bit [25] 788/14 797/8 797/14 797/19 801/8 805/12 808/13 812/21 813/18 815/1 820/21 824/10 839/8 851/13 854/10 865/6 921/15 925/17 928/3 978/15 980/11 1015/7 1017/6 1054/19 1060/23 bits [2] 1040/5 1040/5 BK [2] 1011/19 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1069/8 908/14 913/10 913/12 1072/16 914/7 916/22 918/10 buyer [3] 926/7 930/16 918/17 923/3 923/10 930/24 925/20 927/2 928/11 buying [5] 834/2 837/4 930/6 933/17 933/21 870/8 1033/16 1072/9 934/8 934/22 935/5 935/12 936/19 937/2 C 937/16 938/1 938/2 cahoots [1] 1050/20 938/12 939/7 940/4 calcined [3] 806/12 940/6 942/16 945/23 B 833/14 835/22 capacity [1] 910/7 Cape [1] 839/11 calciner [1] 835/24 calculated [1] 850/15 capital [12] 787/23 817/23 822/13 829/1 calculates [1] 884/23 calculating [4] 822/20 829/7 880/10 886/18 899/9 910/23 918/7 881/1 912/11 922/2 calculation [5] 790/22 1001/23 1060/21 822/24 830/4 859/16 captain [1] 846/6 882/6 car [2] 853/22 853/24 calculations [4] 812/18 carbon [23] 785/3 786/8 786/13 786/14 863/14 871/10 941/1 call [52] 816/16 826/3 792/8 815/21 815/22 817/22 817/22 833/20 826/7 832/17 859/6 833/21 834/2 834/8 859/8 863/2 870/5 836/15 837/7 844/7 888/5 893/20 894/5 894/10 894/11 894/17 877/6 877/12 878/5 896/12 896/16 896/17 878/6 1025/19 1063/13 1063/16 920/23 921/4 924/4 933/12 937/2 937/6 care [2] 809/21 1079/10 938/11 939/5 951/21 954/24 959/19 962/16 carefully [1] 990/24 967/20 967/20 970/3 CARLINSKY [5] 787/2 856/3 951/20 951/22 970/4 970/7 970/9 969/1 984/1 997/24 998/1 1009/19 1011/4 1011/6 Carr [21] 796/9 801/18 1011/7 1011/9 1011/12 801/19 802/12 802/20 1022/19 1023/2 1029/4 804/20 842/24 889/23 1033/10 1034/3 1041/5 898/10 916/14 917/6 924/10 925/3 958/4 1041/10 1087/7 958/11 988/4 990/4 Callahan [2] 825/11 990/8 1001/19 1013/16 1083/22 1056/21 called [24] 804/24 833/14 833/14 834/14 Carr's [3] 924/22 940/14 940/15 835/4 840/19 841/14 851/14 853/21 891/21 carrying [1] 878/23 891/24 892/2 897/17 case [24] 793/18 793/22 794/4 794/7 926/8 936/8 953/15 831/23 856/12 879/2 1006/20 1006/20 1012/17 1015/1 1028/4 904/14 926/19 933/8 1033/1 1050/3 1059/1 934/10 934/11 935/5 calling [2] 907/8 937/8 935/6 936/14 944/7 957/23 973/22 988/3 Callisto [2] 834/24 988/4 1028/4 1028/19 874/3 calls [2] 982/7 999/15 1028/19 1044/21 cash [2] 978/4 979/19 can't [37] 798/14 803/12 803/14 812/5 cause [3] 851/4 968/3 1048/1 846/2 846/9 861/4 865/7 869/20 872/18 caused [1] 811/23 874/5 874/24 877/10 causes [1] 908/2 877/14 898/1 921/18 cc'ing [1] 852/22 929/8 936/23 955/13 cement [1] 802/18 958/17 959/5 978/18 Center [2] 785/11 979/10 979/24 983/17 785/22 988/17 991/23 1015/18 CEO [10] 804/6 842/2 1016/18 1018/4 1034/4 842/7 842/9 842/11 1035/1 1042/17 1043/9 842/13 843/6 844/2 844/6 1016/2 1047/14 1059/8 1083/20 certain [10] 844/23 844/24 857/21 871/20 Canadian [7] 834/13 834/13 834/17 834/18 893/10 893/13 935/21 967/24 979/5 1069/7 834/20 835/4 836/10 certainly [11] 845/6 cancel [2] 1056/23 864/17 865/3 865/6 1057/11 878/7 893/3 893/3 canceling [1] 1057/4 897/11 911/20 958/21 candid [1] 937/9 975/14 capable [1] 858/13 CHANCERY COURT REPORTERS certainty [2] 978/18 1069/10 cetera [2] 795/23 802/18 CFO [2] 849/13 849/15 CHAD [1] 787/3 chain [2] 822/9 852/20 chains [1] 853/11 chairman [3] 844/1 844/1 1056/2 challenging [3] 802/9 802/15 802/23 chance [6] 790/16 803/18 860/4 918/23 954/4 1043/10 Chancellor [4] 785/15 929/23 1043/17 1068/15 CHANCERY [6] 785/1 785/10 785/22 1009/8 1044/14 1044/14 chances [3] 970/23 971/4 1070/13 change [4] 800/23 847/5 852/2 853/2 changed [4] 828/16 839/13 850/19 950/17 changes [6] 847/4 847/7 847/10 873/5 953/9 1045/12 changing [1] 845/5 channels [1] 991/2 characteristics [1] 839/22 characterized [2] 941/12 941/12 charge [6] 833/13 836/14 836/20 837/2 1019/2 1019/3 charged [1] 874/17 chat [1] 933/4 cheaper [1] 805/7 check [4] 842/9 861/20 891/11 932/1 chemical [1] 839/21 chew [1] 1016/18 chief [6] 833/20 837/13 837/21 838/7 838/7 867/7 children [2] 796/11 917/11 China [4] 806/11 806/11 845/20 847/12 Chirlin [1] 967/21 choice [1] 799/21 choices [1] 1065/8 chose [1] 909/3 CHRISTENSEN [1] 787/21 Christina [18] 787/11 787/18 804/5 805/3 805/9 825/22 839/10 840/9 840/13 840/23 841/11 842/8 852/11 853/15 853/18 854/12 979/16 992/14 (82) BROWN - Christina C circulate [2] 918/18 918/21 circulated [1] 918/15 circulating [1] 1009/5 circumstances [2] 848/10 990/10 citation [2] 848/13 940/18 cite [1] 1062/21 cites [1] 1020/10 Civil [1] 785/3 claim [1] 969/4 claimed [2] 969/8 999/11 claiming [1] 999/1 clarification [4] 959/12 960/2 960/11 961/3 clarify [2] 851/16 897/14 Clark [26] 933/13 995/9 995/14 996/2 997/5 997/12 1001/16 1005/5 1005/13 1006/21 1007/12 1007/13 1038/22 1038/24 1039/5 1039/22 1040/7 1043/17 1044/1 1044/6 1044/12 1045/18 1049/12 1050/20 1052/18 1067/8 Clark's [9] 993/12 1000/9 1001/9 1001/13 1040/2 1045/2 1045/6 1045/24 1051/9 clause [3] 982/23 1026/7 1072/21 clawed [1] 969/9 CLAYTON [1] 787/19 clear [27] 832/3 878/13 889/24 891/14 895/10 899/14 906/17 919/14 922/18 929/17 942/21 963/19 964/19 966/7 983/17 983/19 991/8 991/11 993/23 997/12 1018/19 1020/13 1042/4 1044/15 1062/24 1082/10 1084/5 cleared [2] 955/21 958/16 clearing [1] 878/19 clearly [2] 974/8 1007/1 clip [10] 940/23 941/16 941/21 942/1 943/14 1001/11 1002/12 1004/21 1020/8 1022/6 clips [2] 933/21 939/21 close [11] 800/5 840/13 840/24 897/6 921/9 1048/21 1048/22 1048/22 1049/9 1067/1 1069/9 920/2 925/5 926/18 closely [1] 867/11 926/21 927/22 929/21 closing [5] 1025/16 930/4 930/17 941/5 1063/15 1064/7 943/2 953/3 953/22 1065/18 1065/20 953/23 960/1 960/3 Cod [1] 839/11 989/12 990/6 991/10 Cohen [3] 924/11 992/15 992/20 999/17 988/4 1056/21 1016/3 1021/11 Cohn [1] 786/7 coincidence [1] 1024/2 1025/19 1026/16 coke [8] 802/16 802/17 1026/18 1026/20 806/13 806/15 833/15 1026/22 1027/5 1027/6 1027/7 1037/1 1039/16 835/19 837/4 847/1 1040/18 1041/1 cold [1] 938/13 colleagues [1] 1068/11 1047/23 1049/22 1049/23 1053/11 comes [4] 800/9 1055/18 1055/21 849/24 913/18 951/6 comfortable [1] 940/2 1055/24 1056/2 1056/4 1056/6 1056/23 1057/4 coming [10] 895/13 938/20 958/22 958/23 1057/17 1059/3 1063/11 1064/5 1065/8 959/1 978/10 1015/6 1048/15 1084/4 1084/5 1065/21 1065/23 1077/15 1078/20 comment [5] 919/16 939/16 955/13 979/18 1080/9 1085/6 company's [7] 794/12 commented [1] 984/22 925/6 941/13 953/12 commenting [1] 919/6 953/18 1063/21 comments [11] 912/17 1063/24 914/2 914/6 914/11 compare [1] 829/16 919/15 944/11 946/5 compares [1] 887/7 946/8 949/8 949/10 compelling [1] 1065/24 996/7 commercial [5] 837/3 compensation [1] 986/10 837/3 837/13 838/7 1044/17 compensatory [4] 981/8 981/17 982/18 committed [1] 937/2 committee [5] 850/22 983/1 852/18 852/23 853/7 competing [1] 1087/9 986/11 competitive [1] 834/5 competitors [2] 834/14 common [1] 951/21 848/20 communicated [2] 874/22 1063/13 compilation [1] 1046/5 complaining [1] communicating [5] 819/14 819/24 868/10 890/12 874/18 889/18 complaint [1] 1086/18 complete [3] 811/15 communication [3] 931/18 1061/20 816/23 818/10 826/9 completely [2] 846/15 communications [6] 1040/8 800/1 800/5 801/9 814/21 818/16 829/12 completeness [1] 941/20 comp [1] 986/11 companies [5] 796/5 compliment [1] 937/7 796/5 802/17 804/23 compromise [3] 941/3 941/8 941/11 804/23 company [94] 786/14 computer [1] 820/18 788/19 789/24 793/23 computing [1] 941/2 793/24 794/10 794/17 Conaway [1] 787/11 794/19 795/11 796/4 concentrating [1] 838/11 797/5 797/11 804/7 804/19 805/7 810/21 concept [6] 851/13 816/19 820/12 820/15 853/12 883/5 908/21 908/24 926/6 832/6 835/16 835/24 835/24 836/11 838/8 concepts [1] 900/17 838/11 839/21 842/17 concern [1] 1040/16 847/4 848/4 848/6 concerned [4] 845/9 1007/2 1021/22 1036/8 849/5 849/10 853/19 854/4 858/3 920/1 concerns [2] 1035/23 1040/19 conclude [1] 963/16 conclusion [3] 829/14 829/16 1052/3 conclusions [2] 963/10 1052/7 conditions [8] 802/9 803/4 829/17 830/2 934/18 1055/22 1056/8 1070/5 condone [1] 1039/7 conduct [5] 804/9 804/11 805/15 823/3 938/15 conducted [1] 888/7 Conference [1] 954/24 confidential [4] 820/11 820/15 877/13 992/15 confirm [5] 792/13 900/14 990/15 1011/5 1030/13 confirming [1] 992/8 conflict [1] 797/3 conflicting [1] 986/17 confronted [1] 853/21 confused [4] 792/23 879/4 949/1 1060/8 confusing [2] 961/10 1085/23 confusion [5] 803/21 811/23 828/12 961/4 961/6 Congress [2] 999/21 999/23 connection [3] 820/5 838/18 862/8 consequences [1] 1063/19 consider [6] 820/11 907/14 1000/14 1002/4 1053/4 1057/6 consideration [3] 829/3 986/22 1003/20 consideration' [1] 1003/22 considered [1] 880/3 considering [3] 934/13 1057/8 1071/4 consist [1] 825/17 consistent [10] 829/14 896/8 968/6 971/2 976/11 1004/23 1064/10 1064/15 1064/17 1077/10 consistently [1] 795/1 Consolidated [1] 785/3 constantly [1] 854/13 constrained [2] 988/2 988/14 constraining [1] 989/4 constricting [1] 988/22 construction [1] 800/14 consult [1] 942/15 consultant [1] 986/10 CHANCERY COURT REPORTERS consulting [1] 852/14 Cont'd [4] 786/23 787/1 788/6 1088/3 contact [6] 816/17 1017/9 1017/12 1022/9 1032/13 1045/17 contemplated [1] 957/24 contemporaneously [1] 977/2 context [4] 941/2 942/23 974/7 1036/15 contingent [1] 939/8 continuation [2] 944/8 945/14 continue [8] 806/8 909/12 943/21 980/8 989/11 1009/11 1063/21 1087/11 continued [3] 943/6 943/16 1079/4 continues [2] 894/10 945/15 Continuing [1] 1056/14 contract [6] 795/13 795/14 834/18 835/5 835/6 951/17 contrary [4] 950/14 950/17 950/22 951/4 contribution [7] 829/1 829/8 850/5 880/10 886/19 918/7 1001/23 contributions [2] 822/14 910/23 control [1] 805/11 convenience [1] 860/24 conversation [12] 810/9 924/10 961/22 962/11 964/14 965/3 981/22 981/22 1003/17 1011/18 1015/4 1085/14 conversations [8] 840/8 875/22 1008/4 1014/6 1014/8 1035/13 1035/14 1085/24 convey [1] 828/4 conviction [1] 832/12 COO [1] 941/24 cool [1] 872/18 cooperate [2] 901/1 901/8 cooperation [2] 890/7 890/23 cooperative [3] 901/16 901/18 901/20 copied [6] 799/6 818/3 887/11 887/11 911/2 985/7 copies [3] 876/17 884/14 946/1 copious [1] 1016/16 copy [1] 815/24 copying [5] 815/16 (83) circulate - copying C copying... [4] 876/17 898/9 912/9 1068/10 COREY [1] 787/4 corner [1] 877/12 corollary [1] 950/14 corporate [8] 837/22 893/6 948/14 952/7 995/21 995/23 1049/20 1079/3 correct [159] 792/22 818/5 818/13 839/5 853/4 856/15 856/22 857/6 857/10 858/15 858/21 859/1 862/10 862/19 863/7 863/22 864/2 864/5 864/13 864/18 864/24 865/21 866/7 866/16 868/13 871/22 873/14 873/24 876/6 877/8 878/20 880/3 880/16 880/20 881/4 884/19 884/20 885/11 890/13 890/24 892/14 892/21 893/2 893/7 894/23 895/10 897/2 899/20 902/17 902/21 903/10 905/14 906/7 907/24 913/5 916/20 918/16 920/12 920/15 920/16 920/20 920/24 921/9 921/13 921/14 922/6 922/20 923/8 925/21 928/13 943/19 948/15 958/18 959/15 960/10 962/8 966/10 968/8 973/22 976/4 976/5 976/7 978/7 978/13 978/22 987/2 987/6 988/9 991/6 993/18 994/6 996/9 996/14 997/8 997/22 1001/12 1002/13 1003/2 1003/3 1003/6 1003/7 1003/10 1003/11 1003/13 1004/17 1005/1 1005/7 1006/18 1010/6 1010/8 1012/9 1013/23 1016/23 1017/3 1018/23 1020/4 1020/15 1021/5 1021/6 1022/23 1025/2 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905/23 909/1 984/16 1009/22 1062/10 1063/6 1063/16 1069/8 dates [1] 1065/10 daughter [2] 846/14 998/11 Dave [6] 849/1 1006/21 1039/22 1043/17 1044/1 1049/12 DAVID [6] 786/11 787/3 787/9 846/24 967/21 970/7 Davis [2] 889/24 890/1 day [37] 792/11 792/20 815/6 816/1 818/12 867/23 867/23 869/9 878/14 883/16 883/16 883/16 884/11 885/9 887/10 889/23 892/21 900/17 903/15 924/3 934/1 934/9 935/17 937/20 938/8 945/23 951/4 976/2 976/7 976/14 982/6 1013/4 1013/22 1023/4 1084/5 1085/12 1086/22 days [20] 799/8 800/15 825/7 869/19 876/21 878/17 881/21 887/19 906/24 911/16 911/17 916/8 934/21 938/19 961/19 964/22 968/7 974/21 1014/12 1024/1 days' [1] 887/20 dead [7] 888/12 888/19 888/24 889/13 891/4 896/9 896/11 deadly [2] 1036/11 CHANCERY COURT REPORTERS 1037/10 deal [20] 800/24 812/23 867/1 890/21 897/13 898/1 940/4 942/15 1011/15 1011/22 1012/18 1013/2 1013/18 1013/21 1013/24 1014/1 1014/1 1014/3 1015/6 1078/10 dealing [2] 836/9 1027/11 dealings [2] 893/6 893/8 debating [1] 938/18 debt [2] 884/23 1034/10 decide [3] 837/19 843/16 1063/1 decided [4] 831/22 838/2 843/19 845/24 decides [1] 939/5 decimating [1] 847/18 decimation [1] 847/20 decision [8] 794/9 986/9 1013/17 1013/21 1044/14 1044/15 1063/20 1087/7 declaratory [2] 890/2 1086/13 declining [1] 1078/14 Decreases [1] 1070/13 DEDE [1] 787/10 deducted [1] 919/18 deductible [1] 920/2 deducting [1] 875/23 deduction [7] 822/23 863/12 880/3 903/8 904/5 917/21 958/14 deductions [27] 821/14 821/15 821/19 857/21 870/15 870/22 871/5 873/17 878/18 880/18 885/2 885/9 885/24 886/16 898/20 899/3 899/18 900/3 903/5 903/13 903/14 908/9 914/3 914/15 916/5 920/9 959/13 deeply [1] 893/1 Defendant [3] 787/15 787/18 787/23 defendants [3] 787/6 787/11 933/17 defense [2] 1037/15 1037/18 deficient [2] 907/16 908/5 defined [1] 1007/1 definition [1] 829/9 definitive [1] 960/9 degrees [1] 850/19 DELAWARE [6] 785/1 785/12 785/23 890/3 1037/14 1037/18 delay [6] 1026/7 (84) copying... - delay D delay... [5] 1026/8 1026/22 1027/1 1029/12 1084/12 delighted [1] 987/16 delta [4] 978/5 978/6 978/10 979/20 demand [2] 796/2 806/15 demarcation [1] 947/3 denied [1] 813/16 deny [2] 900/10 900/11 department [16] 846/15 846/19 848/12 849/6 850/14 910/11 1038/13 1039/5 1045/16 1045/20 1046/9 1050/18 1051/2 1051/12 1064/4 1067/8 depends [5] 896/13 995/20 995/23 1012/16 1056/7 depo [1] 1062/13 depose [4] 936/9 936/20 936/22 939/8 deposed [2] 934/17 936/9 deposition [38] 817/7 817/13 817/15 868/16 869/16 869/18 869/19 873/2 902/23 904/16 924/23 935/2 935/3 938/15 938/24 963/21 963/24 964/4 974/8 974/10 974/10 974/12 974/19 974/21 996/13 999/5 1000/1 1000/3 1000/4 1000/5 1006/11 1040/4 1045/19 1052/20 1062/9 1062/19 1062/21 1083/8 depositions [1] 974/2 depression [1] 806/17 derail [3] 1082/14 1084/12 1084/24 describe [3] 790/15 804/8 848/9 described [8] 805/23 844/16 847/8 848/3 849/8 850/8 925/1 988/1 describes [1] 801/5 describing [1] 805/16 deserves [2] 854/3 1009/3 designated [1] 935/1 designed 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1079/8 1085/17 1086/8 die [1] 803/19 died [1] 1060/10 difference [1] 1037/8 different [19] 789/23 790/2 798/16 829/22 838/1 847/9 851/17 868/18 919/1 922/12 956/2 978/16 996/1 1028/1 1049/3 1049/4 1085/23 1086/9 1086/19 differently [1] 1057/7 difficult [2] 843/1 1065/8 dig [1] 964/19 digest [1] 917/8 digress [1] 902/13 diluted [2] 878/1 885/3 dilution [3] 810/2 957/19 958/7 dime [1] 800/24 dinner [7] 804/16 917/11 1030/6 1030/17 1031/14 1035/9 1035/10 direct [26] 788/6 832/5 833/16 862/8 873/7 875/2 875/12 894/3 894/20 902/1 923/15 924/7 925/24 929/23 957/12 964/23 965/4 972/19 976/3 1009/15 1010/24 1036/2 1076/1 1079/14 1083/9 1088/2 directed [4] 830/14 953/5 959/24 992/5 direction [3] 1021/15 1021/17 1021/21 directors [22] 789/15 789/16 792/12 792/21 794/6 796/9 826/1 828/15 828/15 837/17 862/22 865/13 866/18 867/3 867/6 868/1 873/19 957/8 976/21 985/12 985/13 1080/18 CHANCERY COURT REPORTERS disagree [13] 876/7 903/11 903/13 903/16 947/8 947/9 963/10 983/3 1058/10 1064/5 1080/3 1081/3 1085/3 disagreed [5] 883/4 963/22 964/6 1045/20 1052/7 disagreements [1] 1052/2 disagrees [1] 965/7 disbarred [1] 1031/3 disclose [4] 796/9 814/20 819/4 819/18 disclosed [3] 796/19 850/14 1031/2 disclosure [1] 819/2 discount [1] 930/4 discovery [2] 817/4 938/15 discuss [12] 789/14 795/7 795/24 863/2 917/8 920/14 1022/10 1023/3 1028/20 1031/5 1031/14 1034/20 discussed [32] 789/21 793/11 795/21 796/15 796/16 801/3 822/22 908/20 908/24 909/1 944/16 960/19 960/20 960/23 960/24 980/3 980/5 1003/18 1012/12 1013/1 1024/9 1028/8 1028/12 1029/19 1030/8 1030/10 1030/19 1035/10 1036/16 1043/7 1084/11 1087/6 discusses [1] 1023/2 discussing [12] 795/18 801/18 858/22 858/24 859/2 909/5 921/12 1004/1 1029/2 1029/8 1029/17 1047/2 discussion [31] 797/19 843/18 873/5 894/10 896/18 902/14 922/22 923/1 923/6 931/2 931/3 932/5 944/8 945/15 947/3 957/16 958/12 959/3 970/21 978/9 980/24 1002/3 1032/1 1044/10 1056/14 1059/5 1066/6 1067/7 1068/16 1071/14 1081/15 discussions [22] 793/16 802/11 803/6 829/14 842/1 842/6 842/21 846/18 875/14 876/3 895/13 896/24 897/3 897/9 904/24 969/11 971/6 1025/20 1029/24 1052/24 1072/2 1072/5 dishonest [3] 846/9 (85) delay... - dishonest D dishonest... [2] 1018/8 1085/5 disingenuous [1] 1029/5 disinterested [4] 789/16 792/12 792/21 976/21 disloyal [1] 902/21 dismissal [2] 855/19 1048/1 dispute [4] 942/21 942/24 943/8 1065/18 disputes [2] 942/3 942/9 dissect [1] 1025/12 dissertation [2] 826/14 826/19 distracted [1] 1025/14 distributed [1] 830/20 distributions [7] 790/21 792/1 792/2 823/19 830/4 857/22 945/7 dive [1] 788/10 diversed [1] 790/3 divided [1] 935/21 division [1] 935/14 doable [2] 1060/12 1061/17 documents [21] 797/15 798/7 813/1 873/8 927/1 946/22 947/24 948/1 971/11 971/11 971/14 973/22 973/24 974/20 975/7 981/23 990/17 992/23 1052/6 1059/4 1066/12 does [24] 790/8 792/4 802/19 815/11 829/16 831/15 886/6 889/7 926/20 939/15 951/2 971/23 972/8 977/21 979/6 985/14 985/16 996/22 1003/21 1029/15 1032/20 1053/12 1058/23 1069/7 doesn't [18] 800/19 824/13 825/2 900/20 908/14 908/18 923/11 939/10 948/10 956/9 959/21 970/8 972/5 983/18 987/10 1062/9 1082/6 1086/18 dog [1] 951/5 doing [36] 797/4 804/4 804/5 804/9 804/12 811/20 812/23 819/16 822/18 835/1 835/17 837/24 839/21 842/10 846/8 847/23 849/2 852/12 852/15 854/1 854/1 861/2 878/14 878/22 879/10 887/13 916/20 919/14 922/2 972/15 979/8 999/12 1019/4 1019/10 1052/24 1053/3 dollars [2] 891/5 950/10 don't [178] 790/4 790/15 798/12 799/19 805/5 808/13 814/24 815/13 815/14 822/8 823/6 824/15 835/9 840/6 842/14 845/4 848/9 854/5 857/23 859/11 859/15 860/14 861/7 861/13 861/18 865/8 866/9 867/2 867/4 867/12 869/7 869/21 870/18 877/9 881/7 882/5 882/7 887/12 891/3 891/9 891/24 892/5 894/14 895/14 896/15 900/10 900/11 900/14 902/13 903/2 903/13 909/2 913/18 918/17 919/10 923/3 923/11 925/8 926/23 926/23 929/7 931/20 934/7 934/22 937/8 937/22 938/2 938/8 938/9 938/12 940/6 944/16 956/8 958/20 958/21 962/1 962/3 963/15 964/8 964/9 966/11 967/24 968/9 969/15 969/23 970/1 970/9 971/8 971/9 972/22 973/11 976/12 977/9 979/12 979/22 980/4 980/5 981/10 983/1 984/6 984/13 984/16 985/2 987/24 989/15 990/13 991/15 992/16 994/7 996/24 998/2 1001/2 1001/6 1005/12 1006/21 1009/16 1010/18 1011/5 1012/13 1012/23 1014/7 1014/14 1015/17 1016/13 1016/13 1019/21 1020/10 1022/17 1023/6 1025/14 1031/8 1032/3 1032/17 1037/21 1037/23 1040/14 1041/19 1041/22 1041/24 1042/17 1045/22 1048/18 1050/16 1052/21 1057/16 1057/22 1058/3 1059/22 1060/6 1062/14 1063/6 1067/9 1068/3 1071/1 1071/6 1073/1 1073/12 1073/19 1073/22 1073/23 1074/15 1075/6 1075/16 1079/9 1079/23 1080/21 1080/22 1080/24 1081/19 1082/17 1082/20 1085/1 1085/1 1085/2 1085/9 1085/10 1085/18 1085/21 done [24] 800/24 823/16 826/12 835/14 850/3 855/4 855/22 865/10 916/23 934/1 935/16 935/20 936/2 936/24 959/5 1008/2 1020/20 1021/10 1021/10 1021/24 1034/5 1049/6 1061/7 1061/11 Donna [1] 1009/3 doubt [11] 810/4 865/8 878/3 892/9 998/4 998/6 1040/11 1045/22 1081/4 1084/15 1084/18 down [81] 794/23 794/24 795/3 795/3 803/19 805/9 806/10 806/16 806/18 806/19 808/20 821/17 829/20 830/7 830/18 834/12 840/12 841/22 844/9 845/3 846/6 846/7 849/23 863/9 870/6 872/18 875/1 877/11 880/7 880/17 885/7 885/10 885/24 889/22 896/4 916/9 917/20 919/22 920/10 921/15 922/11 928/2 928/3 949/24 950/1 951/11 968/14 977/6 978/17 978/21 979/2 979/4 979/5 980/2 981/7 982/6 986/7 991/21 992/20 1011/12 1011/13 1011/19 1017/16 1022/11 1031/7 1031/15 1033/12 1036/11 1037/11 1041/13 1054/13 1064/3 1065/1 1065/15 1067/10 1076/15 1077/3 1077/19 1079/17 1083/19 1084/9 dozen [1] 789/2 draft [8] 826/24 828/18 873/13 944/12 946/4 950/5 952/12 953/2 drafting [1] 799/13 drag [20] 1044/19 1071/15 1071/19 1072/4 1072/8 1072/19 1072/19 1072/22 1073/2 1073/4 1073/5 1073/21 1073/23 1074/6 1074/22 1074/23 1075/7 1075/8 1075/8 1075/11 drag-along [3] 1044/19 1071/19 1073/23 dragged [1] 1060/9 dragging [1] 890/13 dramatic [1] 997/2 dramatically [2] 795/3 795/4 draw [5] 799/17 802/24 816/14 851/22 962/18 drawing [3] 800/17 805/17 828/22 dream [2] 810/5 810/8 drive [2] 837/6 902/12 drone [1] 977/4 dropped [1] 934/12 due [2] 872/6 1028/14 dueling [1] 939/20 duly [1] 788/1 during [5] 819/13 832/1 832/20 844/15 997/16 duty [1] 794/9 dynamic [1] 845/5 999/14 999/14 1043/18 1059/9 each [9] 790/21 791/6 791/7 872/9 935/21 957/20 1001/21 1016/1 1017/12 earlier [24] 813/9 819/1 820/5 830/12 833/6 839/1 839/3 841/6 851/7 851/18 867/23 874/8 876/21 885/8 901/24 905/24 905/24 925/18 937/17 968/7 972/16 1013/5 1032/12 1038/4 early [5] 806/6 906/4 909/6 994/22 998/13 earth [2] 974/5 974/6 easier [3] 962/15 967/13 1053/22 easily [3] 924/19 983/4 992/19 edited [5] 868/14 868/23 869/22 869/22 869/24 effect [4] 1022/21 E 1022/23 1040/24 e-mail [100] 790/6 1040/24 790/6 790/18 791/4 effects [2] 908/2 791/16 791/16 799/6 951/14 799/12 800/15 800/18 efficiency [1] 937/18 801/2 801/14 801/20 efficient [1] 826/18 808/14 808/19 813/20 efficiently [1] 1085/13 813/23 813/24 814/3 effort [3] 842/22 815/5 815/21 816/5 844/12 874/24 816/13 816/15 817/18 egregious [1] 1047/24 822/8 822/9 824/12 either [18] 796/6 825/10 825/24 826/22 804/18 857/20 866/21 826/24 827/9 827/13 867/3 906/4 938/6 828/13 828/14 851/14 971/11 972/4 993/9 851/23 852/20 853/10 996/21 1004/19 862/9 862/21 862/23 1021/18 1050/20 866/17 867/2 867/5 1061/13 1081/23 867/9 867/11 867/22 1084/18 1087/8 868/16 868/17 869/10 EJ [2] 1011/14 1011/22 873/18 881/8 881/20 elected [1] 795/6 883/3 883/3 884/10 eleven [1] 804/23 885/8 887/18 887/21 eliminate [1] 1055/14 891/3 891/21 896/9 ELISABETH [1] 787/9 898/8 900/8 900/12 ELIZABETH [1] 786/6 900/14 900/15 900/21 Elliott [1] 787/20 900/22 900/24 903/7 ELSBERG [2] 787/3 911/21 914/2 919/3 1001/12 925/20 925/23 926/2 else [21] 805/4 814/20 944/5 945/23 948/13 824/20 845/16 869/22 952/10 975/3 985/8 870/2 888/17 899/16 990/5 1024/21 1025/14 926/12 939/15 960/14 1028/5 1036/3 1038/5 965/17 978/23 984/7 1044/5 1053/14 1055/8 996/1 1005/22 1021/12 1056/20 1057/19 1054/2 1061/6 1075/2 1068/1 1068/9 1075/23 1075/13 1076/2 email [4] 799/13 e-mailing [1] 852/21 898/16 950/5 1052/7 e-mails [11] 804/12 emails [1] 1052/6 824/21 853/16 893/12 Emanuel [1] 787/5 893/17 909/22 999/13 emerge [1] 1079/7 CHANCERY COURT REPORTERS (86) dishonest... - emerge E emerged [1] 931/1 emerging [1] 1077/14 emotion [1] 1065/9 employ [1] 1080/4 employed [1] 1031/10 employee [2] 833/4 999/11 enable [1] 830/23 encountering [1] 988/13 end [14] 837/11 918/2 934/1 935/17 937/8 938/7 941/16 943/20 951/4 1002/14 1004/21 1022/6 1078/16 1085/12 ended [1] 841/5 ending [9] 877/4 915/1 917/16 924/8 952/14 964/24 983/9 1064/22 1083/12 ends [2] 894/4 1009/18 energy [1] 806/18 engage [4] 796/23 797/11 806/24 807/5 engaged [6] 796/20 800/20 813/11 842/16 986/11 987/15 engagement [21] 801/10 807/1 807/6 807/8 807/21 808/3 808/11 808/17 926/17 927/11 927/16 927/22 929/12 929/15 929/16 930/22 931/14 942/4 942/17 943/7 1025/10 engaging [4] 795/7 795/19 806/21 1065/19 engineer [1] 830/6 enough [13] 800/19 800/20 838/3 893/18 895/16 906/2 985/1 985/5 985/11 995/21 999/22 1087/12 1087/14 ensued [2] 957/16 1002/3 ensure [2] 822/12 910/21 entangled [1] 845/22 entered [1] 908/18 enterprise [2] 912/13 957/18 entertain [1] 834/19 entire [4] 817/14 822/9 1039/4 1067/7 entirely [3] 999/16 999/17 1024/4 entirety [1] 892/23 entities [1] 1071/10 entitled [3] 877/5 1063/11 1079/1 entity [1] 1072/9 entries [2] 977/6 1011/12 entry [6] 924/9 961/21 Evans [3] 815/10 962/10 983/12 983/14 815/12 815/13 1034/3 even [38] 803/8 803/9 enumerated [2] 799/18 803/9 803/12 803/14 807/18 813/16 817/15 809/4 equal [15] 857/2 859/7 824/16 824/16 834/17 866/19 900/16 904/12 840/20 841/11 841/12 846/15 857/17 859/19 904/12 905/4 907/23 871/1 907/13 908/20 923/1 971/18 972/6 943/7 968/16 969/6 973/9 973/18 975/1 969/23 979/24 996/19 1001/22 1035/1 1039/15 equally [3] 823/19 1039/16 1047/4 823/20 935/22 1059/21 1062/9 equals [2] 962/20 1063/20 1065/21 963/14 1072/8 1074/2 1074/7 equity [11] 804/23 1086/6 834/12 863/3 877/22 877/24 912/11 957/18 evening [4] 818/11 945/23 975/8 1087/15 957/18 957/19 958/5 991/1 event [7] 815/23 819/3 Eric [31] 787/11 787/15 857/9 878/11 907/5 907/13 1051/8 800/5 804/5 805/8 834/21 837/1 838/6 eventually [4] 796/17 831/18 841/11 843/16 838/7 840/20 840/24 841/1 841/7 842/8 Evercore [1] 979/9 842/11 843/5 843/10 everybody [12] 811/17 811/22 811/22 830/1 843/11 843/21 944/6 830/2 856/2 856/3 946/5 955/1 992/14 1013/2 1013/8 1013/19 937/16 938/24 947/20 1018/6 1018/13 1022/9 1051/2 1087/2 1023/14 1069/4 everybody's [2] 874/14 1037/6 Eric's [2] 837/10 840/11 everyone [26] 788/3 859/22 867/1 871/20 Erik [7] 838/22 839/5 839/16 840/18 840/19 885/15 885/21 891/6 897/12 898/1 943/12 841/8 841/12 946/22 963/8 966/9 Erik's [1] 839/12 966/20 971/4 980/1 ERISA [1] 787/6 981/13 1003/19 especially [4] 841/18 944/14 951/16 1069/1 1003/21 1004/5 ESQ [34] 786/2 786/2 1042/18 1059/7 1067/2 1075/2 1081/17 786/3 786/4 786/5 1087/16 786/5 786/6 786/6 786/9 786/9 786/11 everyone's [1] 817/16 786/11 786/15 786/16 everything [4] 807/11 820/18 843/10 1061/6 786/17 786/18 787/2 787/2 787/3 787/3 evidence [2] 1000/6 1078/3 787/4 787/4 787/9 787/9 787/10 787/10 evidenced [1] 1044/17 787/13 787/13 787/16 evolved [1] 1027/13 787/16 787/17 787/19 exact [5] 861/2 865/7 905/23 931/3 981/23 787/21 787/21 exactly [5] 853/22 establish [2] 888/6 891/11 1004/10 1061/16 1012/11 1085/21 established [1] 1044/17 Exaggerating [1] 959/20 estimate [1] 874/15 estimated [2] 912/24 examination [3] 788/6 856/7 972/16 918/4 exceeded [2] 1006/22 et [2] 795/23 802/18 1006/23 et cetera [2] 795/23 802/18 except [6] 820/18 975/4 1045/16 1051/3 Ethel [1] 834/10 1067/20 1067/22 Europe [1] 806/13 exception [4] 812/5 evaluate [1] 897/23 823/13 857/12 857/14 evaluation [1] 979/9 exceptions [1] 812/6 exchanges [1] 950/5 excited [1] 995/2 excluded [1] 976/10 exclusivity [1] 870/9 excuse [16] 798/1 826/16 858/2 870/19 884/3 893/22 948/21 949/9 963/13 984/17 1012/4 1014/8 1024/17 1080/12 1081/8 1081/23 executed [2] 810/23 820/5 executive [4] 839/23 844/1 848/17 990/10 executives [2] 1018/22 1075/13 exercise [4] 929/15 1033/13 1033/18 1034/18 exercised [5] 788/14 788/17 795/5 842/18 1056/18 exercising [1] 1063/17 exhibit [15] 790/5 801/11 801/12 817/17 818/4 818/7 827/6 860/2 860/12 876/10 887/1 941/7 1001/12 1002/17 1082/19 exhibits [2] 798/3 828/11 exit [103] 790/24 795/6 797/12 807/6 807/22 810/24 811/7 819/15 820/1 828/24 829/2 829/9 829/17 829/21 829/22 830/4 830/14 830/20 830/23 857/8 858/20 883/7 885/20 885/21 888/20 889/14 891/7 907/15 908/16 923/7 925/7 927/11 927/22 928/24 929/8 929/17 930/24 942/23 943/9 944/16 946/7 946/16 947/4 951/5 953/5 955/18 960/17 966/15 966/21 977/7 977/20 979/24 988/1 988/13 989/11 993/7 993/8 996/17 998/5 1006/17 1029/13 1029/15 1036/8 1037/24 1041/20 1041/21 1042/13 1042/18 1043/10 1044/22 1048/9 1054/22 1055/11 1055/14 1057/5 1057/24 1058/21 1058/23 1058/24 1059/7 1059/8 1061/20 1061/23 1066/14 1067/1 1067/12 1069/6 CHANCERY COURT REPORTERS 1069/11 1070/13 1071/8 1072/4 1076/7 1076/19 1076/21 1077/7 1078/15 1078/21 1079/5 1081/16 1082/9 1084/7 1085/17 1085/19 exited [1] 949/20 expect [3] 803/2 873/12 933/24 expectations [1] 1044/16 expected [3] 916/18 916/22 990/5 expecting [3] 1087/3 1087/4 1087/5 expense [2] 879/23 916/4 expense-related [1] 916/4 expenses [7] 849/22 863/12 870/15 870/22 875/23 914/6 920/1 experience [2] 835/13 989/4 experienced [1] 988/14 expert [1] 937/20 experts [2] 937/19 937/22 explain [1] 928/15 explained [1] 864/21 explanation [1] 982/5 Explore [1] 1071/15 explosive [2] 1036/11 1037/10 exporting [1] 806/12 expressed [5] 814/17 984/4 1046/3 1051/15 1051/21 expressing [2] 830/9 901/17 expression [1] 907/15 extend [1] 1006/22 extensively [1] 874/11 extent [1] 982/21 External [1] 851/24 extra [5] 811/8 830/13 929/1 932/2 953/5 extreme [6] 986/13 987/6 987/8 987/8 987/11 1004/12 extremely [5] 840/23 930/18 1016/16 1018/8 1048/22 eyes [1] 879/17 F face [6] 808/19 821/4 821/6 863/12 871/4 1079/21 faces [1] 1065/8 facilitate [1] 1033/6 facilitator [1] 874/7 facilities [1] 835/23 facing [1] 1077/13 (87) emerged - facing F fact [62] 795/3 806/11 806/17 856/24 858/24 864/20 868/14 869/9 875/6 878/5 879/1 889/11 890/10 900/7 901/9 913/24 922/10 930/24 937/1 940/24 947/2 947/14 955/16 959/8 960/20 963/22 964/5 969/16 973/13 980/3 981/24 984/2 989/9 990/8 992/9 992/18 993/9 996/6 1005/4 1013/4 1021/9 1022/19 1023/2 1026/1 1028/20 1032/22 1038/16 1039/4 1039/15 1050/3 1055/23 1057/20 1060/17 1077/5 1080/18 1081/2 1081/22 1083/11 1084/19 1084/22 1086/5 1086/17 facts [2] 792/15 1060/10 factual [1] 969/13 fails [1] 908/9 fair [37] 802/19 809/19 821/4 821/24 829/24 863/21 863/23 873/20 878/19 885/11 893/18 895/16 895/18 898/19 899/23 906/2 920/10 930/3 937/16 942/5 942/11 942/18 942/20 950/18 961/2 969/17 974/14 995/21 996/24 1035/22 1070/7 1070/12 1070/19 1074/7 1078/3 1087/12 1087/14 fairly [4] 818/18 882/19 963/19 964/19 fait [1] 801/23 Falcon [1] 849/4 fall [10] 842/17 905/20 905/24 906/1 1035/23 1045/2 1045/3 1064/12 1064/14 1064/18 false [1] 1005/11 familiar [1] 815/11 family [4] 834/10 1072/23 1075/12 1080/7 fan [1] 1009/4 fanatic [2] 859/11 904/11 fanaticism [3] 857/2 859/6 859/9 Fantastic [1] 855/21 far [8] 796/21 812/1 845/9 885/10 903/3 971/15 1007/2 1024/7 farther [1] 901/22 fast [1] 841/6 fast-forward [1] 841/6 faster [1] 1041/9 fastest [2] 872/16 876/15 fault [2] 970/16 995/4 favor [3] 794/4 844/10 1035/6 feasible [1] 899/11 February [15] 801/15 806/20 807/21 808/15 813/3 813/5 819/12 838/17 930/14 931/9 954/6 954/13 995/14 998/16 1060/14 February 1 [2] 819/12 998/16 February 10 [1] 801/15 February 10th [1] 806/20 February 12 [2] 954/6 954/13 February 2016 [2] 813/3 813/5 February 23 [1] 808/15 February/March [2] 807/21 930/14 fee [11] 808/23 810/12 810/24 852/14 880/6 926/6 926/9 926/13 928/6 928/12 955/7 feedback [2] 801/22 937/9 feel [4] 799/20 815/17 840/15 842/12 fees [5] 795/22 821/21 821/22 821/22 912/24 feet [1] 890/13 fellow [2] 833/19 1080/18 felt [3] 794/6 844/11 1016/10 Ferraris [1] 838/4 Ferris [1] 786/7 few [27] 789/5 799/14 833/5 837/24 842/6 844/16 856/12 862/22 878/16 881/21 882/24 887/19 893/8 906/24 987/22 994/2 1011/13 1014/12 1016/15 1024/24 1025/3 1037/11 1039/23 1043/16 1059/17 1064/21 1079/12 fide [3] 1031/9 1031/11 1031/12 fiduciary [2] 834/17 834/19 field [2] 838/12 838/12 fifth [1] 880/8 fight [3] 851/3 974/12 1025/13 figure [4] 808/9 939/9 951/6 1069/8 figuring [1] 953/20 file [8] 831/22 832/4 832/14 890/2 1011/23 1013/3 1013/6 1013/23 filed [6] 855/19 943/17 1012/8 1013/9 1014/12 1086/10 final [7] 830/18 831/9 831/13 836/8 913/13 949/18 953/9 finally [5] 828/23 831/22 835/7 914/19 1078/9 finance [1] 835/11 financial [4] 802/14 804/21 835/15 942/19 financing [14] 804/21 807/3 820/6 838/9 842/22 843/20 844/12 854/14 909/12 926/14 926/20 943/3 955/1 1069/9 find [22] 797/22 814/11 836/24 860/12 884/3 910/11 916/3 921/18 929/20 943/10 943/11 967/15 1000/18 1035/7 1035/8 1035/15 1035/16 1044/12 1048/20 1049/1 1054/1 1078/18 finder's [1] 821/22 finding [3] 800/12 926/7 962/12 fine [2] 938/2 955/1 Finger [1] 786/18 finish [8] 933/23 1005/17 1005/20 1019/6 1047/10 1058/6 1062/15 1087/4 finished [1] 788/12 fire [7] 845/19 998/17 998/20 1005/6 1011/22 1013/2 1013/18 fired 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982/9 990/18 990/20 889/4 891/10 906/21 994/24 997/14 997/15 923/4 925/10 940/13 997/23 1000/18 1008/8 975/5 976/12 994/16 1009/8 1010/16 1010/16 1030/3 1010/19 1010/22 1030/11 1031/3 1010/24 1011/2 1035/12 1067/21 1011/13 1012/22 1073/11 1074/11 1013/12 1013/13 1075/18 1081/21 1013/15 1014/4 1016/2 1081/23 1085/7 1016/3 1022/5 1030/13 I'll [40] 793/3 794/7 1030/18 1031/8 808/3 808/21 828/19 1031/19 1033/1 841/10 841/15 855/5 1040/20 1047/11 862/15 862/17 872/19 1047/13 1047/19 893/19 913/21 937/10 1050/23 1050/24 953/14 953/17 956/20 1050/24 1051/7 959/22 970/17 972/12 1052/21 1054/1 1054/1 972/15 975/6 975/8 1058/10 1058/11 982/8 984/12 990/14 1063/7 1066/8 1069/15 1014/2 1019/18 1070/22 1076/11 1019/19 1028/11 1081/11 1082/18 1029/6 1043/22 1083/4 1083/9 1085/21 1048/11 1062/14 1085/23 1087/3 1087/4 1062/21 1063/5 I've [28] 789/1 791/14 1074/12 1075/15 818/24 862/15 882/14 1076/17 1079/8 889/24 902/7 904/9 I'm [174] 791/6 792/23 904/16 911/22 919/12 794/6 797/18 798/15 951/20 952/10 955/9 CHANCERY COURT REPORTERS (90) heard... - I've include [2] 799/16 918/5 I've... [14] 964/18 included [1] 976/8 965/24 971/22 975/8 910/2 includes [6] 983/24 1010/20 913/6 917/21 918/3 1015/16 1022/20 946/5 1069/2 1030/3 1038/20 1040/5 including [11] 819/15 1054/16 1056/1 1062/5 830/3 895/7 916/13 i.e [2] 1054/21 1054/21 946/6 957/9 971/11 ICEC [1] 962/20 992/7 1003/18 1072/22 ICIC [1] 963/14 1077/5 idea [21] 818/15 incompetence [2] 819/13 819/16 826/21 845/12 845/14 831/5 834/2 838/1 inconsistent [2] 804/6 841/3 852/16 869/8 811/16 938/24 951/4 953/23 incorporate [1] 971/17 1007/21 1045/12 1027/12 1038/17 incorporating [1] 1054/19 1055/11 944/17 1057/19 1072/7 incorporation [1] idea on [1] 838/1 996/8 ideal [1] 1054/20 incorrect [4] 881/10 ideas [2] 838/1 996/7 913/6 977/12 1031/18 identified [5] 880/24 increase [1] 944/19 934/11 934/16 935/5 increased [1] 836/15 1042/15 increases [3] 808/24 820/24 identifies [1] 928/6 1071/9 identify [4] 874/9 898/7 indebtedness [2] 908/4 948/6 1040/18 1042/5 identifying [1] 875/8 independent [4] 999/7 Ignore [1] 1070/4 1046/24 1048/7 1073/3 ignored [1] 807/17 INDEX [1] 1088/1 iii [1] 1070/5 834/15 India [1] immediately [7] 807/18 985/14 indicate [2] 941/21 951/6 1005/6 1000/12 1025/22 1026/4 indicated [3] 933/12 1033/12 1000/15 1002/5 immersed [1] 893/1 indicates [1] 985/17 impact [1] 918/3 indication [2] 912/13 impacted [2] 844/19 960/4 952/1 indications [1] 789/6 impediment [1] individual [1] 838/22 1066/13 individuals [3] 825/15 implicitly [1] 950/24 825/16 1020/3 implied [6] 871/6 Industries [1] 835/16 880/20 885/3 912/12 inferred [1] 1020/9 950/23 957/18 information [24] important [5] 792/10 790/17 792/13 820/12 868/7 868/9 1001/20 820/15 840/3 846/12 1007/22 917/15 957/23 958/7 importing [2] 806/11 960/1 988/23 989/5 806/12 989/13 989/20 990/5 impossible [1] 803/2 990/11 990/24 991/3 improprieties [1] 999/6 991/5 991/10 991/13 impropriety [1] 999/10 991/24 992/7 992/15 improve [2] 806/8 informed [1] 1034/13 807/12 Ingraham [20] 786/13 improved [1] 957/23 792/8 822/20 856/13 in [696] 857/19 859/23 866/7 in-house [3] 910/4 866/14 903/10 955/7 910/10 1053/10 962/20 963/4 963/14 inaccurate [1] 873/15 978/2 978/5 978/10 Inc [2] 786/13 817/22 979/19 1066/7 1072/9 incentive [1] 810/12 1072/14 incentivize [2] 809/10 Ingraham/ICEC [1] 928/17 962/20 inclination [1] 940/7 I Ingraham/ICIC [1] 963/14 initial [5] 898/17 899/21 937/15 1016/6 1068/24 initially [3] 935/11 935/12 953/3 initiated [2] 831/18 888/7 input [1] 912/23 ins [1] 1073/22 insinuation [1] 844/18 insisted [1] 992/8 instead [2] 816/19 1068/4 instruct [1] 930/21 instructed [8] 990/9 991/12 1005/5 1013/23 1018/2 1032/12 1082/13 1085/16 instructing [1] 1032/17 instruction [5] 817/12 960/8 989/14 992/9 1007/7 instructions [3] 979/6 1007/16 1032/9 intact [1] 968/23 intended [11] 809/3 883/18 887/24 928/9 971/16 974/24 983/1 1045/12 1073/17 1074/22 1075/6 intending [1] 828/4 intent [15] 815/17 816/1 817/21 862/13 862/18 878/15 880/1 898/18 907/7 908/15 959/12 960/3 960/5 960/10 1034/17 intention [2] 866/12 1041/14 intentioned [1] 978/12 intently [1] 1060/18 interaction [1] 833/17 interactions [1] 833/23 interest [17] 789/6 793/21 794/10 797/3 797/7 800/22 805/5 814/18 872/6 901/12 907/15 912/14 930/1 938/1 938/14 945/8 960/4 interested [4] 794/18 795/11 805/1 872/1 interesting [11] 810/9 834/9 848/11 915/18 945/3 985/1 1054/18 1055/5 1055/9 1059/15 1069/2 interests [4] 830/21 901/3 1011/2 1011/3 internal [3] 812/10 812/16 1038/13 internally [1] 1039/12 interpretation [13] 889/11 925/6 941/13 951/19 963/4 963/23 964/7 965/7 965/13 966/2 966/8 966/9 966/19 interpretations [2] 942/10 951/17 interpreted [1] 890/14 interrupt [1] 797/18 interrupted [1] 990/21 interrupting [1] 1081/8 interviewing [1] 838/21 introduction [1] 819/5 invalidate [1] 1061/12 inverlocky [1] 813/23 investigate [1] 821/7 investigated [1] 845/24 investigating [1] 999/6 investment [21] 786/14 792/8 792/9 795/7 796/5 796/10 796/23 806/2 821/21 834/7 835/23 836/2 838/10 847/11 871/15 930/10 930/11 955/6 1071/21 1072/21 1073/6 investments [6] 786/13 811/10 828/3 866/2 929/2 1044/18 investor [5] 843/3 1036/9 1036/17 1054/21 1056/1 investors [5] 788/24 992/12 1044/16 1063/14 1065/12 invited [3] 840/20 841/2 1000/24 invoke [2] 1028/13 1084/6 involuntary [1] 1078/17 involved [12] 807/22 846/17 864/12 864/15 864/15 874/9 874/10 874/11 894/23 1012/23 1072/1 1072/2 ironed [1] 959/14 irritated [1] 918/22 is [343] isn't [27] 815/21 859/7 869/9 879/1 889/10 896/14 900/7 901/9 906/18 908/21 911/11 940/24 947/2 955/16 964/5 965/9 965/18 973/18 981/17 981/24 1012/15 1013/7 1031/16 1059/10 1073/12 1077/15 1084/19 issue [40] 803/7 821/8 824/18 824/18 824/19 824/19 826/5 826/6 848/2 851/7 853/14 CHANCERY COURT REPORTERS 859/19 859/21 879/7 889/23 890/23 890/24 929/10 931/4 932/2 942/14 943/11 953/4 986/12 987/14 987/17 993/18 993/20 997/8 997/22 1000/14 1002/5 1007/22 1030/24 1038/8 1038/10 1049/2 1067/6 1086/18 1087/6 issued [1] 959/10 issuers [1] 1044/16 issues [14] 826/4 826/7 890/6 893/2 893/11 893/13 893/15 942/5 994/5 996/14 1008/6 1023/5 1045/13 1065/10 item [3] 955/5 962/18 1033/11 itself [3] 987/11 991/9 1046/9 IV [1] 785/18 J JACLYN [1] 786/9 JAMES [1] 787/10 January [27] 788/20 789/9 790/7 792/20 793/4 793/12 799/8 799/9 838/17 841/22 856/21 866/24 897/11 931/12 1060/14 1062/11 1062/24 1063/3 1063/8 1063/16 1068/2 1072/1 1075/24 1077/11 1079/13 1083/7 1086/7 January 18 [1] 790/7 January 19th [4] 792/20 793/4 793/12 799/9 January 2015 [1] 841/22 January 2016 [1] 788/20 January 22 [1] 799/8 JENNIFER [2] 787/2 787/13 Jim [11] 812/21 821/11 823/10 834/23 876/16 881/9 882/9 883/17 911/12 921/20 921/22 job [16] 836/16 837/10 837/11 839/22 841/12 843/1 845/17 849/2 937/6 994/10 994/11 994/13 1001/8 1007/1 1007/8 1007/9 jobs [1] 847/16 Joe [1] 955/1 John [3] 814/1 851/24 851/24 John-External [1] 851/24 JOHNSON [47] 787/3 (91) I've... - JOHNSON J JOHNSON... [46] 787/11 787/15 799/6 799/11 800/1 800/17 800/18 801/5 833/2 833/7 833/24 834/1 835/9 836/13 837/1 838/13 839/7 840/20 840/24 841/1 841/6 841/7 842/12 843/5 844/10 852/22 855/15 1010/11 1012/3 1012/5 1013/2 1013/9 1013/18 1013/19 1013/22 1015/9 1017/2 1018/6 1018/13 1020/1 1022/9 1022/14 1022/19 1023/3 1063/11 1084/21 Johnson's [3] 835/10 841/21 1023/4 JOHNSTON [1] 786/6 joining [2] 1002/1 1003/1 Joint [2] 801/12 827/6 Jones [1] 787/20 JOSHUA [1] 787/16 JR [2] 787/10 787/21 Judge [1] 969/21 judgment [3] 890/2 1052/13 1086/14 Juli [1] 872/9 July [9] 785/12 1024/22 1027/13 1027/17 1027/23 1032/12 1033/10 1034/2 1038/5 jump [1] 890/20 jumped [1] 980/10 jumping [1] 917/1 June [10] 831/19 831/22 864/22 935/1 943/16 1012/6 1012/8 1013/4 1013/8 1013/20 June 10 [1] 831/19 June 10th [1] 831/22 June 20 [1] 935/1 Justice [2] 785/11 785/22 justify [1] 812/23 JX [30] 790/5 791/12 798/9 800/8 800/15 808/14 813/19 815/3 816/4 816/7 816/12 818/23 822/6 825/8 828/10 851/9 860/19 892/10 952/17 966/6 983/5 983/7 1000/9 1024/12 1024/17 1054/3 1082/19 1082/20 1082/22 1083/2 JX 1160 [1] 1024/12 K Karin [1] 840/10 KC [1] 817/17 keep [9] 840/4 841/21 849/23 874/14 892/3 897/15 916/9 938/9 1075/15 keeping [1] 955/23 keeps [1] 849/10 Kelly [26] 808/14 808/22 811/19 893/7 925/17 925/21 925/23 926/5 927/7 927/20 927/24 928/11 929/6 948/13 948/14 948/17 950/4 954/24 1030/7 1030/19 1034/20 1075/23 1076/2 1077/17 1078/6 1078/24 Kelly's [2] 952/5 953/20 Ken [6] 894/21 894/22 895/1 896/5 896/18 976/19 Kennedy's [1] 834/11 KENNETH [1] 786/2 kept [3] 956/1 1031/1 1034/12 KEVIN [5] 786/15 813/20 816/16 1012/22 1014/9 key [1] 828/7 kicking [1] 1036/11 kill [7] 847/22 1011/15 1011/22 1013/2 1013/17 1013/21 1013/24 killed [4] 796/24 1014/1 1014/1 1014/3 killing [2] 804/21 1015/5 kiln [1] 837/5 kind [11] 796/18 820/15 834/6 841/3 841/20 881/8 941/11 941/14 947/5 1021/17 1041/20 King [4] 785/11 785/23 793/5 849/3 Kissel [1] 787/22 knew [28] 796/3 811/16 826/18 831/24 832/13 843/13 850/19 857/20 863/5 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1023/19 1024/5 1028/7 1031/4 1032/11 1032/23 1033/6 1033/11 1034/3 1034/23 1041/4 1042/19 1043/21 1047/12 1049/7 1049/16 1050/12 1051/15 1051/22 1052/2 1052/8 1053/7 1053/20 1053/21 1055/17 1055/21 1060/5 1066/16 1077/16 1078/9 1080/11 1081/14 1084/19 1085/17 1087/4 1088/3 Koch's [1] 881/20 Kuwait [2] 836/1 836/2 L L Gates [1] 1046/9 L.L.C [1] 787/7 L.P [2] 787/7 787/7 lack [1] 1065/11 laden [1] 1065/9 Lakes [3] 834/2 834/8 836/15 language [17] 802/1 809/12 809/15 811/11 811/14 822/15 824/10 827/18 829/18 870/5 881/17 881/20 953/10 1038/6 1069/16 1069/21 1074/18 last [13] 847/8 906/24 911/6 934/21 1001/18 1002/16 1044/9 1077/3 1077/19 1078/5 1078/6 1078/12 1083/10 lasted [1] 1060/8 LASTER [1] 785/15 lastly [1] 830/3 late [5] 801/22 806/24 906/4 1002/1 1003/1 late-joining [2] 1002/1 1003/1 later [19] 797/23 814/10 854/8 867/10 878/17 881/21 884/11 911/16 911/17 931/6 931/14 938/21 945/23 964/22 976/9 1017/7 1025/13 1040/20 1075/12 later-added [1] 1075/12 laughing [1] 1048/18 launch [1] 802/9 law [4] 1046/24 1048/7 1064/19 1064/20 laws [1] 1018/3 lawsuit [17] 794/2 831/22 832/1 832/4 832/14 846/3 1011/23 1012/8 1013/3 1013/9 1013/23 1014/12 1085/20 1086/2 1086/6 1086/9 1086/11 lawyer [20] 867/7 884/15 887/22 893/5 906/10 908/3 909/23 910/4 910/10 911/14 944/5 978/14 993/20 1006/2 1007/20 1012/23 1053/10 1073/15 1079/2 1079/3 lawyerly [1] 938/10 lawyers [55] 824/17 836/10 859/1 864/21 874/13 874/16 874/18 874/23 906/5 907/12 908/20 910/17 911/3 911/10 913/11 919/4 923/15 942/12 944/7 946/2 946/14 947/19 948/2 953/11 956/1 958/13 973/15 976/21 977/3 978/12 978/21 985/17 985/20 985/21 985/24 988/12 996/8 999/8 1006/4 1013/5 1013/23 1039/6 CHANCERY COURT REPORTERS 1041/11 1042/16 1045/16 1045/19 1048/14 1048/20 1048/24 1053/16 1064/4 1070/1 1072/3 1077/11 1078/1 lawyers' [1] 970/4 lay [1] 835/13 Layton [1] 786/18 lead [7] 795/17 796/9 887/21 936/13 1042/7 1076/7 1079/2 leading [3] 816/17 949/18 1024/1 learned [3] 1008/1 1008/2 1030/3 least [32] 789/2 803/2 811/7 811/9 827/24 828/8 836/5 857/7 857/18 858/17 865/17 887/23 890/11 897/1 897/10 903/7 904/14 928/23 929/2 933/21 935/10 935/12 936/11 942/6 953/12 973/4 988/3 1001/22 1031/24 1060/14 1064/11 1079/3 leave [6] 798/5 847/16 874/16 934/7 941/5 993/9 leave-behinds [1] 993/9 leaving [4] 800/13 909/8 909/9 974/18 lecture [1] 904/19 led [1] 848/10 left-hand [1] 877/12 legal [47] 821/22 824/17 824/19 829/21 846/15 846/19 846/20 857/11 857/13 875/23 897/11 910/11 912/24 914/6 921/12 942/10 942/13 942/14 942/16 975/23 975/24 976/6 976/10 979/2 979/17 995/24 999/7 1005/15 1007/22 1038/13 1039/4 1040/23 1042/8 1042/22 1042/23 1045/15 1045/19 1046/9 1046/12 1047/3 1047/6 1050/17 1051/2 1051/12 1052/13 1064/4 1067/8 legally [5] 999/16 1027/9 1038/6 1044/11 1048/9 length [2] 944/10 1073/15 lengthen [1] 949/17 Leonard [2] 785/11 785/22 LEONE [37] 786/4 862/8 875/5 884/15 (92) JOHNSON... - LEONE 1010/3 1017/5 1019/16 1019/16 1020/6 LEONE... [33] 887/11 1024/11 1025/12 892/21 893/1 893/20 1025/13 1031/22 894/12 894/20 896/1 1033/5 1034/1 1036/23 926/1 944/6 944/10 1041/2 1041/4 1048/20 944/24 945/15 945/24 1053/6 1056/12 952/23 954/24 957/10 1057/18 1059/16 958/13 959/4 965/4 1067/9 1067/11 967/5 967/19 968/12 1067/23 1077/19 971/3 973/4 981/3 1078/5 1079/11 981/4 985/18 986/1 letter [72] 807/1 808/11 988/8 1068/1 1068/10 810/23 814/4 814/8 1068/23 1086/6 814/13 814/22 815/17 LEONE-QUICK [8] 815/20 815/24 816/16 786/4 875/5 884/15 816/18 817/1 817/21 887/11 892/21 893/1 818/2 818/17 818/21 894/12 954/24 820/21 820/22 828/19 Leone-Quick's [2] 831/10 862/13 862/18 862/8 968/12 878/15 880/1 898/17 less [5] 805/10 810/1 899/22 905/11 906/6 829/23 920/4 1063/17 906/8 906/22 906/23 let [61] 791/9 791/17 907/2 907/5 907/6 824/16 831/12 839/13 907/7 908/15 909/10 839/16 845/15 846/4 919/6 919/15 920/14 856/11 872/2 897/14 926/17 927/5 927/22 897/19 898/5 903/18 929/12 929/16 930/22 903/20 912/3 912/17 944/12 944/12 946/9 912/24 919/9 923/9 946/10 948/19 950/6 925/14 930/13 938/5 952/11 952/12 952/22 938/12 939/6 939/7 953/9 953/20 959/12 959/16 963/12 964/3 960/2 960/5 960/9 965/22 967/15 970/12 960/12 961/4 964/9 972/11 989/7 989/17 964/11 964/12 964/19 992/2 993/2 995/6 983/14 983/17 984/4 997/5 1005/17 1006/11 999/1 1009/18 1015/7 letters [3] 808/17 932/3 1018/18 1022/13 953/19 1024/5 1024/14 letting [1] 849/5 1028/11 1030/15 level [4] 845/12 845/14 1032/21 1045/24 926/8 926/10 1046/3 1047/10 leverage [5] 1026/10 1050/12 1051/8 1055/6 1026/23 1027/2 1031/6 1062/3 1072/15 1073/3 1031/15 1081/13 1086/20 Levin [22] 786/7 let's [90] 797/8 801/8 807/22 808/15 812/2 807/11 810/20 813/18 829/13 859/1 864/22 813/18 816/4 818/21 868/24 892/12 893/6 820/20 822/4 825/6 927/21 944/5 946/1 827/14 828/9 828/17 946/14 952/7 952/23 831/12 834/3 849/6 953/10 972/18 973/3 860/7 865/12 869/23 973/5 1025/1 1041/12 873/17 876/9 877/2 Levin's [1] 826/20 878/11 879/6 882/8 786/9 LEVY [1] 886/5 888/1 891/13 787/16 LEWIN [1] 895/22 902/18 903/2 786/2 LI [1] 907/3 908/3 909/16 liability [3] 1025/18 912/3 914/12 915/22 1038/18 1041/1 915/22 919/1 919/13 lie [1] 818/15 921/2 922/11 927/7 lied [2] 817/11 817/14 928/2 931/22 939/4 lieu [1] 933/15 940/4 940/5 940/10 lieutenants [1] 992/6 950/1 952/11 954/4 902/6 life [1] 956/5 964/20 966/6 lift [2] 1001/24 1003/1 967/2 968/14 975/16 likelihood [4] 939/6 983/5 984/8 990/16 939/7 1076/20 1077/14 993/23 994/2 1005/21 L likely [3] 888/18 1076/22 1079/6 likened [1] 844/22 likes [2] 840/13 965/20 Limited [1] 1025/18 limits [4] 807/9 1047/22 1047/23 1048/13 line [46] 787/23 789/19 791/4 799/18 807/15 814/5 817/23 852/8 853/17 873/3 873/10 918/16 918/20 918/22 919/17 919/24 921/2 940/20 940/21 947/3 949/19 965/12 976/9 976/23 1006/14 1006/14 1025/21 1044/21 1046/1 1046/19 1051/14 1051/16 1051/18 1051/19 1051/20 1054/13 1056/22 1065/19 1065/22 1072/20 1073/6 1074/10 1075/1 1075/14 1076/24 1077/5 Line's [1] 825/20 lines [10] 891/15 891/18 896/4 917/20 922/11 951/20 968/14 1011/13 1011/19 1037/11 liquidity [1] 832/3 list [7] 790/20 791/5 791/19 878/18 909/4 933/14 1070/2 listed [2] 879/19 896/16 listen [1] 817/6 listened [1] 817/9 listening [2] 977/3 1014/10 lists [7] 799/17 809/3 886/17 957/7 957/8 999/14 999/15 literally [1] 1022/3 litigate [2] 890/6 1012/13 litigation [12] 785/3 817/6 831/18 890/24 909/13 909/14 936/13 943/17 947/15 1014/22 1050/9 1050/10 litigator [4] 892/13 892/16 892/18 1050/6 little [36] 788/14 793/19 793/20 797/8 797/14 797/18 801/8 805/12 808/13 812/20 814/9 820/21 824/3 824/10 833/18 835/7 839/8 845/3 851/13 853/16 854/10 874/21 874/22 879/4 921/15 925/17 928/2 940/2 951/1 964/24 980/11 1009/5 1015/7 1035/18 1037/8 1060/23 live [5] 933/8 933/16 937/22 938/2 939/22 lives [1] 939/11 living [1] 847/5 LLC [57] 785/3 786/8 786/13 786/14 787/6 787/6 787/23 792/9 795/13 812/3 812/12 817/22 817/23 817/24 823/5 828/6 830/15 830/22 863/16 863/20 864/9 864/11 864/16 864/20 865/2 871/13 874/4 874/12 874/19 877/12 881/18 883/18 887/23 898/21 899/2 899/17 899/17 925/6 942/10 948/3 950/8 953/15 958/18 959/5 973/19 973/20 981/15 996/3 996/9 1001/21 1002/23 1003/5 1003/10 1026/2 1045/11 1045/13 1063/15 LLC - Strictly [1] 877/12 LLP [9] 786/3 786/10 786/12 786/16 787/5 787/11 787/14 787/18 787/22 Load [22] 787/23 789/19 807/15 814/5 817/23 825/20 918/15 918/20 918/22 949/19 976/9 976/23 1044/21 1065/19 1065/22 1072/20 1073/6 1074/10 1075/1 1075/14 1076/24 1077/5 lobbing [1] 948/18 lock [1] 1057/20 logic [1] 929/18 logical [1] 890/20 logistical [1] 940/5 logo [1] 877/6 LOI [5] 888/5 898/15 901/3 901/12 907/8 long [22] 791/9 793/23 806/10 826/13 826/14 826/19 841/15 846/18 848/15 947/22 951/2 968/17 998/14 1026/8 1026/23 1060/6 1062/16 1073/12 1074/17 1075/1 1076/22 1077/7 looked [27] 800/16 802/22 817/14 822/19 823/24 824/10 828/10 834/16 846/21 862/7 CHANCERY COURT REPORTERS 865/2 883/15 884/11 887/20 924/4 945/24 946/21 961/20 964/21 971/10 971/15 976/3 981/2 981/23 1033/8 1038/4 1060/22 looking [19] 788/13 795/2 806/21 815/5 838/12 849/22 873/8 893/24 910/19 948/23 969/7 970/20 977/1 999/13 999/13 999/14 999/18 1044/9 1065/1 looks [16] 790/12 791/24 792/18 799/11 808/15 813/22 851/24 852/22 880/21 885/12 916/11 962/13 982/9 994/9 1011/7 1011/8 losing [1] 1075/4 lost [2] 886/24 911/22 lot [46] 788/23 788/23 789/23 790/2 794/1 803/20 803/20 803/21 829/12 834/21 839/22 840/13 842/16 843/12 848/22 849/5 852/12 852/15 866/20 877/18 893/3 896/5 902/1 935/7 938/10 961/4 961/9 973/21 973/24 991/22 992/13 992/19 1023/11 1024/6 1027/9 1031/17 1031/20 1035/13 1035/14 1035/19 1038/2 1038/12 1049/1 1049/2 1074/1 1074/13 lots [3] 897/17 948/19 956/16 loud [1] 1076/18 loved [1] 837/24 low [2] 895/18 930/18 lower [1] 965/19 lowers [1] 919/18 loyalty [2] 1080/19 1081/9 LP [1] 804/14 LPs [1] 804/14 LTIPs [1] 986/10 luckily [1] 827/6 lucky [1] 800/20 lunch [6] 925/13 927/6 931/23 932/1 940/15 946/22 luncheon [1] 932/8 lunches [1] 1049/14 Luther [1] 793/5 LYNETTE [1] 787/17 M Macaux [3] 944/6 944/9 955/1 mad [2] 1014/4 1047/20 mail [100] 790/6 790/6 (93) LEONE... - mail M mail... [98] 790/18 791/4 791/16 791/16 799/6 799/12 800/15 800/18 801/2 801/14 801/20 808/14 808/19 813/20 813/23 813/24 814/3 815/5 815/21 816/5 816/13 816/15 817/18 822/8 822/9 824/12 825/10 825/24 826/22 826/24 827/9 827/13 828/13 828/14 851/14 851/23 852/20 853/10 862/9 862/21 862/23 866/17 867/2 867/5 867/9 867/11 867/22 868/16 868/17 869/10 873/18 881/8 881/20 883/3 883/3 884/10 885/8 887/18 887/21 891/3 891/21 896/9 898/8 900/8 900/12 900/14 900/15 900/21 900/22 900/24 903/7 911/21 914/2 919/3 925/20 925/23 926/2 944/5 945/23 948/13 952/10 975/3 985/8 990/5 1024/21 1025/14 1028/5 1036/3 1038/5 1044/5 1053/14 1055/8 1056/20 1057/19 1068/1 1068/9 1075/23 1076/2 mailing [1] 852/21 mails [11] 804/12 824/21 853/16 893/12 893/17 909/22 999/13 999/14 999/14 1043/18 1059/9 majority [1] 846/16 make [52] 794/9 806/13 810/7 813/16 824/22 828/12 830/1 837/7 840/4 840/13 841/15 842/11 848/21 851/1 872/3 889/7 891/11 899/13 906/16 920/8 922/10 922/18 939/10 939/16 941/1 941/8 941/13 945/4 958/7 958/14 958/18 958/24 983/18 991/4 1003/5 1004/12 1004/15 1010/3 1010/8 1013/10 1017/19 1017/20 1018/4 1018/6 1018/19 1019/19 1019/21 1022/13 1026/3 1029/22 1060/11 1070/21 make-whole [7] 941/1 941/8 941/13 958/7 958/14 958/18 958/24 makes [5] 835/18 928/16 967/13 1044/14 1071/8 making [15] 823/10 824/13 837/8 840/15 882/6 919/14 981/4 981/19 981/21 1006/23 1019/3 1031/21 1049/16 1049/18 1087/11 man [1] 843/3 manage [1] 986/17 managed [1] 916/3 management [5] 840/3 844/17 918/4 939/1 991/12 managers [5] 1015/10 1016/10 1017/2 1017/10 1019/23 maneuver [1] 800/2 manner [1] 804/21 March [58] 807/21 813/2 814/4 814/21 815/19 816/1 816/15 816/23 817/18 817/21 818/7 818/11 818/17 819/7 825/7 825/7 825/12 862/9 862/14 862/17 865/9 875/6 875/8 876/1 881/5 882/20 883/3 883/3 884/12 887/18 892/24 893/20 894/13 895/8 898/10 904/2 908/19 909/22 910/20 911/15 912/9 913/17 914/13 916/2 917/4 917/5 918/4 919/4 920/24 924/3 930/14 931/9 944/6 944/13 946/14 946/19 948/2 973/14 March 15 [2] 816/1 818/11 March 15th [3] 815/19 817/18 818/7 March 16 [1] 814/4 March 16th [5] 814/21 816/15 816/23 817/21 818/17 March 21st [1] 825/7 March 24 [1] 948/2 March 24th [4] 944/6 946/14 946/19 973/14 March 25 [1] 825/12 March 25th [1] 825/7 mark [2] 867/24 1070/8 marked [2] 808/17 825/12 market [31] 794/23 802/8 803/11 803/13 807/18 809/19 821/5 821/24 822/2 829/24 863/21 863/24 873/20 878/20 885/11 898/19 899/23 920/10 930/3 950/18 989/12 989/20 989/23 991/11 1055/15 1057/16 1070/7 1070/12 1070/19 1074/7 1077/13 marketers [1] 836/23 marketing [4] 835/12 836/1 836/19 837/2 marketplace [2] 794/23 803/22 markets [11] 802/14 802/14 802/15 802/16 803/3 805/20 806/5 806/6 806/7 806/10 807/12 Martin [1] 793/5 MARURI [1] 787/4 Massachusetts [2] 786/7 787/17 material [2] 907/17 907/24 materially [1] 908/5 materials [1] 916/19 math [2] 821/3 935/22 MATHILDA [1] 786/6 matter [9] 821/3 845/20 847/13 952/24 993/21 993/22 995/20 995/24 1028/12 matters [3] 995/22 995/23 1002/15 maximize [1] 937/18 may [61] 792/13 792/13 798/18 798/20 799/15 812/4 816/8 846/7 856/1 856/5 861/11 866/9 870/13 870/20 876/15 878/7 892/12 892/24 899/11 931/18 933/5 934/5 934/8 934/8 938/1 941/23 943/16 943/21 943/23 948/8 951/24 953/22 955/14 957/12 957/12 960/2 972/17 975/5 977/12 991/15 1009/11 1009/19 1009/23 1010/4 1010/10 1010/15 1011/4 1015/5 1019/6 1019/8 1028/7 1028/7 1028/17 1044/1 1054/21 1058/6 1067/20 1067/22 1072/1 1077/6 1085/13 May 2015 [1] 948/8 maybe [17] 790/8 808/16 810/5 810/8 817/9 826/23 827/4 847/8 861/23 892/4 940/6 1033/6 1035/19 1056/24 1058/3 1065/24 1078/10 MC [2] 1013/15 1013/16 McAuliffe [43] 793/17 846/11 978/15 995/13 997/6 997/10 997/11 997/15 997/17 998/23 999/4 1038/16 1038/23 1039/5 1039/9 1039/20 1040/9 1040/20 1040/21 1043/18 1043/23 1046/6 1046/21 1050/17 1050/22 1051/5 1051/13 1062/11 1063/10 1064/11 1065/16 1066/4 1066/5 1066/6 1066/10 1066/20 1067/7 1081/1 1083/7 1083/18 1084/8 1084/13 1085/4 McAuliffe's [1] 1083/6 McBRIDE [1] 787/9 MCGEE [1] 786/6 MCGEE-TUBB [1] 786/6 McIntosh [2] 1019/22 1023/23 McIntosh's [1] 1020/7 mean [29] 791/6 794/23 797/5 810/8 810/14 823/17 847/17 853/8 876/5 887/24 888/23 889/12 918/19 938/19 938/22 951/8 956/3 956/9 970/1 972/13 1011/8 1013/18 1022/3 1024/4 1030/16 1052/21 1056/6 1060/10 1060/12 meaning [5] 805/19 905/13 1006/16 1026/24 1060/13 means [7] 889/1 920/1 946/15 954/8 982/20 983/21 1031/6 meant [10] 803/24 809/15 837/3 981/8 981/16 982/18 1004/1 1020/11 1057/4 1073/17 measure [1] 876/18 mechanism [1] 957/20 meet [7] 822/21 830/24 863/15 871/11 908/9 1034/20 1063/1 meeting [112] 789/13 789/22 790/13 792/11 792/23 793/12 796/16 796/17 796/19 804/14 814/10 814/12 819/19 819/21 832/1 832/21 832/23 956/7 956/8 956/19 957/5 958/17 959/9 960/14 961/20 969/14 969/23 969/24 975/23 975/24 976/1 976/6 976/8 976/10 976/14 976/19 976/20 976/23 977/3 978/11 978/22 978/24 979/3 984/11 984/15 984/24 CHANCERY COURT REPORTERS 985/2 985/3 985/3 985/10 985/13 988/9 988/10 988/10 988/11 989/10 993/6 993/14 994/8 994/16 994/18 995/10 1000/8 1000/22 1001/6 1001/14 1004/24 1005/7 1005/9 1007/7 1010/12 1011/5 1011/6 1013/6 1015/9 1015/15 1015/21 1016/6 1016/8 1016/11 1016/15 1016/20 1016/23 1017/1 1017/3 1017/8 1017/11 1018/23 1020/4 1022/10 1022/16 1023/3 1024/1 1031/5 1032/4 1032/8 1034/18 1068/15 1068/16 1068/18 1079/13 1079/14 1079/22 1080/11 1081/7 1081/13 1081/14 1083/7 1084/2 1084/20 1085/15 1086/7 meetings [8] 789/3 956/10 956/14 956/17 1010/5 1049/15 1060/19 1060/20 member [8] 790/21 829/6 829/8 830/24 945/9 950/11 1001/22 1073/9 Member's [2] 829/7 829/10 members [47] 790/20 790/22 791/5 792/1 792/4 792/13 823/19 827/24 827/24 828/24 830/14 844/16 856/21 857/10 858/19 865/16 865/24 866/5 866/6 866/13 871/13 871/14 871/21 878/16 881/12 902/22 903/10 944/20 950/23 953/6 957/17 975/1 977/7 977/22 985/6 987/4 1001/23 1002/1 1002/2 1002/24 1003/1 1063/14 1063/17 1072/22 1074/9 1075/12 1075/12 Members' [1] 830/21 members/investors [1] 1063/14 memo [17] 868/5 868/24 868/24 869/2 882/20 904/1 990/14 992/8 992/10 1039/16 1046/3 1051/12 1051/15 1051/22 1063/10 1066/20 1066/20 memorandum [1] (94) mail... - memorandum M memorandum... [1] 1063/12 memory [2] 892/2 971/22 memos [10] 869/8 1039/10 1039/10 1039/12 1040/9 1043/19 1046/5 1046/8 1046/15 1064/17 MENKEN [1] 786/3 mention [7] 811/8 866/18 866/21 867/2 900/14 928/24 1066/3 mentioned [12] 813/9 835/8 842/15 845/10 900/18 910/3 951/20 1004/8 1032/5 1038/1 1038/2 1038/3 merger [1] 1053/1 merits [1] 907/16 MERYEM [1] 787/10 mess [1] 939/10 message [8] 832/18 906/16 1018/22 1019/1 1020/11 1020/12 1020/14 1038/8 messenger [1] 1020/10 messing [2] 937/12 937/13 Messrs. [1] 933/13 Messrs. Freney [1] 933/13 met [4] 815/13 872/4 1010/10 1038/12 metadata [1] 1063/8 methodology [1] 912/12 MICHAEL [21] 786/5 786/16 787/2 787/16 787/21 793/17 796/9 804/20 842/24 846/11 889/23 924/10 978/15 978/17 1013/16 1013/18 1032/5 1043/23 1044/12 1045/15 1050/24 Michael's [1] 1046/19 mid [1] 1005/23 mid-sentence [1] 1005/23 middle [5] 800/18 827/19 848/5 905/20 914/1 might [14] 885/24 906/11 918/12 929/19 933/12 939/1 951/18 952/1 962/14 1004/8 1041/9 1042/5 1059/23 1072/8 Mike [1] 1013/18 million [24] 822/12 824/23 845/23 850/1 854/14 877/22 877/24 880/14 881/1 881/10 881/11 883/6 886/20 903/9 910/21 912/16 916/4 916/13 917/21 918/6 944/19 946/23 962/21 982/23 mind [6] 789/18 903/6 903/14 934/23 940/17 951/6 Minerals [3] 786/13 817/22 833/21 mini [1] 839/18 mini-triathlon [1] 839/18 minimize [1] 1037/13 minimum [10] 822/13 880/9 886/18 910/22 914/22 918/6 950/12 950/13 950/19 1071/18 minority [14] 805/5 807/2 809/24 810/20 811/1 820/6 926/14 926/20 930/1 930/4 943/2 1015/2 1063/14 1065/11 Mintz [29] 786/7 807/22 808/15 812/2 826/20 829/13 859/1 864/22 868/24 892/12 893/5 927/21 944/5 946/1 946/14 952/7 952/14 952/23 953/10 955/17 972/18 973/3 973/5 983/9 994/6 1025/1 1041/12 1070/1 1071/4 minute [10] 870/19 883/17 911/11 915/2 932/4 948/12 959/5 979/24 1062/1 1079/12 minutes [14] 817/10 850/6 933/18 956/21 957/4 957/13 985/10 994/22 995/10 1000/9 1007/19 1008/14 1079/12 1085/11 misdescribes [1] 913/7 missed [1] 950/16 misspoke [3] 816/9 921/22 985/23 mistake [1] 878/8 misunderstood [2] 970/3 970/15 MIT [2] 836/7 974/16 Mm [8] 799/10 815/9 822/5 825/9 962/19 971/13 979/6 988/15 Mm-hmm [7] 799/10 815/9 822/5 825/9 962/19 971/13 988/15 MNAT's [1] 950/7 modifies [1] 951/24 Moelis [4] 821/5 898/19 900/2 1077/12 moment [6] 827/15 882/24 940/7 987/20 1014/21 1017/5 momentous [1] 1067/6 moments [1] 1043/16 Monday [5] 826/3 844/16 848/3 888/5 938/20 money [10] 788/23 810/7 838/3 968/2 999/22 999/23 1016/3 1032/16 1033/2 1072/16 month [7] 803/3 807/16 813/10 813/12 907/4 1025/4 1061/5 months [21] 803/9 803/9 803/9 803/15 803/15 805/6 807/10 842/4 842/4 842/6 890/11 1018/12 1018/12 1018/13 1059/17 1060/5 1060/9 1061/5 1076/20 1079/19 1079/20 moot [2] 822/2 1074/4 Morgan [4] 795/24 796/6 797/21 797/22 morning [11] 788/4 788/5 788/8 788/9 798/7 854/17 856/9 856/10 862/9 944/11 972/5 Morris [2] 786/3 1041/11 Morse [2] 825/12 825/20 most [17] 803/13 825/16 840/4 843/12 848/15 848/15 897/15 902/1 933/22 937/9 950/5 988/2 988/14 989/3 1032/19 1055/22 1080/8 motion [3] 1083/20 1083/21 1083/22 mouth [1] 1048/19 mouthful [1] 809/8 move [16] 841/16 878/11 886/11 887/4 915/22 919/1 928/2 967/1 982/8 984/8 1008/9 1028/24 1034/1 1059/17 1067/21 1069/6 moving [2] 842/15 1069/11 Mr [178] 815/16 855/4 855/8 855/12 855/15 856/9 858/5 858/24 859/10 859/20 860/6 861/8 861/17 862/8 867/7 867/23 868/11 868/14 868/17 869/9 873/1 873/23 873/23 874/2 874/12 875/5 875/19 876/16 876/17 881/20 884/15 884/18 886/21 887/11 891/20 892/11 892/21 893/1 894/12 894/12 894/23 895/22 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Mr. [438] Mr. Azzi [1] 913/18 Mr. Callahan [1] 825/11 Mr. Carlinsky [2] 856/3 969/1 Mr. Carr [10] 801/18 CHANCERY COURT REPORTERS 801/19 802/12 802/20 898/10 958/4 958/11 988/4 990/4 990/8 Mr. Carr's [2] 940/14 940/15 Mr. Clark [15] 995/9 995/14 996/2 997/5 997/12 1001/16 1005/5 1007/12 1007/13 1044/6 1044/12 1045/18 1050/20 1052/18 1067/8 Mr. Clark's [9] 993/12 1000/9 1001/9 1001/13 1040/2 1045/2 1045/6 1045/24 1051/9 Mr. Coumantaros [3] 815/7 852/21 984/22 Mr. Crosby [8] 814/4 815/16 816/5 816/13 817/1 817/7 818/15 819/5 Mr. Eric [1] 841/7 Mr. Freney [39] 821/12 821/23 822/8 822/10 822/17 822/23 823/2 823/8 824/12 874/17 875/6 875/8 875/13 876/2 876/23 877/20 878/14 878/22 879/16 880/9 880/24 881/8 881/18 882/1 883/14 884/11 885/22 886/6 886/15 903/15 909/21 910/19 912/9 913/5 914/2 914/13 914/21 916/2 922/2 Mr. Freney's [6] 831/6 883/2 887/9 887/20 903/21 915/5 Mr. Fyrwald [3] 839/5 839/14 841/7 Mr. Garges [1] 825/11 Mr. Hurst [12] 799/7 799/12 815/15 848/3 850/21 851/14 851/23 852/21 987/24 1000/13 1002/4 1030/18 Mr. Hurst's [2] 844/15 844/20 Mr. Johnson [22] 799/6 799/11 800/1 800/17 800/18 801/5 833/2 833/7 833/24 834/1 835/9 836/13 838/13 839/7 841/6 842/12 844/10 852/22 1015/9 1023/3 1063/11 1084/21 Mr. Johnson's [2] 835/10 841/21 Mr. Kelly [7] 808/14 808/22 948/13 948/14 948/17 950/4 1034/20 Mr. Kelly's [1] 952/5 Mr. Koch [52] 788/8 (95) memorandum... - Mr. Koch 934/18 936/12 936/17 855/15 988/4 1030/7 1030/24 1084/20 936/20 936/22 937/2 Mr. Koch... [51] 797/24 937/7 937/8 938/11 Ms. Cohen [1] 988/4 799/5 801/4 806/4 939/6 944/13 946/1 Ms. O'Donnell [17] 813/20 817/5 818/14 799/7 800/1 800/16 946/3 952/23 955/17 822/7 825/10 828/4 819/4 819/8 819/18 957/9 958/13 959/4 831/16 833/1 843/15 819/19 819/24 820/4 962/11 963/2 963/22 851/6 851/10 854/15 820/8 820/14 852/1 964/5 964/12 964/14 883/1 889/8 933/9 853/6 855/15 1030/7 965/2 965/9 965/17 933/23 934/7 934/11 1030/24 1084/20 971/3 971/24 981/7 936/21 937/6 938/8 982/2 982/21 984/2 Ms. O'Donnell's [1] 940/13 943/8 944/1 851/23 985/18 985/24 987/3 948/1 954/1 954/10 988/7 994/15 1000/14 much [17] 793/18 955/16 959/3 963/20 805/7 833/16 836/6 1000/24 1002/5 968/23 969/1 969/19 849/10 849/11 890/6 1007/20 1008/4 970/20 973/13 974/20 901/1 901/21 905/24 1009/19 1011/4 975/10 979/18 984/10 931/6 1009/6 1015/17 1011/12 1011/19 991/18 992/23 993/3 1012/11 1013/1 1015/5 1015/19 1035/8 993/13 997/3 999/24 1055/24 1064/14 1022/9 1022/14 1005/11 1052/2 1022/18 1022/22 multiple [3] 907/17 Mr. Leone-Quick [21] 1023/1 1024/22 1025/1 938/18 950/12 926/1 944/6 944/10 1025/7 1025/15 1026/6 musings [1] 956/1 944/24 945/15 945/24 1026/11 1026/15 must [13] 807/8 827/1 952/23 957/10 958/13 1029/1 1029/8 1029/24 854/9 856/13 944/17 959/4 965/4 971/3 1030/5 1030/8 1030/18 955/6 962/24 963/15 973/4 981/4 985/18 1031/2 1031/5 1031/13 983/19 986/22 1001/22 986/1 988/8 1068/1 1002/3 1071/19 1032/9 1032/12 1068/10 1068/23 1032/17 1032/18 mutually [1] 943/12 1086/6 1034/6 1034/19 1036/3 my [88] 793/21 794/8 Mr. Leone-Quick's [6] 794/9 801/4 808/5 1038/5 1041/11 893/20 894/20 896/1 1046/23 1047/7 1068/2 810/14 810/15 810/16 967/5 967/19 981/3 818/8 824/10 826/18 1068/10 1068/23 Mr. Macaux [1] 944/9 827/13 830/9 831/8 1075/24 1079/2 Mr. McAuliffe [18] 839/11 839/17 849/22 1079/19 1086/5 995/13 997/6 997/10 896/9 852/24 854/12 854/12 Mr. Popeo's [18] 997/11 997/15 997/17 856/16 856/18 861/18 923/22 924/3 935/7 998/23 999/4 1040/9 868/5 868/20 869/15 954/5 954/12 961/16 1043/18 1046/6 964/21 964/22 965/23 879/16 879/17 890/14 1046/21 1051/13 891/11 892/1 892/3 968/7 981/3 983/8 1062/11 1064/11 1033/8 1033/9 1034/2 897/19 898/16 898/17 1066/4 1066/5 1083/18 899/7 899/21 901/2 1041/5 1045/20 Mr. McIntosh's [1] 901/11 904/16 904/22 Mr. Revers [1] 819/3 1020/7 Mr. Rosow [1] 825/11 917/8 917/10 917/11 Mr. Morse [1] 825/12 930/13 937/15 940/3 Mr. Townsend [17] Mr. Nachbar [2] 934/19 940/7 963/24 964/9 987/21 993/5 993/14 981/4 994/4 1000/8 1000/14 970/8 970/13 970/16 Mr. Nachbar's [1] 1000/21 1001/5 1002/4 971/22 974/8 975/7 936/16 1002/14 1003/4 1003/9 975/8 975/14 976/13 Mr. Norman [1] 872/21 985/19 991/24 993/19 1003/17 1006/2 Mr. Parmelee [8] 790/7 995/4 1003/15 1003/20 1006/16 1007/13 790/17 791/2 791/14 1005/3 1010/16 1008/2 849/13 849/15 852/22 1019/14 1020/16 Mr. Townsend's [4] 1020/10 1030/12 1031/4 994/17 1002/22 Mr. Parmelee's [1] 1033/20 1035/12 1004/24 1007/21 850/13 Mr. Volpert [15] 813/22 1035/15 1035/16 Mr. Popeo [122] 1043/1 1044/2 1048/19 815/6 815/15 816/5 823/22 824/7 831/4 816/13 816/15 817/12 1058/8 1058/11 869/4 869/11 869/24 1058/18 1061/14 819/2 819/5 819/20 873/6 873/12 876/17 832/19 851/23 852/21 1062/21 1074/14 883/15 883/15 884/14 1080/7 1080/7 1085/22 987/24 1033/9 887/10 888/1 888/3 1085/23 1056/21 Ms [1] 889/12 889/18 890/22 799/7 800/1 myself [1] 1021/14 Ms. [19] 891/2 892/12 894/12 800/16 819/4 819/8 mystery [1] 815/1 897/1 898/9 900/8 819/18 819/19 819/24 900/24 901/7 904/4 N 820/4 820/8 820/14 909/22 911/15 913/17 NACHBAR [10] 786/2 851/23 852/1 853/6 924/9 934/17 934/17 M 855/8 855/12 894/12 894/23 895/22 896/12 934/19 976/19 981/4 Nachbar's [1] 936/16 nailed [1] 1033/12 name [10] 815/14 833/19 838/22 846/23 846/24 893/7 910/3 910/3 935/7 970/8 named [1] 944/6 names [2] 921/3 1039/24 narrow [2] 838/12 927/10 narrowly [2] 950/2 950/4 natural [1] 806/18 naturally [1] 847/16 nature [1] 1028/13 nautical [1] 888/24 NDA [2] 820/4 820/11 nearly [1] 945/1 necessarily [3] 888/23 895/12 929/19 necessity [1] 939/21 need [24] 800/21 811/5 822/8 850/3 856/17 859/23 863/1 870/5 871/5 875/7 879/17 897/23 928/22 931/17 935/18 937/22 938/2 950/23 969/16 982/22 983/14 1040/14 1059/5 1078/19 needed [11] 811/8 831/24 846/13 873/19 875/9 929/1 935/13 942/15 942/16 942/24 951/1 needs [6] 799/20 891/22 892/1 971/5 1033/12 1042/18 negatively [1] 844/19 negotiate [11] 863/15 870/8 871/11 888/5 897/18 929/16 961/9 1031/7 1031/15 1069/9 1076/23 negotiated [4] 829/18 865/14 904/11 1069/4 negotiating [12] 864/13 864/15 926/5 926/5 929/12 930/22 931/14 1026/9 1026/23 1027/2 1036/10 1044/22 negotiation [1] 931/9 negotiations [2] 874/11 1045/10 negotiator [2] 874/4 874/6 Nestler [2] 847/1 849/1 net [5] 811/6 884/23 919/19 928/23 955/6 never [24] 796/15 796/15 796/16 883/8 CHANCERY COURT REPORTERS 905/6 905/6 905/8 935/3 941/11 947/15 947/16 951/21 955/9 969/8 980/3 996/13 997/7 997/21 1003/20 1006/24 1021/16 1022/3 1027/16 1037/13 new [16] 786/12 787/5 787/22 818/12 825/21 946/6 946/15 946/20 947/7 947/12 947/17 973/14 1024/9 1036/9 1036/17 1054/21 newer [1] 845/1 nice [3] 800/19 849/2 1067/15 Nichols [2] 786/3 1041/11 night [4] 801/23 826/1 827/10 1022/15 nine [1] 803/9 nobody [4] 888/17 1016/10 1021/11 1067/14 nods [1] 922/9 non [3] 789/18 789/19 951/2 non-1.5x [1] 951/2 non-Crestview [1] 789/18 non-Load [1] 789/19 none [2] 939/17 971/14 nonlawyer [1] 979/3 Nope [1] 967/8 nor [1] 969/9 normally [1] 1021/24 NORMAN [3] 786/9 861/8 872/21 North [2] 785/11 785/23 note [2] 877/19 975/14 noted [1] 958/5 notes [79] 869/15 891/11 892/3 892/3 893/20 894/20 895/1 896/2 920/19 920/22 922/22 923/4 923/9 923/23 924/3 924/5 954/5 954/13 956/19 956/20 961/16 963/11 964/21 964/22 966/12 967/6 967/20 968/10 969/4 969/7 970/1 975/5 975/7 975/13 976/13 977/1 977/2 978/21 979/13 979/22 980/9 980/10 980/15 980/23 981/3 981/3 981/3 981/9 981/21 982/7 983/9 984/21 1001/13 1002/16 1009/17 1009/19 1010/17 1011/4 1014/10 1016/16 1016/17 1022/20 (96) Mr. Koch... - notes N notes... [17] 1022/22 1023/1 1030/11 1030/12 1033/8 1033/9 1034/2 1035/12 1035/13 1035/15 1035/16 1035/20 1041/5 1081/6 1083/6 1085/22 1085/23 nothing [6] 914/7 998/18 1024/3 1066/10 1066/19 1086/11 notice [6] 1041/14 1063/12 1063/13 1063/19 1064/6 1076/6 noticed [1] 935/2 notifying [1] 794/16 notion [2] 866/18 1040/8 November [7] 788/13 788/16 788/20 804/13 971/21 972/3 1056/15 November 2015 [1] 788/20 November 4 [1] 788/13 November 5th [1] 971/21 nowhere [2] 866/17 922/22 nuisance [1] 849/20 number [65] 788/24 791/6 792/5 792/16 802/4 808/2 808/8 816/11 816/12 824/23 828/20 829/22 832/11 840/8 850/1 856/22 858/18 860/19 861/14 871/7 872/3 876/2 876/24 881/2 885/10 886/20 887/1 891/22 892/1 915/10 916/9 916/13 920/10 925/5 928/20 929/9 930/9 931/12 935/21 942/3 948/17 949/14 952/17 954/18 954/20 959/14 961/10 963/18 963/18 967/12 971/10 971/11 977/13 980/18 1030/10 1033/11 1034/4 1041/6 1041/13 1062/5 1068/10 1070/3 1075/4 1083/15 1083/18 numbered [1] 1044/3 numbers [9] 861/23 922/12 930/12 1020/18 1021/1 1021/12 1022/11 1083/5 1083/13 numerous [3] 1049/14 1049/14 1065/23 O O'Donnell [19] 787/12 787/18 799/7 800/1 800/16 819/4 819/8 819/18 819/19 819/24 820/4 820/8 820/14 852/1 853/6 855/15 1030/7 1030/24 1084/20 O'Donnell's [1] 851/23 oath [6] 817/11 818/15 1081/2 1083/8 1084/13 1085/5 object [1] 936/17 objected [1] 807/15 objection [9] 936/18 943/13 943/18 968/22 970/14 1005/3 1005/5 1005/14 1028/6 objections [1] 934/20 objective [1] 1052/11 obligation [3] 809/21 834/17 834/19 obnoxious [1] 1035/19 obstruct [3] 1082/14 1084/12 1084/24 obstruct/derail [1] 1084/12 obtained [1] 863/3 obvious [1] 818/18 obviously [11] 799/19 882/22 885/23 886/15 888/10 934/19 937/1 957/7 995/17 1015/20 1044/10 occasionally [1] 1049/24 occur [4] 813/12 828/24 829/10 1069/7 occurred [6] 790/10 847/8 847/10 947/6 976/2 984/23 occurring [1] 804/10 occurs [2] 847/15 1071/8 OCIC [9] 822/20 856/13 857/19 859/22 866/7 866/13 903/10 963/4 1066/7 OCMH [10] 905/13 905/16 1025/8 1072/4 1072/8 1072/19 1072/21 1073/4 1073/21 1074/5 OCMH's [2] 890/7 890/23 OCMHI [5] 814/5 825/24 828/15 1071/10 1071/15 OCMHI-appointed [1] 825/24 October [4] 1041/10 1043/6 1053/13 1053/14 off [30] 788/11 796/18 796/18 799/12 812/11 828/5 830/11 837/6 846/15 854/9 887/4 902/10 902/11 907/14 926/20 937/18 938/7 1006/15 1006/20 938/20 941/7 953/16 964/10 964/14 993/10 1006/24 1006/24 1003/6 1003/9 1045/15 1007/1 1007/5 1007/8 1008/5 1019/14 1050/16 1051/2 1033/20 1040/23 1068/20 1083/1 offer [26] 805/5 822/3 1042/8 1042/22 1047/6 1049/4 1058/18 834/14 863/6 870/7 1077/18 1079/9 870/7 870/8 870/16 870/23 871/1 871/11 opinions [11] 789/24 888/11 888/16 888/17 790/2 790/3 978/16 999/7 1047/3 1048/7 895/2 896/10 896/14 1048/14 1049/3 1051/1 896/19 897/2 897/9 897/15 897/16 897/18 1079/1 944/19 961/8 979/17 opponents [1] 844/24 opportunity [9] 828/13 offering [1] 821/14 office [5] 848/24 849/1 913/4 913/8 913/11 936/9 936/20 955/15 869/7 996/20 996/23 994/16 1076/23 officer [4] 833/20 837/13 837/22 838/7 opposed [3] 927/23 1038/17 1046/22 official [1] 863/2 opposite [2] 901/18 offset [1] 1031/10 often [2] 872/10 930/11 1040/24 oh [23] 795/21 796/21 optimistic [5] 1017/20 1018/2 1019/14 806/9 821/21 843/19 847/21 921/19 931/24 1019/15 1019/16 949/7 998/11 998/22 optimize [1] 847/24 1008/7 1022/20 option [11] 933/18 1037/12 1043/8 1038/15 1049/10 1051/19 1056/5 1080/6 1043/13 1060/3 1060/4 1060/13 1061/11 1080/12 1082/23 1065/21 1065/22 1083/12 1084/15 1070/3 1087/2 options [5] 1069/1 oil [1] 806/19 1070/2 1070/6 1071/2 OK [1] 1078/19 1071/3 old [2] 836/19 845/13 older [2] 845/2 845/3 order [18] 791/7 811/6 856/14 859/23 873/19 omit [1] 909/3 883/6 899/18 923/7 on [453] once [8] 809/9 871/18 928/22 934/16 943/1 950/10 951/1 960/17 872/18 886/16 910/4 935/7 942/21 1029/14 980/10 1026/9 1026/23 1027/1 one's [2] 987/9 987/9 orders [2] 969/6 one-off [1] 907/14 ones [3] 812/21 847/15 969/21 935/5 organism [1] 847/5 organization [3] open [1] 798/5 846/10 847/19 847/24 opening [1] 870/4 organizational [2] openly [1] 1030/8 847/7 847/10 operate [7] 793/24 837/1 838/1 843/12 orient [2] 808/22 813/2 883/18 902/1 1063/21 origin [2] 1020/11 1020/14 operating [6] 833/20 837/22 863/16 863/21 original [4] 828/2 866/2 871/15 1070/8 871/13 927/15 operations [1] 836/18 others [12] 803/18 831/17 894/13 897/4 operator [3] 836/24 917/6 920/23 978/16 837/5 838/7 987/4 1010/11 1039/23 operators [1] 836/23 1043/4 1080/13 opinion [40] 823/15 839/13 889/21 981/16 others' [1] 982/7 988/20 993/6 993/15 otherwise [5] 872/19 949/17 952/1 1002/2 993/19 994/1 994/4 994/12 994/17 995/19 1087/10 996/14 996/21 997/8 Othon [4] 909/23 997/21 998/3 1000/23 912/22 1053/15 1001/1 1001/6 1003/15 1054/17 CHANCERY COURT REPORTERS ought [5] 838/8 852/14 968/10 1035/19 1038/24 ourselves [1] 1042/16 out-talk [1] 1019/9 outcome [2] 1028/19 1076/23 outperformance [3] 809/10 926/9 928/18 outs [2] 897/17 1073/22 outside [12] 825/19 906/9 907/15 979/8 982/11 992/11 992/12 992/15 996/8 999/8 1027/4 1064/20 over [31] 792/14 806/16 820/18 828/10 833/9 835/3 843/10 845/11 845/24 847/8 849/3 855/6 861/8 872/8 880/23 882/15 938/24 972/13 988/21 1002/1 1003/1 1005/3 1005/5 1012/18 1016/1 1023/7 1023/7 1023/8 1026/8 1029/20 1032/8 overall [1] 1043/14 overcome [1] 992/19 overlapping [2] 832/22 1005/16 overperform [1] 965/21 overruled [1] 936/18 oversaw [1] 848/17 oversell [1] 799/20 owed [2] 850/17 1080/19 own [12] 793/21 797/6 817/15 843/12 845/19 902/2 968/2 999/20 1019/4 1047/2 1060/23 1079/1 ownership [1] 945/10 OXBOW [79] 785/3 786/8 786/13 786/14 787/6 787/6 789/11 792/8 802/10 808/1 810/23 812/2 812/10 812/17 814/18 815/17 815/21 815/22 817/21 817/22 817/23 819/8 819/15 820/4 833/4 833/8 833/12 833/20 833/21 836/13 837/13 838/14 841/21 844/6 844/7 844/19 847/9 847/11 849/14 851/17 851/19 852/12 870/8 877/5 877/7 877/9 877/12 878/5 878/6 898/21 900/4 901/3 901/12 903/9 910/4 918/4 927/17 941/6 942/3 943/8 955/1 961/23 969/10 975/20 (97) notes... - OXBOW O OXBOW... [15] 979/7 983/13 985/10 1025/8 1025/17 1025/19 1026/7 1027/1 1034/7 1045/21 1055/18 1063/12 1063/16 1064/4 1078/14 Oxbow's [5] 806/5 806/7 863/13 910/11 1068/24 Oxbow-created [1] 877/7 Oxbridge [1] 998/12 oxide [2] 835/20 837/9 oxygen [1] 835/20 P P'd [1] 854/9 P.A [2] 786/18 787/20 p.m [14] 816/23 817/2 818/11 825/12 827/10 868/5 868/5 887/18 932/8 933/2 1009/1 1053/20 1076/3 1087/17 PACZKOWSKI [1] 787/17 pages [5] 802/3 828/18 987/22 1044/13 1064/22 paid [19] 790/21 791/7 792/1 792/3 804/18 830/2 849/10 852/14 883/6 920/2 926/7 926/9 929/13 929/13 944/17 950/11 955/19 983/18 1007/4 Palm [2] 832/24 839/8 paper [1] 1054/2 paragraph [26] 799/19 808/20 827/19 828/23 829/6 830/11 831/3 907/13 919/17 919/23 927/8 949/24 950/1 951/12 953/2 987/13 1001/19 1002/16 1044/10 1065/2 1065/15 1076/12 1076/15 1077/19 1078/6 1078/13 paragraphs [3] 919/23 928/3 1065/2 paralegals [1] 861/4 pardon [2] 921/22 989/7 parked [1] 853/23 Parmelee [21] 790/7 790/17 791/2 791/14 849/7 849/7 849/13 849/15 849/24 852/22 933/13 1017/9 1017/12 1017/15 1017/16 1018/21 1019/5 1019/11 1020/10 1020/12 1040/21 Parmelee's [1] 850/13 845/4 845/21 847/6 part [15] 797/11 807/20 850/2 861/3 872/18 897/15 902/1 953/22 842/22 843/1 856/2 978/24 992/12 992/14 856/3 893/4 952/13 969/10 1012/14 1048/2 994/9 999/15 999/16 1049/1 1057/15 1080/8 1048/4 1055/13 1083/1 1074/21 1080/17 people's [3] 939/11 participate [1] 829/9 991/6 1040/19 participation [2] 829/10 893/4 per [19] 808/24 821/1 856/13 862/19 863/15 particular [7] 880/24 871/12 878/1 898/21 881/16 926/7 993/18 1020/19 1021/2 1076/1 900/4 903/9 912/11 particularly [2] 1018/6 928/7 933/18 945/8 950/11 958/8 1071/20 1049/24 1072/19 1077/15 parties [8] 941/9 941/15 942/22 943/10 per-Member [1] 950/11 951/2 951/3 951/23 per-unit [1] 821/1 1063/18 percent [7] 805/10 844/11 971/9 1023/7 partner [10] 892/13 1023/8 1023/13 892/16 893/7 929/20 1023/15 948/15 952/8 965/4 1015/3 1030/6 1056/10 percentage [7] 808/24 810/14 830/21 928/6 partners [3] 787/7 945/8 945/9 945/10 787/7 1056/11 peregrine [1] 847/13 parts [1] 927/17 perfect [2] 850/4 pass [1] 822/1 1069/22 passing [1] 830/18 performance [2] past [1] 982/23 path [4] 832/3 1058/24 810/12 833/3 1065/17 1067/10 perhaps [1] 869/24 period [16] 803/3 patient [1] 972/15 803/18 805/19 805/19 pause [4] 805/19 807/16 813/11 813/12 879/4 893/1 895/8 pay [21] 793/23 821/14 915/19 930/15 997/16 821/15 870/16 870/23 1010/10 1023/18 1042/11 1061/5 1061/8 929/21 930/17 941/5 1005/6 1005/15 1006/5 1061/12 1006/21 1007/13 permissible [1] 828/6 1029/2 1029/5 1029/20 permission [1] 933/15 1040/17 1045/21 permitted [3] 812/12 1046/18 1064/6 1073/2 1004/13 1004/15 person [5] 825/21 payable [1] 1025/21 869/3 874/17 892/20 paying [3] 1006/4 934/24 1029/15 1042/14 personal [5] 849/9 payment [28] 811/1 910/7 991/6 1023/4 812/3 812/11 812/11 1081/9 813/7 826/21 828/5 831/5 850/8 850/17 personally [7] 893/15 850/24 851/18 851/20 905/13 938/14 998/8 1053/11 1053/17 852/2 852/10 853/2 1080/19 853/7 946/23 947/5 1003/6 1003/9 1025/16 perspective [3] 821/20 1026/3 1026/8 1026/9 853/13 988/9 1026/22 1027/1 pessimistic [1] 1018/1 1029/13 Peter [1] 825/20 payments [1] 851/17 petition [1] 890/2 petroleum [8] 802/16 payout [1] 955/7 802/17 806/13 806/15 pays [1] 920/1 833/15 835/19 837/4 PC [1] 786/7 847/1 penny [1] 810/18 phone [6] 869/11 people [32] 797/6 803/14 804/22 806/17 891/10 985/11 999/15 1050/5 1050/6 812/4 812/19 835/4 843/10 843/12 844/16 phrase [3] 888/24 947/16 1029/5 845/1 845/2 845/2 phrasing [1] 1058/11 pick [1] 949/2 picture [1] 905/21 pie [2] 929/24 930/2 pieces [1] 1040/6 Pierre [7] 910/3 910/4 1051/3 1053/20 1059/5 1067/20 1067/22 pin [1] 953/21 pit [1] 1069/1 place [14] 807/11 838/6 850/5 896/15 899/10 962/6 969/14 994/21 995/1 995/1 995/10 1045/10 1066/6 1079/13 plagiarizing [2] 959/18 959/19 plain [1] 829/18 Plaintiff [1] 786/8 plaintiffs [4] 786/13 855/4 855/14 933/12 plaintiffs' [2] 934/11 1088/2 plan [11] 795/22 843/5 843/17 1054/20 1054/21 1055/4 1055/11 1056/24 1058/20 1059/1 1087/8 plane [7] 840/18 840/20 840/21 841/2 848/6 849/3 853/23 planning [1] 842/22 plants [1] 837/1 plausible [2] 889/10 1033/3 play [8] 800/19 844/24 847/2 856/3 856/4 895/1 941/20 993/12 played [5] 933/19 940/23 942/1 1001/11 1020/8 playing [1] 846/22 plea [1] 1080/17 please [46] 801/20 812/7 823/12 831/21 856/6 860/18 861/17 867/14 867/19 872/19 883/11 886/12 887/2 904/21 912/15 912/24 919/24 920/17 923/18 940/19 944/1 952/18 956/22 957/2 957/13 961/12 977/10 1001/9 1009/12 1009/16 1010/1 1010/15 1011/1 1014/19 1019/6 1020/7 1024/16 1030/15 1032/21 1041/6 1043/15 1048/18 1051/16 1055/6 1058/6 1075/20 pleased [1] 855/13 pleasure [1] 939/24 plight [1] 813/15 podium [1] 855/9 CHANCERY COURT REPORTERS point [84] 794/18 795/19 802/21 803/1 804/9 805/18 806/7 806/22 812/17 818/10 826/5 833/22 836/12 837/12 837/15 838/13 841/23 842/13 844/10 857/18 859/16 862/12 863/5 865/3 875/21 879/9 880/8 882/11 888/17 894/14 895/18 896/12 902/14 909/13 924/9 927/2 929/22 930/5 930/19 931/21 938/21 944/15 945/1 946/18 947/19 947/23 949/16 953/12 960/13 960/15 963/2 963/22 964/2 964/6 964/16 965/6 969/2 972/4 974/14 979/23 986/16 991/8 993/4 993/13 996/24 1010/4 1013/17 1020/16 1020/19 1022/8 1024/8 1025/5 1026/14 1029/1 1029/23 1040/2 1041/18 1043/4 1043/5 1046/6 1052/22 1071/7 1080/14 1084/2 pointed [3] 840/1 1044/18 1070/11 pointless [1] 929/14 points [4] 799/20 926/1 965/5 979/5 policy [1] 999/17 Polk [2] 889/24 890/1 pool [1] 839/18 Poole [1] 815/16 poor [2] 872/20 1083/8 Popeo [169] 786/7 794/3 823/9 823/22 824/7 831/4 842/10 858/24 859/20 867/7 867/23 868/11 868/14 868/17 868/23 869/1 869/4 869/11 869/21 869/24 873/6 873/12 876/17 882/15 883/15 883/15 884/14 884/22 887/10 888/1 888/3 889/12 889/18 890/22 891/2 892/12 894/12 897/1 898/9 900/8 900/24 901/7 903/17 903/20 903/24 904/4 904/20 909/7 909/22 911/10 911/15 912/22 913/17 920/23 924/9 934/17 934/17 934/18 935/12 935/15 936/12 936/17 936/20 936/22 937/2 937/7 937/8 938/11 939/6 944/13 946/1 946/3 952/23 955/17 957/9 958/13 (98) OXBOW... - Popeo P Popeo... [93] 959/4 962/11 963/2 963/22 964/5 964/12 964/14 965/2 965/9 965/17 968/2 971/3 971/7 971/24 976/19 980/13 980/15 980/24 981/7 981/12 982/2 982/21 983/4 984/2 985/18 985/24 986/8 986/12 987/3 987/14 988/7 994/15 1000/14 1000/24 1002/5 1007/20 1008/4 1009/19 1011/4 1011/8 1011/8 1011/12 1011/19 1012/11 1013/1 1015/5 1018/3 1022/9 1022/14 1022/18 1022/22 1023/1 1024/22 1025/1 1025/7 1025/15 1026/6 1026/11 1026/15 1027/21 1029/1 1029/8 1029/24 1030/5 1030/8 1030/18 1031/2 1031/5 1031/13 1032/1 1032/4 1032/9 1032/12 1032/17 1032/18 1034/6 1034/19 1036/3 1038/5 1041/11 1046/23 1047/7 1050/6 1068/2 1068/10 1068/23 1075/24 1079/2 1079/19 1085/15 1085/16 1086/5 1087/6 Popeo's [20] 896/9 923/22 924/3 935/7 954/5 954/12 961/16 964/21 964/22 965/23 968/7 968/10 981/3 983/8 1033/8 1033/9 1033/23 1034/2 1041/5 1045/20 Port [1] 848/14 position [34] 833/11 850/13 850/17 856/12 856/16 856/20 890/1 902/11 906/17 935/16 936/16 941/4 941/6 950/9 963/5 966/20 973/16 984/4 986/13 986/20 987/5 993/7 993/17 1001/20 1004/8 1004/9 1004/11 1004/12 1004/15 1004/16 1004/18 1045/21 1051/5 1064/5 positions [2] 951/14 986/17 positives [2] 799/14 799/15 possibility [4] 930/16 938/20 939/8 1072/3 possible [8] 809/22 810/1 830/13 830/16 830/22 920/9 953/4 1070/5 possibly [4] 838/23 842/1 885/20 1069/3 post [1] 1065/20 post-Put [1] 1065/20 postponed [1] 792/24 postponement [1] 793/6 potential [12] 788/24 842/21 843/2 843/17 843/22 935/1 941/3 941/8 946/16 1036/9 1053/1 1070/2 potentially [4] 790/23 842/7 935/18 946/7 Potter [1] 786/10 PowerPoint [3] 802/4 976/2 976/16 practical [2] 839/24 901/22 practically [1] 939/9 practice.' [1] 1044/17 pre [1] 948/20 pre-history [1] 948/20 preceded [1] 1061/6 precise [2] 843/16 997/4 precludes [2] 945/8 1078/15 predicate [1] 937/17 predicated [1] 941/14 predict [4] 803/2 803/10 803/14 1035/1 preempt [1] 1072/3 preemptive [7] 896/19 896/20 897/2 897/4 897/10 897/23 960/5 prefer [3] 890/6 890/23 1055/20 preference [1] 1080/7 preferrable [1] 1065/17 preferred [3] 796/7 1043/3 1056/4 preliminary [1] 938/6 premise [2] 823/18 1078/16 prepare [5] 795/22 974/1 989/22 991/10 1086/2 prepared [16] 831/23 901/8 917/15 935/19 948/8 984/21 995/10 1000/22 1007/20 1032/14 1042/12 1051/13 1057/6 1062/11 1070/2 1086/6 preparing [3] 906/24 919/7 992/1 present [8] 970/3 985/15 985/18 986/1 1041/14 1084/20 1084/21 1084/22 presentation [10] 788/13 788/17 801/14 801/18 802/2 806/4 806/21 976/2 976/16 976/16 presented [1] 1079/16 president [9] 838/14 838/23 841/1 841/3 841/7 841/23 841/24 842/7 1018/14 press [3] 807/13 807/18 844/12 pressed [1] 832/13 pressing [1] 827/2 pressure [1] 1023/11 pressured [2] 1043/17 1050/21 pressuring [1] 1043/23 presumptions [1] 1031/21 pretrial [1] 934/16 pretty [8] 790/3 872/17 907/23 924/1 1021/20 1055/23 1062/15 1063/24 prevaricating [1] 1052/19 prevent [3] 1037/24 1061/20 1061/23 previous [3] 876/3 886/8 948/24 previously [4] 788/1 943/4 1021/15 1021/17 price [59] 789/6 792/1 792/2 806/18 806/19 809/22 810/1 811/5 821/1 830/3 835/6 857/3 859/7 859/22 862/18 863/10 863/14 863/15 863/19 866/18 870/13 870/20 871/2 871/12 871/15 884/23 885/3 886/17 898/21 900/4 900/15 903/9 904/12 904/12 905/4 907/23 914/14 919/18 920/4 922/23 928/22 929/21 945/6 947/21 948/4 950/10 954/15 955/1 971/17 972/6 973/9 973/18 975/1 996/1 1025/17 1031/7 1033/17 1041/15 1064/7 prices [1] 803/15 Pricewaterhouse [3] 850/2 850/6 850/7 Prickett [1] 787/20 primary [3] 874/4 874/6 1057/9 principle [1] 859/12 printed [1] 1062/10 prior [19] 800/20 805/21 814/21 818/16 822/23 838/20 853/12 857/17 857/18 865/21 887/10 894/16 909/1 913/17 948/1 1017/1 1021/7 1021/8 1027/23 private [8] 804/23 834/11 863/3 976/10 991/1 1055/17 1055/20 1056/6 privilege [3] 968/23 968/24 1028/13 privileged [1] 969/8 pro [2] 823/20 944/17 probabilities [2] 895/16 895/17 probability [4] 835/1 895/13 930/19 965/19 probably [14] 798/5 889/5 937/9 939/2 939/13 965/11 1014/24 1025/3 1033/4 1039/3 1054/20 1066/18 1073/12 1080/9 problem [7] 799/2 822/3 843/20 861/9 977/12 1061/10 1083/12 problems [4] 899/8 992/14 1059/2 1083/4 proceed [7] 795/6 856/1 856/5 861/11 940/10 1006/7 1042/12 proceeds [14] 829/2 830/5 830/13 830/15 830/19 830/23 944/17 945/10 953/5 965/8 983/18 983/20 1001/22 1071/9 process [33] 791/8 795/8 797/12 802/9 804/9 805/21 807/21 807/23 810/20 810/24 820/1 820/6 838/18 888/7 901/9 907/16 949/17 949/18 982/11 982/16 988/2 988/2 988/13 989/4 989/12 1021/24 1069/6 1069/11 1076/7 1076/19 1082/15 1084/12 1084/24 produced [1] 975/15 product [3] 837/7 837/11 996/1 productive [1] 848/15 products [1] 802/16 professional [2] 890/20 981/16 profit [1] 840/4 profitable [1] 848/16 program [1] 832/6 progress [1] 1087/11 prohibited [1] 1003/5 Project [4] 877/5 877/10 877/17 915/6 promising [1] 945/3 promote [1] 843/5 promoted [3] 836/13 838/5 841/24 CHANCERY COURT REPORTERS promoting [1] 996/12 prompt [2] 791/15 951/18 pronounce [1] 1015/18 properly [2] 951/13 1064/6 property [1] 839/11 proportional [1] 933/20 proposal [22] 862/19 863/2 863/13 863/14 871/2 887/19 891/5 897/17 898/18 899/9 899/22 907/16 907/21 907/22 908/5 917/19 936/21 954/15 957/21 957/21 957/24 958/5 proposals [1] 1087/9 proposed [6] 807/15 877/22 880/19 907/7 927/21 1036/9 proposing [2] 926/17 928/1 prospect [1] 1078/17 protected [1] 1044/20 protection [3] 926/19 1044/20 1073/9 protections [1] 1075/11 proud [2] 872/10 1009/7 Prounis [3] 909/23 911/10 913/17 prove [1] 1018/10 provide [8] 791/21 830/23 833/5 991/13 992/6 994/1 1061/24 1075/11 provided [5] 792/2 810/24 870/9 1064/18 1066/12 provides [1] 829/4 providing [4] 826/10 881/23 882/2 917/16 provision [8] 909/6 942/22 950/9 951/7 1001/21 1003/18 1004/1 1060/11 provisions [4] 872/4 943/9 950/8 951/8 proviso [1] 941/14 proximity [2] 827/4 828/11 public [11] 834/20 1055/24 1056/2 1056/4 1056/23 1057/3 1057/6 1057/8 1057/15 1059/2 1059/6 puff [1] 1023/11 puffed [5] 795/2 1017/18 1017/19 1023/17 1023/20 puffed-up [3] 1017/19 1023/17 1023/20 puffing [1] 1019/20 pull [5] 913/22 954/4 (99) Popeo... - pull P pull... [3] 1014/17 1039/23 1062/4 pulled [1] 892/11 pulling [2] 984/10 1035/22 purchase [4] 884/23 886/17 914/14 945/5 Purchaser [1] 879/22 pure [1] 821/3 purely [1] 909/14 purpose [5] 810/11 811/3 825/23 888/4 921/4 purposes [5] 809/3 809/4 921/4 928/9 941/20 pursuant [1] 1025/9 pursue [1] 1060/16 pursued [2] 1060/5 1060/14 push [8] 842/11 885/10 885/24 920/9 937/18 938/7 939/16 951/2 pushed [1] 824/9 pushing [5] 797/22 840/24 842/8 901/21 916/9 put [122] 788/15 788/18 788/21 789/12 789/14 790/10 790/14 790/24 790/24 791/1 792/12 792/22 792/24 793/7 793/12 794/13 799/9 825/18 836/14 836/19 836/22 837/5 838/5 842/17 844/23 846/18 846/18 849/6 849/24 850/1 857/9 881/16 881/19 902/18 930/9 970/21 975/3 978/17 979/13 993/2 999/21 1009/4 1025/17 1026/2 1026/9 1026/22 1027/1 1027/11 1029/12 1029/14 1031/10 1033/13 1033/19 1034/18 1035/23 1036/8 1036/17 1036/22 1036/23 1036/24 1037/9 1037/22 1038/18 1039/17 1040/16 1041/14 1041/15 1041/19 1042/14 1043/9 1043/24 1044/7 1045/21 1046/10 1046/18 1048/19 1049/2 1050/19 1056/17 1056/24 1057/4 1057/11 1059/1 1059/6 1061/6 1061/12 1061/12 1061/22 1063/1 1063/2 1063/12 1063/13 1063/15 1063/18 1063/19 1064/6 1064/7 1064/7 1065/18 1065/20 1066/5 1066/14 1066/18 1068/17 1068/20 1069/1 1069/5 1070/4 1076/6 1079/17 1079/21 1079/24 1080/3 1080/9 1081/9 1081/14 1082/4 1082/8 1082/13 1083/20 1084/3 1084/22 put's [2] 1037/14 1067/11 puts [1] 912/22 putting [3] 933/18 1023/11 1043/18 pyramiding [2] 951/17 951/18 Q qualifies [1] 951/23 quarter [1] 794/24 questioning [1] 855/4 questions [12] 815/18 839/24 840/1 843/15 858/8 904/20 969/13 1018/16 1019/12 1035/20 1047/11 1050/14 queuing [1] 940/17 quibbling [1] 859/17 quick [31] 786/4 875/5 884/15 887/11 892/21 893/1 894/12 913/22 926/1 933/4 944/6 944/10 944/24 945/15 945/24 952/23 954/24 957/10 958/13 959/4 965/4 971/3 973/4 981/4 985/18 986/1 988/8 1068/1 1068/10 1068/23 1086/6 Quick's [8] 862/8 893/20 894/20 896/1 967/5 967/19 968/12 981/3 quickly [5] 827/5 833/5 861/5 913/21 1033/6 Quinn [1] 787/5 quite [9] 803/16 858/4 865/6 882/5 890/12 905/21 953/17 966/12 978/15 quorum [3] 985/6 985/12 985/13 quote [5] 829/4 863/10 870/13 870/20 965/20 R Rain [4] 834/15 834/15 834/18 835/7 raise [3] 788/23 1027/12 1033/2 raised [7] 932/2 935/12 944/15 959/3 1023/23 1030/24 1068/17 raising [2] 1016/3 1032/16 ran [1] 814/16 range [1] 960/17 rapidly [1] 1060/23 rare [1] 826/17 rata [2] 823/20 944/17 rather [11] 801/22 830/7 838/11 886/11 888/6 890/7 890/20 981/5 1034/17 1042/15 1077/4 re [6] 785/3 837/6 955/1 961/23 983/13 983/15 re-crystalize [1] 837/6 reach [7] 815/18 861/4 888/4 921/8 924/18 1022/14 1032/22 reached [3] 845/11 845/14 921/4 reaction [4] 823/7 843/7 937/15 938/6 read [38] 808/21 817/13 829/5 835/5 872/2 873/1 889/19 889/20 889/21 906/22 917/10 919/9 919/12 923/4 923/9 924/22 925/2 937/24 951/8 959/16 959/22 965/1 973/19 981/9 982/24 983/24 999/10 1000/1 1000/3 1000/4 1006/11 1010/15 1045/24 1051/8 1074/16 1076/17 1077/21 1083/20 reading [10] 865/6 865/9 872/7 898/17 899/21 918/9 950/7 981/21 1053/18 1062/15 reads [10] 799/19 800/18 802/8 803/1 805/18 809/9 811/4 827/18 828/23 830/19 ready [5] 791/10 842/12 844/11 853/23 1005/19 real [3] 806/19 807/9 880/19 realistic [2] 930/15 1017/23 reality [2] 792/16 1018/11 realize [6] 936/14 964/24 1037/13 1077/6 1077/23 1078/24 reallocate [1] 950/24 reason [11] 861/1 901/13 909/7 909/8 909/9 982/1 998/22 1007/3 1048/2 1059/11 1070/19 reasonable [4] 821/16 870/13 870/20 871/5 reasonably [1] 1076/22 reasoning [3] 950/14 950/15 950/22 reasons [5] 848/13 908/14 1038/21 1061/14 1065/24 rebuttal [5] 934/5 934/13 934/15 935/1 935/6 recall [67] 789/9 789/21 793/11 793/15 793/17 793/19 794/11 795/18 795/23 801/13 801/17 801/20 802/11 803/6 806/20 807/7 807/14 811/13 814/15 818/9 824/11 825/1 826/15 826/23 838/16 842/20 851/20 853/14 853/15 859/11 859/12 866/10 881/7 894/11 896/24 909/5 914/11 940/14 958/21 958/23 958/24 959/2 959/6 960/19 960/22 963/17 975/3 979/23 980/5 984/6 984/6 989/6 1010/18 1018/24 1019/4 1032/3 1032/15 1032/17 1033/21 1072/6 1073/1 1075/6 1075/16 1081/19 1082/4 1082/12 1085/1 recalled [1] 958/24 receipt [1] 881/9 receive [31] 827/24 828/1 828/24 829/3 829/7 830/15 856/13 856/22 857/10 857/20 858/19 858/20 859/22 859/23 865/16 865/24 887/10 887/21 898/21 900/4 903/8 962/24 963/15 983/19 986/22 1001/22 1001/24 1002/3 1002/24 1003/19 1021/15 received [23] 792/2 808/24 815/7 815/24 816/2 817/1 817/12 818/22 823/7 826/20 853/6 862/14 878/15 891/21 900/21 911/21 925/21 928/7 929/6 954/15 978/2 1046/5 1062/20 receiving [5] 801/13 818/9 822/24 951/3 1021/17 recent [2] 946/4 950/5 recess [4] 854/18 932/8 1008/15 1087/17 recipients [1] 818/12 CHANCERY COURT REPORTERS recognize [6] 923/23 941/17 942/24 1062/14 1062/15 1062/18 recollection [7] 790/9 976/11 990/16 992/3 998/2 1010/9 1074/15 recommendation [3] 1000/15 1002/6 1079/22 recommended [3] 813/10 1000/13 1002/4 reconfirmed [1] 831/8 record [2] 899/13 974/22 recorded [2] 994/8 1083/22 recording [2] 924/9 965/2 Recr [1] 1088/2 recruit [1] 845/1 redemption [2] 793/23 1069/7 redirect [1] 855/5 Redr [1] 1088/2 redraft [1] 818/2 reduce [1] 863/12 reduction [1] 837/8 refer [2] 864/4 1029/6 reference [33] 805/23 817/17 824/22 864/8 865/20 866/13 873/7 890/10 894/17 894/21 895/6 903/21 908/14 914/21 916/13 920/13 922/1 922/10 944/18 964/4 968/15 973/8 973/8 977/19 981/4 1006/16 1026/1 1034/11 1037/19 1037/21 1038/7 1041/19 1059/8 referenced [1] 1002/15 references [1] 878/5 referred [2] 974/6 1037/9 referring [18] 804/3 812/21 827/8 863/20 864/2 866/6 875/21 934/19 949/11 982/14 988/20 989/3 992/13 994/19 1036/19 1036/22 1055/10 1057/23 refers [5] 915/15 967/20 974/23 976/20 977/7 reflect [6] 877/22 957/22 958/6 979/22 982/7 1011/4 reflected [3] 941/7 1052/6 1064/19 reflecting [4] 962/11 984/21 984/23 1034/5 reflection [1] 937/5 reflects [6] 927/10 944/11 954/17 1033/10 (100) pull... - reflects R reflects... [2] 1034/3 1041/10 reforecast [4] 1020/20 1020/23 1021/3 1021/5 reforecasts [2] 1021/8 1021/8 refresh [2] 790/9 992/2 refreshed [1] 1086/24 refused [1] 820/19 regain [1] 803/3 regard [1] 1010/17 regarding [17] 805/20 921/3 944/15 950/9 957/17 960/1 965/7 970/21 986/11 1001/20 1028/18 1044/7 1048/8 1060/3 1063/11 1065/18 1065/19 regardless [4] 1015/21 1028/17 1079/6 1081/16 regards [1] 1051/12 register [2] 1009/8 1058/14 regular [1] 802/3 reimbursed [1] 880/2 reimbursement [3] 848/4 848/10 879/23 reject [15] 789/12 790/10 792/12 792/22 822/2 1037/22 1042/17 1043/9 1059/6 1061/13 1063/2 1070/4 1079/24 1080/9 1083/20 Reject/Ignore [1] 1070/4 rejected [12] 793/13 799/9 857/9 1040/8 1066/15 1067/11 1081/14 1082/5 1082/8 1082/13 1084/3 1084/22 rejecting [2] 1041/19 1076/5 rejection [3] 794/4 794/8 794/13 rejects [1] 1069/1 relate [1] 853/11 related [3] 877/23 916/4 951/7 Relating [1] 813/7 relation [1] 898/14 relationship [4] 833/3 840/24 941/10 1050/4 relationships [1] 840/13 relieved [1] 846/7 religious [5] 857/2 859/6 859/8 859/12 904/11 reluctant [1] 869/13 rely [2] 792/18 792/19 relying [1] 1046/23 remain [2] 899/10 1056/4 remember [105] 788/12 789/2 815/14 819/10 833/8 833/11 838/24 840/2 848/7 857/1 857/4 857/23 858/3 868/15 869/17 869/20 875/2 875/10 875/16 887/1 892/5 895/12 896/16 910/13 919/10 925/8 926/23 946/24 956/6 956/8 956/10 956/12 956/14 961/7 963/20 963/21 964/8 964/9 972/23 973/1 976/12 976/15 979/12 980/10 983/2 984/1 984/10 984/14 984/16 987/24 988/5 988/17 988/18 989/9 989/16 989/18 989/19 989/21 989/24 990/2 990/3 990/7 990/23 992/5 992/10 992/16 993/4 999/2 1001/2 1001/7 1001/7 1010/14 1012/19 1014/7 1014/14 1014/16 1014/20 1015/6 1015/8 1015/11 1015/13 1016/6 1016/12 1016/13 1023/6 1056/17 1060/15 1062/12 1068/19 1068/21 1071/1 1071/6 1072/10 1074/19 1075/5 1075/7 1075/9 1075/10 1079/24 1080/5 1080/6 1080/19 1080/21 1080/22 1082/16 remembered [2] 956/14 956/18 reminded [2] 797/19 976/18 remote [1] 1078/17 remove [1] 835/19 removed [3] 819/10 820/16 933/13 render [1] 942/9 Renegade [6] 851/17 851/19 852/1 852/10 852/13 853/2 rented [1] 839/12 repeat [2] 966/16 1014/2 repeating [1] 1070/22 reported [1] 1020/1 reporter [1] 972/14 REPORTERS [1] 785/22 reports [1] 937/23 represent [5] 793/3 862/17 893/19 905/13 1053/16 representative [1] 814/5 represented [7] 925/4 925/5 973/4 983/20 1025/7 1025/8 1025/9 representing [7] 1026/15 1026/17 1026/18 1026/18 1026/20 1063/7 1063/17 request [5] 791/3 823/23 831/4 935/3 1082/9 requested [4] 818/1 823/2 1010/12 1074/19 requesting [2] 790/17 790/19 require [4] 822/21 864/18 903/12 1002/24 required [46] 811/7 812/3 822/12 828/1 830/20 863/16 863/20 864/17 864/23 865/14 865/24 870/16 870/23 871/12 880/9 881/11 881/18 881/24 882/2 886/18 887/23 898/19 898/20 899/2 899/17 899/18 899/23 900/3 903/5 903/8 903/14 908/10 910/21 914/22 915/16 918/6 923/7 925/7 928/24 950/11 1001/23 1001/24 1003/1 1044/19 1061/13 1063/15 required -- the [1] 899/17 required to [1] 908/10 requirement [15] 795/12 899/9 947/20 950/13 960/18 973/16 998/1 1073/5 1073/8 1074/6 1074/6 1074/7 1081/10 1081/17 1081/17 requires [7] 827/20 827/23 865/16 945/5 945/7 1004/4 1073/21 reset [1] 805/20 resistance [1] 1038/13 resolution [3] 932/4 941/15 959/10 resolve [3] 942/9 943/10 983/4 resolved [4] 931/5 942/24 959/22 1014/23 respect [12] 788/20 789/10 789/11 814/22 843/17 848/5 872/6 959/13 1002/15 1020/22 1021/7 1069/10 respective [2] 811/9 929/2 respects [1] 907/17 respond [6] 794/12 825/4 911/13 936/4 1058/8 1063/19 responding [4] 824/11 825/1 831/4 1076/6 responds [1] 900/23 response [11] 794/15 794/16 823/23 898/16 907/7 911/10 911/23 943/14 1055/2 1063/13 1080/2 responsibilities [1] 1006/23 responsibility [1] 836/16 rest [2] 853/10 1083/20 restate [1] 897/19 Restated [1] 1025/18 result [5] 863/13 871/10 873/5 933/14 947/6 resulting [1] 877/24 resumed [5] 788/2 855/1 933/2 1002/12 1009/1 retain [1] 1048/14 retained [7] 864/22 892/12 905/12 905/16 905/19 1025/1 1027/23 retaliatory [1] 999/1 retire [3] 837/23 838/2 847/2 retired [3] 837/23 845/18 846/23 retirement [1] 847/3 retread [1] 1066/9 return [10] 791/8 856/14 871/22 875/9 917/22 957/20 982/23 1071/21 1072/21 1073/6 returns [4] 828/2 834/6 838/10 866/1 Revers [2] 814/17 819/3 reverse [1] 1053/1 review [17] 790/16 801/21 828/13 867/8 867/9 867/12 900/8 912/15 914/3 918/23 946/5 946/10 971/22 974/22 1010/7 1010/20 1030/12 reviewed [7] 867/12 868/24 873/16 881/7 906/6 906/15 948/1 reviewing [2] 790/9 873/13 revise [1] 917/9 revised [4] 877/24 884/22 886/16 912/10 revising [1] 914/14 revision [5] 808/23 809/2 927/10 928/5 928/9 revisit [1] 938/7 revitalized [1] 1087/1 reward [2] 809/9 CHANCERY COURT REPORTERS 928/17 Rich [8] 811/19 893/7 927/24 946/8 953/20 954/24 1077/17 1083/22 Rich's [2] 949/8 949/9 RICHARD [1] 786/2 Richards [1] 786/18 rid [3] 825/21 846/1 1057/8 ridiculous [1] 1028/19 right/option [1] 1065/22 rights [3] 829/2 836/1 951/24 risk [6] 1042/2 1042/3 1042/4 1042/14 1042/22 1042/23 risks [1] 1067/10 road [2] 1036/12 1076/5 robe [1] 940/3 Robert [1] 787/7 role [3] 890/7 942/9 942/17 roll [1] 1012/18 rollover [1] 1015/2 Romans [1] 847/22 room [6] 832/16 832/16 832/17 987/9 987/10 1031/24 Ropes [38] 786/12 905/11 905/12 905/15 905/19 908/20 909/1 909/5 909/23 912/23 919/4 962/23 963/5 963/14 965/7 966/20 968/15 968/16 968/20 969/1 969/19 981/5 981/13 983/15 984/3 986/12 987/5 993/7 994/5 1004/8 1004/9 1004/11 1027/20 1027/22 1027/23 1028/8 1028/20 1053/15 Ropes' [5] 963/23 964/6 966/9 984/4 986/20 Rosow [6] 825/11 1082/6 1082/13 1083/19 1084/14 1084/18 route [1] 935/15 RRP [1] 983/17 rude [1] 872/20 ruin [3] 836/21 836/21 975/8 rules [1] 795/16 rumor [1] 805/2 rumors [4] 803/19 803/20 803/24 805/16 run [7] 833/4 900/12 939/23 999/21 999/23 1042/14 1072/13 running [4] 819/2 (101) reflects... - running 986/8 986/12 986/23 987/14 988/12 992/18 running... [3] 835/17 993/24 994/3 994/7 839/21 849/1 994/9 994/16 999/12 RUSTY [2] 787/13 1003/20 1004/7 1006/5 787/14 1006/21 1007/10 1007/15 1011/14 S 1012/12 1012/19 Sachs [43] 788/22 1012/22 1012/22 789/1 796/3 796/7 1013/15 1014/4 796/7 796/10 797/2 797/11 799/14 799/20 1014/24 1015/1 1015/19 1016/2 1016/8 800/3 800/20 800/24 1016/15 1016/15 803/7 806/21 807/20 1017/19 1018/3 808/4 808/11 808/17 810/11 810/22 812/22 1019/13 1019/18 813/10 813/11 842/16 1021/11 1026/2 1026/7 842/21 842/23 842/24 1030/24 1031/3 1032/15 1033/1 877/17 880/5 888/7 1035/13 1040/23 888/11 888/16 889/5 897/16 916/14 916/19 1042/7 1042/8 1045/14 916/22 959/11 959/23 1046/17 1051/19 982/11 984/22 1056/21 1051/20 1057/11 said [197] 789/1 790/2 1066/21 1067/22 1074/16 1080/2 1080/8 793/20 794/3 794/5 1080/10 1081/2 1082/6 794/6 796/4 803/10 803/12 803/19 804/18 1084/18 1085/1 1085/2 804/20 804/22 804/24 1085/19 1085/19 1085/21 805/4 805/5 806/17 sailors [2] 845/7 808/8 810/17 812/5 814/15 814/16 814/19 902/17 sale [115] 790/24 823/10 823/12 824/4 795/6 797/12 802/9 824/15 824/16 832/2 807/6 807/22 810/24 832/7 832/7 834/3 811/5 811/7 819/15 834/16 835/3 835/4 820/1 828/24 829/2 835/4 836/8 839/19 829/9 829/17 829/21 840/2 840/5 842/23 829/22 830/4 830/5 842/24 843/2 843/9 830/14 830/20 830/23 843/9 843/9 844/17 845/21 846/16 846/21 856/17 857/9 858/20 883/7 885/20 885/21 849/5 849/23 850/3 888/20 889/14 891/7 850/13 850/19 851/2 907/15 908/16 923/7 853/24 854/2 854/3 925/7 926/14 926/18 854/5 854/7 854/12 859/15 859/20 863/20 927/11 927/22 928/21 928/24 929/8 929/17 864/15 867/13 869/1 930/24 942/23 943/1 869/1 869/20 873/11 943/2 943/9 944/16 874/9 877/14 878/16 946/7 946/16 947/4 881/9 882/14 884/4 951/5 953/5 955/19 887/15 887/15 889/8 889/19 890/15 890/18 960/17 965/8 966/15 966/21 977/7 977/20 891/10 891/22 892/1 979/24 986/23 988/1 892/1 895/2 895/21 896/10 897/16 897/22 988/13 989/11 993/7 899/21 901/11 901/22 993/8 996/17 998/5 1006/18 1029/13 902/10 902/11 903/7 903/12 903/17 904/16 1037/24 1041/20 1041/21 1042/13 905/6 910/14 914/5 1042/18 1043/10 914/5 926/19 931/4 1044/22 1048/9 935/4 950/18 950/21 951/22 956/16 956/17 1054/22 1055/11 958/17 959/21 959/21 1055/14 1057/5 1057/24 1058/21 960/22 961/8 962/1 1058/23 1059/7 1059/8 965/20 966/8 969/17 1061/20 1061/23 972/16 974/8 978/23 979/10 979/11 981/19 1065/21 1065/23 1066/14 1067/2 983/3 985/21 985/22 R 1067/13 1069/6 1069/11 1070/13 1071/8 1071/15 1071/19 1072/4 1076/7 1076/19 1076/21 1077/7 1078/15 1078/21 1079/5 1081/16 1082/9 1084/7 1085/17 1085/19 sale.' [1] 1041/15 sales [1] 835/11 salesman [1] 836/4 same [62] 790/5 811/17 811/18 811/22 827/1 827/9 830/2 857/3 857/10 859/7 859/22 861/2 866/18 867/23 869/2 870/4 886/19 896/11 896/23 900/1 900/15 904/12 905/4 907/23 912/10 915/13 915/19 922/16 922/23 924/3 938/12 945/22 947/21 948/3 952/13 952/19 962/3 971/17 972/6 973/9 973/9 973/17 973/17 974/7 975/1 982/6 982/6 982/7 986/22 996/19 996/20 996/23 996/23 1001/24 1002/24 1003/19 1003/21 1004/5 1013/4 1016/18 1075/16 1077/20 SARAH [1] 786/18 sat [1] 1030/16 satisfy [3] 907/22 907/22 950/11 satisfy -- the [1] 907/22 satisfying [1] 1038/19 saw [11] 800/10 817/4 893/3 893/12 893/16 894/16 896/9 1007/19 1007/24 1017/18 1062/22 saying [51] 799/13 801/20 803/17 804/6 805/3 805/3 805/9 809/20 825/2 836/19 845/13 852/11 852/12 853/17 854/13 869/21 870/24 871/7 871/19 877/18 883/17 887/12 891/1 891/22 896/18 896/20 899/24 901/10 911/10 929/6 945/5 959/4 964/9 978/19 979/23 979/23 981/5 981/14 987/7 989/21 992/11 1037/12 1039/17 1042/15 1050/23 1050/24 1055/8 1058/11 1067/9 1077/18 1080/6 says [75] 791/5 808/23 852/23 867/24 885/2 888/11 889/12 889/22 890/5 894/5 896/1 896/4 896/5 896/10 896/13 908/8 912/10 912/23 913/18 918/3 919/16 921/20 924/21 928/5 928/17 928/20 946/4 948/13 951/10 954/23 957/16 958/4 960/6 960/11 962/23 962/23 963/13 963/15 966/5 968/19 970/5 970/7 970/7 970/22 974/24 975/22 975/24 977/20 977/23 978/8 982/15 982/17 983/12 983/13 986/8 1000/13 1001/3 1011/14 1011/19 1013/15 1020/14 1023/23 1026/24 1034/6 1041/14 1053/14 1063/12 1065/6 1066/11 1069/21 1069/23 1070/15 1076/17 1077/4 1083/19 scene [1] 996/11 schedule [1] 791/8 scheduled [4] 1010/5 1023/4 1062/24 1067/6 scheme [1] 845/22 scheming [1] 818/19 Scott [2] 881/15 940/17 scratch [1] 971/22 screen [25] 798/13 798/14 798/15 798/17 860/13 876/14 886/22 887/5 887/7 909/20 913/22 915/11 918/11 924/18 962/14 965/1 967/14 972/20 977/11 977/16 1009/24 1033/7 1041/8 1051/17 1053/21 scrivener [1] 996/6 second [34] 791/4 797/16 799/18 800/23 803/1 805/17 805/18 811/3 870/6 870/19 879/14 879/18 880/5 907/11 912/6 919/16 927/8 928/11 944/5 953/2 954/12 965/5 965/6 973/7 975/16 989/8 1002/10 1005/21 1022/10 1024/1 1046/4 1056/22 1071/7 1076/15 seconds [2] 826/24 827/12 secret [3] 955/23 956/2 1031/1 CHANCERY COURT REPORTERS section [16] 829/4 830/8 919/24 944/18 945/6 945/7 951/7 951/19 973/11 973/20 1025/19 1072/22 1073/16 1073/16 1073/21 1078/15 Sections [1] 927/15 securing [1] 863/6 security [1] 1018/3 see 414 [1] 923/11 seeing [1] 1071/1 seek [4] 959/11 960/1 960/11 961/3 seemed [1] 1034/12 seems [2] 945/11 1078/17 seen [26] 851/12 875/13 876/23 903/15 904/14 906/23 907/2 947/24 952/10 955/9 971/18 971/20 972/23 972/24 973/21 973/21 973/24 974/5 974/22 1022/20 1022/22 1023/1 1024/9 1040/4 1040/5 1066/20 selected [1] 800/3 self [2] 797/7 999/20 self-interest [1] 797/7 selfish [1] 938/14 sell [19] 794/17 800/22 800/24 804/19 805/9 806/13 810/6 810/18 811/20 811/21 832/6 837/10 926/21 927/16 977/8 977/22 1055/15 1057/15 1058/14 seller [1] 1078/17 selling [5] 794/19 795/11 809/23 810/21 1057/17 sells [1] 1078/20 seminar [1] 804/15 send [15] 801/20 818/6 818/12 820/9 827/2 849/12 867/24 868/2 906/6 906/9 984/3 992/8 1018/21 1019/1 1052/5 sending [10] 801/20 825/24 828/14 849/16 881/8 906/10 906/12 964/9 992/10 996/7 sends [2] 791/16 869/8 senior [4] 844/17 892/13 892/15 892/16 sense [5] 889/7 928/16 951/21 1000/16 1070/21 sense' [1] 951/19 sense.' [1] 1002/6 sensitivities [1] 1065/7 sent [42] 790/6 799/7 801/2 817/2 817/21 818/10 820/4 823/9 (102) running... - sent S sent... [34] 825/11 826/21 826/24 827/9 828/13 831/14 862/9 867/5 867/9 867/22 868/16 868/17 869/3 869/10 869/20 873/13 883/14 898/8 900/8 900/23 903/17 903/23 906/16 911/22 913/4 914/2 932/3 944/13 964/12 990/4 999/1 1039/16 1055/8 1077/22 sentence [11] 828/5 830/19 863/10 865/21 870/7 896/23 900/2 919/16 982/8 1005/23 1077/4 sentences [3] 808/22 827/19 958/4 sentiment [1] 901/17 separate [4] 807/6 807/8 836/18 1025/9 separately [2] 818/7 955/20 September [5] 788/15 1036/4 1043/6 1044/6 1056/18 September/October [1] 1043/6 series [2] 946/1 981/2 serious [3] 832/13 1035/23 1047/24 seriously [1] 1084/15 serving [2] 936/13 936/15 SESSION [1] 933/1 set [13] 819/20 850/13 860/22 862/13 926/3 930/22 935/20 954/5 960/4 983/8 1010/3 1011/14 1028/5 sets [1] 861/1 setting [2] 810/11 848/12 settled [1] 1044/16 settlement [2] 855/14 932/4 setup [1] 850/4 seven [5] 828/18 847/9 911/16 911/17 948/18 seven-page [1] 948/18 severely [1] 1081/4 Seward [1] 787/22 shape [1] 883/5 share [10] 912/17 962/24 963/9 963/15 968/2 983/21 990/11 1032/14 1032/16 1033/12 shared [3] 969/9 1004/17 1051/23 shareholder [1] 846/17 shareholders [4] 816/18 818/2 851/3 856/16 she [30] 805/3 819/14 819/16 819/17 820/17 820/17 820/18 839/12 839/16 840/9 840/11 840/17 840/18 840/19 841/1 841/14 842/10 852/11 852/12 852/13 852/15 852/16 852/17 852/19 853/19 854/2 854/13 872/13 872/16 872/18 she'd [1] 852/17 she's [4] 840/14 840/16 852/20 1009/4 sheet [2] 1036/9 1036/16 sheets [1] 838/9 shift [1] 1065/17 ship [2] 846/6 846/6 shocked [2] 853/16 1021/20 shoot [1] 1020/10 short [4] 841/15 908/15 960/18 1006/19 shortfall [3] 812/19 822/20 823/3 shortly [5] 791/9 806/23 813/2 827/4 1085/14 should [19] 796/2 796/3 798/2 816/18 824/3 825/3 826/6 853/17 853/19 854/5 861/23 878/18 880/3 883/13 937/7 987/14 1006/7 1079/23 1079/23 shouldn't [2] 824/13 913/6 shout [1] 1009/3 shout-out [1] 1009/3 show [10] 792/4 869/14 925/10 940/13 945/18 956/20 1030/13 1039/18 1041/8 1062/20 showed [4] 853/15 875/5 875/8 876/2 showing [3] 880/18 955/10 1018/10 shown [6] 925/24 972/19 972/21 974/1 974/21 1030/23 shows [5] 792/6 792/7 792/7 792/8 886/19 sic [2] 792/7 892/1 side [13] 851/4 874/18 874/24 881/19 881/19 935/21 951/14 986/13 987/8 987/9 987/10 991/22 991/22 side-effects [1] 951/14 sides [1] 933/17 sign [2] 806/24 835/5 signed [1] 855/17 speakers [2] 832/22 significant [3] 1063/20 solicited [1] 813/15 1005/16 1081/10 1081/12 solid [1] 1052/13 speaking [2] 852/24 solution [5] 830/13 signing [2] 901/2 1000/23 830/17 949/18 953/4 901/11 1032/7 specific [10] 823/3 SILPA [1] 787/4 sim [4] 989/22 991/10 solve [2] 815/1 843/20 824/3 858/7 858/10 877/23 907/6 912/16 992/1 992/21 some-month [1] 946/8 1014/10 1050/13 1061/5 similar [3] 832/11 1047/19 1073/8 specifically [3] 892/5 somebody [3] 805/4 912/22 1028/7 995/16 995/19 simple [2] 911/3 1018/16 speech [3] 793/19 someday [1] 842/2 793/20 1067/15 somehow [1] 844/19 simply [5] 825/18 830/7 865/1 944/18 spend [2] 794/1 someone [17] 805/4 1074/12 805/5 845/16 869/22 1076/6 870/2 897/22 899/1 spending [2] 848/22 simultaneously [2] 992/19 899/16 978/4 978/10 810/20 959/24 978/23 979/2 979/19 spent [4] 788/23 since [10] 794/24 889/23 1024/6 1074/1 858/17 897/11 934/20 994/8 997/5 1014/9 939/20 972/24 998/10 1079/7 spoke [7] 869/11 998/11 1014/21 1045/9 something [41] 817/10 944/10 981/6 1034/6 1053/15 1054/17 single [2] 974/5 974/22 823/16 824/4 835/18 838/19 839/19 841/10 1062/8 sinks [1] 846/6 842/4 846/13 852/14 spot [1] 836/22 sister [3] 839/12 875/22 879/23 891/5 840/10 840/11 spread [1] 805/3 891/10 897/14 901/10 spring [2] 906/4 sit [6] 878/4 940/2 917/11 926/12 927/23 930/9 956/11 982/5 996/22 934/20 935/17 939/16 springing [1] 1069/6 997/1 965/17 971/21 978/21 square [1] 802/7 sits [1] 996/19 staff [2] 1043/24 sitting [5] 938/8 971/24 984/7 990/20 996/1 1046/12 977/3 1073/20 1084/3 1014/24 1023/14 1030/13 1031/1 1047/4 stage [2] 862/13 926/3 situation [1] 1065/7 1047/18 1060/2 1060/4 stamp [1] 954/18 six [10] 803/9 803/9 803/15 807/10 807/16 1060/13 1078/8 1078/9 stand [7] 878/4 927/3 932/1 937/20 938/9 1081/2 1085/20 813/10 813/12 842/3 938/15 1043/21 845/21 1061/4 sometime [5] 833/10 882/17 882/18 905/20 standard [3] 797/6 six-month [3] 807/16 1022/1 1022/3 906/3 813/10 813/12 sometimes [5] 806/2 standpoint [2] 926/16 Skakel [1] 834/10 845/1 1032/18 1032/19 939/2 skip [3] 885/1 949/24 1083/1 951/12 stands [2] 932/6 somewhat [4] 826/17 1087/2 sky [2] 929/24 930/2 901/19 1018/8 1060/22 Stanley [4] 795/24 sleep [2] 937/11 1078/10 somewhere [1] 845/23 796/6 797/21 797/22 Stargatt [1] 787/11 son [1] 797/20 slept [1] 855/24 soon [5] 800/14 826/3 start [6] 802/8 833/7 slightly [2] 816/24 863/2 882/19 1063/18 835/1 887/17 921/2 868/18 1024/11 slim [2] 798/11 851/8 sooner [1] 857/7 started [10] 806/12 sort [1] 1010/7 slimmer [1] 798/3 sostar.com [1] 813/23 833/12 833/23 834/9 small [11] 833/13 836/9 840/7 840/11 835/23 835/24 836/2 sought [4] 893/10 893/14 893/15 1046/23 865/6 1050/11 1052/24 883/6 883/8 946/23 947/4 955/20 982/22 starting [6] 791/4 sound [4] 802/19 873/2 912/12 919/15 815/11 824/13 825/2 1066/24 953/2 1076/19 sounded [1] 1033/3 smaller [1] 1083/13 sounds [2] 834/3 934/2 starts [7] 799/12 802/2 smart [1] 800/19 830/11 861/22 919/23 source [1] 834/10 smelter [3] 835/17 944/4 983/14 835/18 835/18 SPAC [14] 1053/1 1057/15 1057/19 state [4] 785/1 806/5 smooth [1] 839/23 806/5 973/20 1057/22 1058/13 snap [1] 872/20 1058/23 1060/3 1060/4 stated [5] 863/14 snapped [1] 872/20 882/12 966/4 1001/19 1060/10 1060/13 snuffed [1] 796/18 sold [3] 834/11 834/12 1061/4 1061/4 1061/11 1006/19 1061/20 857/19 statement [11] 866/12 878/24 929/7 947/8 spark [1] 909/14 soldier [1] 847/23 965/23 966/1 966/16 solicit [3] 789/5 813/17 speak [3] 972/13 966/18 982/17 1010/8 1021/14 1022/15 1007/21 CHANCERY COURT REPORTERS (103) sent... - statement S statement... [1] 1049/8 statements [2] 832/2 1084/14 states [2] 829/6 872/17 stating [4] 830/12 882/12 953/11 1001/21 stay [4] 951/23 1012/18 1014/5 1015/2 stayed [1] 998/14 stealing [1] 845/22 steel [1] 802/17 steer [1] 902/9 step [1] 844/9 Stephanie [1] 924/11 STEPHEN [1] 786/9 stepped [2] 902/10 902/11 steps [4] 935/10 1082/14 1084/11 1084/23 stern [1] 964/11 Steve [8] 836/24 837/21 838/6 845/15 845/15 845/18 845/18 848/18 stick [1] 1062/3 still [16] 793/24 814/17 819/8 820/14 844/10 845/8 903/16 915/15 934/13 935/16 955/21 1009/16 1018/13 1018/14 1058/24 1067/7 stipulate [3] 1070/7 1070/12 1070/19 stipulated [2] 1071/9 1078/4 stipulating [2] 1071/4 1078/7 stipulation [1] 855/18 stock [3] 1055/15 1057/15 1058/14 stockholder [1] 993/21 stood [1] 1087/3 stop [10] 790/23 791/1 854/16 993/15 994/21 995/1 1000/23 1005/21 1047/15 1086/22 stopped [2] 806/11 806/12 stopper [1] 949/19 stopper.' [1] 986/24 story [3] 833/6 841/15 841/15 straight [1] 812/7 Strangely [1] 815/20 stranger [1] 841/11 strangest [1] 840/22 strategic [2] 838/10 929/20 strategies [2] 1028/1 1070/6 strategy [41] 790/1 793/18 849/20 976/17 1026/21 1027/11 1027/14 1029/3 1029/9 1029/12 1029/15 1029/16 1030/1 1030/9 1031/1 1031/9 1031/11 1031/13 1031/14 1034/21 1035/11 1037/23 1038/12 1039/7 1039/11 1040/16 1041/21 1042/13 1043/3 1043/7 1043/13 1048/8 1049/5 1052/24 1054/22 1058/21 1063/2 1079/20 1080/4 1085/16 1086/19 Street [2] 785/11 785/23 strength [1] 951/14 Strictly [1] 877/12 strike [3] 892/9 981/14 1064/16 stripped [1] 834/12 strong [5] 796/1 832/2 901/13 1050/24 1063/24 strongly [3] 810/17 1038/17 1080/3 structure [2] 899/10 938/16 struggling [2] 906/21 967/11 studied [1] 1069/17 studying [4] 865/6 865/10 904/10 1074/2 stuff [3] 938/10 978/18 1039/18 sub [2] 803/5 803/5 sub-bullets [1] 803/5 sub-dashes [1] 803/5 subheading [1] 820/23 subject [8] 838/19 853/12 855/5 902/8 995/20 1008/9 1028/12 1046/10 submit [2] 814/7 939/20 submitting [1] 818/16 subpoenaed [1] 1012/21 subpoenaing [1] 1014/4 subsequent [5] 1000/22 1016/19 1021/8 1021/9 1068/17 subsequently [1] 935/2 substance [5] 905/3 958/17 960/15 1066/13 1066/22 substantially [1] 858/4 succeed [5] 965/13 966/3 966/8 966/19 971/5 success [3] 851/13 853/12 854/14 successful [1] 1070/13 succession [3] 842/22 843/5 843/17 such [19] 800/5 802/17 804/4 804/18 804/19 811/7 829/3 830/14 838/9 883/19 888/17 899/9 928/24 929/16 953/5 971/19 971/20 992/14 992/20 sudden [1] 1023/10 suddenly [1] 804/24 sue [1] 832/8 sued [1] 846/2 sufficient [1] 834/22 suggest [3] 853/17 899/10 936/16 suggested [8] 809/1 830/12 880/2 928/8 937/17 1007/21 1030/23 1070/6 suggesting [4] 812/10 979/1 1050/19 1052/18 suggestion [1] 968/24 suggests [2] 898/18 899/22 suit [1] 1013/6 Suite [1] 785/23 Sullivan [1] 787/5 Sulphur [1] 1075/13 summary [1] 925/2 summer [3] 906/4 1024/7 1030/1 super [1] 1017/20 super-optimistic [1] 1017/20 superstars [1] 903/1 supervision [1] 885/23 support [1] 911/7 supporting [2] 822/11 910/21 supposed [1] 982/11 supposition [1] 1013/11 sure [54] 804/11 826/4 828/12 830/1 843/10 843/14 844/11 847/14 847/15 848/21 849/9 858/12 859/3 860/23 865/1 867/6 867/11 870/1 872/3 874/13 890/14 891/11 899/13 900/9 900/11 905/23 906/16 916/21 920/8 923/3 923/14 936/6 939/21 945/4 951/13 966/11 966/22 987/15 991/5 1010/3 1010/8 1013/16 1015/12 1017/21 1018/20 1029/22 1040/3 1051/7 1051/10 1056/13 1062/5 1082/11 1085/21 1086/4 surgeon [2] 836/20 836/21 surprise [1] 797/10 surprised [3] 1081/21 963/21 978/17 981/11 1081/23 1082/1 1040/21 suspect [2] 927/5 talking [36] 788/24 1017/6 797/21 802/13 802/15 839/20 840/11 853/20 suspected [1] 800/6 853/24 854/3 854/11 SV [1] 1044/18 swimming [1] 839/17 872/8 887/22 897/24 914/13 915/9 922/19 switch [1] 1024/5 945/15 946/23 961/7 symbol [1] 978/6 sympathetic [1] 861/3 966/14 974/14 974/16 980/12 982/10 982/16 system [1] 840/3 992/12 1015/24 T 1029/11 1032/1 t/c [1] 983/13 1034/19 1035/7 1038/9 tab [26] 790/4 791/11 1050/6 1050/8 1057/19 798/8 798/10 798/11 1064/13 798/12 798/16 799/5 talks [2] 964/10 800/7 801/11 808/13 1071/18 813/19 816/4 816/8 tamping [1] 1022/11 816/11 817/1 818/23 tangents [1] 1050/16 822/4 825/7 827/5 tape [1] 943/20 827/14 828/9 831/12 tapes [1] 939/22 851/8 852/5 1056/12 Taylor [1] 787/11 table [2] 939/4 1010/4 team [21] 822/10 tabs [1] 867/16 844/22 844/23 874/10 tack [1] 950/10 874/24 889/24 895/7 tail [1] 951/5 897/12 902/19 902/22 tainted [1] 991/6 917/8 921/12 930/21 take [34] 790/11 931/14 938/13 939/5 790/11 791/9 791/17 952/24 955/17 957/17 807/10 807/11 808/21 990/10 991/12 809/7 832/4 832/5 telephone [5] 888/4 841/12 848/21 851/4 961/22 962/16 1033/10 862/15 869/13 872/9 1034/3 872/18 872/19 890/18 tell [56] 793/1 812/7 908/16 916/12 922/3 819/23 820/3 821/12 929/15 935/10 984/12 823/6 823/22 824/2 1008/11 1028/14 831/21 839/8 841/10 1031/22 1037/12 846/19 853/22 855/13 1039/17 1063/5 861/16 864/7 865/7 1074/12 1076/19 865/12 877/14 887/2 1078/18 892/4 904/4 904/7 taken [10] 854/18 913/5 919/24 923/10 871/5 878/18 908/10 929/23 930/8 930/21 920/9 932/8 958/14 931/16 931/17 944/2 986/12 1008/15 1048/9 953/14 953/17 953/21 taking [8] 941/4 941/6 956/20 975/11 990/20 950/9 963/5 977/2 1005/13 1007/12 996/7 1016/17 1051/5 1010/18 1017/13 talk [32] 797/8 797/14 1017/17 1023/6 798/7 801/8 802/1 1024/15 1032/13 808/12 812/20 813/18 1032/23 1034/5 1035/9 820/21 827/3 833/1 1042/17 1043/2 841/20 848/2 851/6 1048/11 1052/1 854/8 873/17 948/13 1064/22 1067/17 958/4 987/20 992/11 1079/8 1011/14 1016/17 telling [40] 824/5 1017/5 1019/9 1027/24 824/12 888/15 888/19 1032/6 1035/3 1045/17 889/12 890/22 896/12 1050/4 1050/5 1071/24 899/1 899/16 901/7 1079/11 903/6 927/20 928/12 talked [17] 788/14 955/22 959/10 963/3 792/24 805/12 806/5 963/22 964/13 971/3 813/21 842/16 848/4 980/13 981/12 982/21 851/12 851/15 851/16 983/2 990/5 990/18 851/18 854/6 925/17 990/23 1001/7 1007/13 CHANCERY COURT REPORTERS (104) statement... - telling T telling... [12] 1014/20 1033/22 1039/6 1039/8 1047/4 1047/13 1047/19 1047/21 1061/10 1064/11 1073/19 1077/13 tells [2] 888/3 1032/19 ten [2] 908/13 1058/18 tenable [1] 1048/10 tendency [2] 1018/5 1018/6 tenth [1] 847/23 term [3] 789/18 1036/9 1036/16 terminated [2] 997/7 997/19 terms [14] 796/23 830/2 905/5 907/23 939/19 950/13 960/9 969/16 973/9 973/17 1025/17 1033/13 1056/7 1061/2 terrible [1] 807/19 terrific [3] 836/4 837/11 840/16 territory [1] 1066/8 test [1] 896/2 testified [35] 788/2 789/4 789/17 819/1 829/11 831/16 831/17 832/19 841/6 844/6 857/1 869/17 869/19 876/22 900/17 910/9 925/3 942/6 943/4 948/10 956/13 988/1 996/2 998/24 999/5 1038/21 1043/22 1045/18 1073/15 1079/14 1081/1 1083/7 1084/13 1084/16 1084/17 testify [4] 877/10 907/1 1030/17 1043/22 testifying [2] 891/20 936/12 testimony [61] 797/10 833/2 833/6 838/20 838/21 838/24 839/4 844/15 844/21 853/13 857/4 857/16 858/16 858/23 859/18 869/17 875/3 875/12 875/16 875/18 875/24 876/4 902/1 902/2 902/24 903/23 904/4 908/23 910/13 925/12 931/10 937/22 938/2 940/14 940/16 946/24 947/11 956/15 972/22 974/2 974/18 974/21 976/3 988/5 993/13 1001/10 1006/12 1007/17 1020/7 1027/5 1027/22 1030/14 1030/22 1039/3 1040/2 1043/16 903/18 934/4 958/24 1043/20 1045/24 1051/9 1052/19 1066/4 997/2 999/19 1012/13 1012/20 1047/24 tevans [1] 815/8 1082/8 Texas [1] 787/14 text [2] 832/14 832/18 things [40] 799/17 804/4 804/4 808/2 texted [1] 1013/5 808/18 830/7 832/11 thank [24] 791/23 793/10 798/21 818/24 833/5 836/6 838/2 838/9 841/16 849/10 855/23 860/8 860/17 856/12 862/23 866/20 884/6 912/8 932/7 894/15 899/5 904/13 940/8 940/9 940/22 949/13 962/17 980/21 913/6 913/7 938/17 938/19 940/5 948/18 1008/12 1009/13 949/14 961/10 992/20 1024/19 1028/15 1029/7 1054/16 1078/8 994/3 1013/3 1013/8 1016/15 1021/23 1087/13 1024/10 1030/11 Thanks [4] 802/6 816/16 945/2 1000/19 1038/3 1040/17 1043/18 1058/11 that to [1] 852/13 1060/10 the -- the [4] 874/6 874/13 1017/17 1061/4 thinking [6] 796/22 858/17 982/9 1027/10 their [64] 790/20 794/15 794/16 795/22 1068/24 1076/5 797/6 801/10 803/3 thinks [4] 882/9 888/16 804/13 804/14 804/15 928/16 1032/18 807/9 811/9 822/13 third [9] 861/23 862/1 863/10 894/5 924/14 828/2 828/2 829/1 965/5 1025/18 1059/23 829/2 843/12 845/3 1059/24 849/19 855/4 856/2 856/3 863/13 863/14 thirds [2] 986/7 1083/19 866/1 866/1 871/14 871/22 890/1 901/21 this [428] 902/2 909/4 910/22 THOMAS [1] 786/11 929/2 930/11 933/14 thorns [1] 851/4 934/16 935/24 936/1 thorough [1] 834/23 937/23 944/19 944/20 though [20] 800/22 803/12 807/18 813/16 945/10 952/7 953/2 834/18 840/20 841/12 956/1 956/2 960/9 869/4 871/1 893/11 1004/15 1004/15 926/16 943/7 968/16 1017/13 1017/14 996/19 1030/5 1043/5 1017/21 1031/7 1057/10 1062/9 1033/18 1039/24 1067/16 1074/2 1050/21 1055/15 1057/15 1058/14 thought [47] 793/21 1070/6 1071/21 1073/6 793/22 794/5 794/5 794/6 794/8 805/24 theory [10] 946/6 806/3 812/5 838/6 946/15 946/20 947/7 839/22 841/2 843/2 947/13 947/17 950/6 973/14 981/13 1024/9 843/4 843/8 843/22 thereabouts [2] 789/3 845/16 857/23 858/3 873/14 880/2 882/10 948/8 890/12 890/15 890/16 therefore [1] 790/23 they'd [2] 797/4 804/16 905/24 906/3 909/15 929/24 930/18 939/5 they'll [1] 860/23 945/17 946/9 966/2 they're [16] 804/24 981/12 994/4 1000/15 813/2 937/2 937/6 1002/5 1043/12 937/23 965/1 967/13 1045/13 1051/19 982/15 1017/21 1053/3 1055/4 1068/3 1035/20 1050/7 1069/18 1075/2 1075/3 1069/4 1071/5 1074/3 1075/3 1077/24 thoughts [3] 808/6 826/10 946/5 they've [2] 933/13 934/12 ThoughtWorks [42] thing [17] 790/8 808/10 793/18 793/21 794/4 794/7 976/17 979/6 810/3 840/22 841/13 1027/10 1027/14 848/11 861/2 889/6 1027/16 1028/4 1028/18 1028/20 1029/2 1029/6 1029/9 1029/12 1030/1 1030/9 1030/19 1031/6 1032/2 1034/21 1035/11 1037/19 1037/23 1038/10 1038/12 1039/11 1040/15 1043/3 1043/7 1043/13 1044/11 1049/1 1051/23 1052/23 1063/2 1067/10 1079/20 1080/4 1086/15 1086/16 threatened [1] 1023/24 threatening [1] 832/1 three [24] 792/6 799/8 803/8 805/6 807/10 807/15 813/10 813/12 816/17 816/19 842/4 845/7 902/17 911/22 917/20 933/11 934/12 964/22 985/12 1018/12 1032/5 1032/5 1046/11 1060/18 threshold [34] 792/14 809/1 809/11 809/18 809/19 810/11 821/24 822/2 822/21 830/15 830/24 863/15 863/19 864/1 864/4 865/21 871/12 878/20 885/11 899/19 920/11 920/14 920/15 921/5 921/11 924/19 928/7 928/16 928/18 946/7 953/6 955/21 958/8 958/16 thresholds [2] 930/23 931/15 through [23] 796/11 829/21 833/4 837/5 841/21 842/10 847/18 885/1 885/9 892/24 893/16 900/13 927/5 940/20 949/16 975/8 990/6 990/12 1057/17 1060/14 1073/16 1077/7 1078/21 throughout [7] 817/14 829/13 936/10 936/14 942/4 1064/12 1064/14 throws [1] 1083/1 thumbs [2] 1079/17 1079/17 Thursday [2] 785/12 800/21 tie [1] 827/4 tied [2] 797/3 1058/17 tightly [1] 797/3 till [1] 1068/20 timekeeping [1] 939/19 times [20] 791/8 792/14 811/9 822/21 828/2 829/1 829/7 CHANCERY COURT REPORTERS 832/11 848/1 866/1 871/14 892/2 929/2 1001/23 1003/18 1004/1 1053/12 1073/6 1085/9 1085/23 tired [1] 1023/20 titled [1] 917/19 today [10] 802/2 902/3 933/21 933/24 956/11 971/15 971/24 972/4 974/2 1072/13 together [8] 805/11 808/6 827/4 930/10 936/23 945/11 949/2 951/8 told [80] 803/8 824/6 835/14 841/11 846/16 850/18 864/11 864/17 865/13 865/15 866/24 873/19 885/19 895/11 895/14 895/17 897/10 904/6 905/1 907/21 931/9 934/13 946/18 946/21 947/19 947/22 948/2 964/6 965/9 965/18 974/7 978/22 981/7 982/2 984/3 987/4 989/2 989/16 990/8 994/1 996/13 997/13 1005/8 1007/6 1013/4 1014/1 1017/16 1018/1 1019/1 1019/13 1020/17 1020/23 1028/3 1028/18 1034/7 1034/16 1039/13 1039/20 1040/8 1043/12 1045/16 1048/11 1048/17 1048/19 1049/12 1057/14 1062/19 1065/16 1066/12 1067/14 1071/3 1071/6 1077/11 1080/18 1083/4 1084/5 1084/6 1084/23 1086/1 1086/5 Tom [1] 815/12 tomorrow [13] 933/19 933/24 934/1 935/17 936/24 972/4 1039/3 1040/12 1072/12 1086/3 1087/1 1087/5 1087/10 tone [1] 832/12 tonight [2] 936/24 1075/19 too [20] 832/20 836/6 840/11 849/12 866/9 899/5 903/3 926/12 939/10 940/1 949/1 1017/13 1018/1 1018/2 1019/14 1019/15 1019/15 1025/14 1061/15 1080/10 took [19] 807/9 812/22 825/21 835/3 857/21 882/18 940/14 969/13 (105) telling... - took 947/20 treatment [11] 857/3 took... [11] 973/16 859/7 866/19 900/16 978/20 980/11 995/10 904/12 923/2 971/18 1014/9 1014/10 972/6 973/9 973/18 1016/16 1042/4 975/1 1045/10 1061/4 trial [6] 785/18 935/8 1079/13 936/11 936/15 937/18 top [22] 802/7 805/8 938/19 812/11 822/10 828/5 trials [1] 938/23 828/23 873/10 879/19 triathlon [1] 839/18 903/10 917/6 941/7 triathlons [1] 837/24 951/1 953/16 964/10 trick [1] 1011/2 964/14 970/9 975/23 tried [6] 812/23 836/18 993/10 1003/6 1003/9 888/4 993/15 1000/23 1054/13 1083/17 1039/9 top-off [9] 812/11 trouble [1] 998/12 828/5 941/7 953/16 871/6 892/22 964/10 964/14 993/10 true [22] 896/14 903/19 906/14 1003/6 1003/9 906/18 908/21 945/9 topic [3] 802/12 973/18 981/17 986/19 1003/17 1016/5 1005/11 1007/11 topics [1] 1024/5 1012/10 1012/15 topping [1] 951/3 1013/7 1026/5 1031/16 topping-up [1] 951/3 1032/11 1032/11 total [6] 919/18 920/2 1038/20 1077/16 926/14 933/22 950/10 true-up [1] 945/9 1071/21 792/7 834/13 trust [10] totally [2] 798/16 834/13 834/17 834/19 987/11 834/20 836/10 866/8 tough [2] 806/19 866/11 995/16 964/24 trusted [2] 910/14 Townsend [22] 987/21 910/16 993/5 993/14 994/4 trusts [1] 796/11 1000/8 1000/14 910/12 1000/21 1001/5 1002/4 trustworthy [2] 910/18 1002/14 1003/4 1003/9 truthful [1] 875/18 1003/17 1006/2 try [18] 788/22 795/6 1006/16 1007/13 814/24 836/22 841/15 1008/2 1044/6 1049/13 841/16 842/11 843/22 1050/2 1050/3 1050/5 858/7 872/19 885/23 Townsend's [4] 994/17 902/7 902/8 951/6 1002/22 1004/24 972/15 1032/6 1032/16 1007/21 1050/13 track [3] 840/4 849/11 trying [34] 800/2 808/5 874/14 808/9 810/19 818/19 training [2] 836/7 826/16 840/6 840/6 839/18 843/14 847/24 849/19 transaction [15] 885/9 886/3 888/19 877/23 879/19 899/11 890/18 896/22 897/8 912/16 916/4 918/3 916/9 920/7 920/8 918/5 941/3 943/11 926/21 937/16 949/16 952/8 993/22 994/14 979/4 986/16 990/20 1006/2 1007/9 1079/4 997/23 1000/18 1011/2 transaction-related [1] 1013/10 1031/6 1054/1 877/23 1058/10 1072/3 transactional [1] TUBB [1] 786/6 993/20 Tuesday [2] 793/4 transcriber [1] 872/17 832/9 transcript [2] 785/18 tune [1] 850/19 924/23 Tunnell [1] 786/3 transcriptors [1] turned [4] 820/17 872/13 845/11 882/15 962/4 transfer [2] 1025/21 turns [4] 872/9 872/19 1026/3 940/5 1075/13 TRAVIS [1] 785/15 twice [2] 935/8 942/7 treated [2] 823/19 T two-thirds [2] 986/7 1083/19 type [6] 790/16 822/22 823/3 943/1 1021/15 1072/21 types [2] 799/24 969/13 typewritten [2] 1001/13 1002/16 U Uh [26] 862/24 866/23 871/3 875/4 879/15 879/24 883/12 884/13 888/2 897/7 899/15 902/15 904/23 919/5 925/19 927/9 928/4 931/11 1050/15 1056/16 1059/18 1066/23 1067/24 1068/13 1079/15 1080/16 Uh-huh [26] 862/24 866/23 871/3 875/4 879/15 879/24 883/12 884/13 888/2 897/7 899/15 902/15 904/23 919/5 925/19 927/9 928/4 931/11 1050/15 1056/16 1059/18 1066/23 1067/24 1068/13 1079/15 1080/16 ulterior [1] 1038/21 ultimate [3] 949/19 1058/12 1068/19 ultimately [9] 789/5 797/11 810/23 871/6 880/18 944/12 949/20 973/15 1061/12 un [1] 1060/11 unaddressed [1] 934/7 unanimously [2] 1080/13 1080/15 unattractive [1] 939/3 unaware [1] 1030/15 unclear [1] 961/11 unconvincing [1] 1044/13 under [36] 803/5 812/12 817/11 818/15 820/23 828/6 830/22 852/1 863/16 863/20 870/16 870/22 871/12 881/18 882/2 911/12 921/19 927/14 948/2 949/7 949/9 957/20 958/18 959/5 963/14 973/17 990/10 1018/3 1055/22 1070/5 1071/14 1078/15 1081/1 1083/8 1084/13 1085/5 underpromise [1] 965/21 underscored [1] 1081/11 understand [33] 822/17 831/3 834/4 838/9 856/11 858/23 868/7 896/22 897/8 899/6 904/3 926/15 931/17 933/9 936/15 945/4 947/18 950/6 955/10 966/18 976/6 982/20 989/2 999/4 999/20 1014/2 1026/15 1035/1 1058/3 1065/3 1065/6 1069/19 1073/9 understandable [1] 803/16 understanding [29] 803/23 805/22 809/14 810/10 810/15 810/16 811/13 811/15 814/7 821/18 829/17 831/8 835/10 835/12 850/10 850/12 850/16 852/9 852/24 853/5 856/20 857/1 857/8 858/16 864/23 871/19 881/23 905/4 945/2 understands [2] 905/12 1068/15 understood [23] 791/3 791/18 864/17 865/14 867/1 882/2 888/21 889/11 889/17 895/7 897/12 899/2 913/3 926/4 926/11 926/12 926/22 928/11 948/14 960/7 1046/14 1072/18 1072/24 underway [3] 933/4 952/12 1050/9 undoable [5] 1060/12 1060/12 1060/24 1061/1 1061/3 unenforceability [1] 1051/22 unfairly [1] 844/18 unfortunately [6] 826/13 840/5 846/4 936/22 955/14 998/15 unhappy [1] 999/8 unified [1] 1001/20 uniformly [4] 1045/20 1046/17 1050/18 1064/4 unit [47] 808/24 809/1 809/2 809/2 811/6 811/7 821/1 822/12 827/24 833/14 856/13 862/19 863/11 863/15 865/17 870/14 870/15 870/21 870/22 871/12 871/14 878/1 885/3 898/21 900/3 901/3 901/12 901/13 910/22 912/11 920/3 920/4 920/4 928/7 928/9 951/3 958/8 986/21 CHANCERY COURT REPORTERS 986/21 1007/10 1067/3 1071/20 1072/19 1076/21 1077/15 1078/14 1078/20 United [1] 872/17 unitholder [2] 785/3 983/18 unitholders [16] 858/18 858/19 880/11 900/16 900/16 903/8 915/16 918/7 922/3 923/2 941/5 948/3 971/18 972/6 983/19 984/5 units [9] 791/6 791/7 809/24 811/6 857/19 919/19 928/23 1072/10 1072/16 unless [14] 828/24 857/11 858/13 885/21 898/1 906/6 929/8 930/24 931/18 969/21 980/1 994/8 1059/7 1067/2 unlikely [7] 965/13 966/2 966/8 966/19 1077/15 1078/20 1079/6 unnoticed [1] 935/3 unstated [1] 961/11 unusual [1] 956/4 unwittingly [1] 951/18 update [2] 932/5 985/3 updated [4] 790/20 957/22 958/6 960/1 updating [1] 791/8 upset [3] 984/3 1047/21 1048/12 upward [2] 809/2 928/8 Urquhart [1] 787/5 use [13] 802/3 802/17 839/17 848/5 849/5 877/10 916/19 935/24 936/1 936/1 949/16 1029/12 1085/12 used [5] 789/18 849/9 877/17 881/18 1049/23 uses [1] 835/19 using [8] 799/14 849/4 859/10 897/15 931/3 1049/19 1049/21 1078/2 usually [1] 978/16 V vagaries [1] 800/14 valid [6] 823/10 825/2 903/18 903/24 904/5 904/7 validity [1] 1015/19 valuation [4] 820/23 820/24 908/9 1077/12 value [35] 808/24 809/19 821/5 821/24 829/24 863/21 863/24 (106) took... - value 819/5 819/20 832/19 851/23 852/21 987/24 value... [28] 871/6 1030/6 1030/17 1033/9 873/20 877/22 878/20 1034/6 1034/12 880/20 885/11 896/2 Volpert's [1] 797/20 898/19 899/23 912/11 785/18 volume [15] 912/13 919/19 920/3 797/16 797/24 798/2 920/11 928/7 930/3 798/3 798/5 798/7 957/18 957/18 957/19 798/11 798/11 798/12 957/19 958/5 995/19 798/17 800/13 801/10 1070/7 1070/12 851/7 851/8 1070/19 1071/9 1074/7 voluntarily [1] 850/11 1078/14 voluntary [3] 850/5 variety [1] 942/4 850/9 850/24 various [11] 877/23 volunteered [1] 1028/9 880/18 885/2 885/9 vote [6] 789/10 790/10 903/21 914/15 945/16 794/7 794/8 1067/6 957/17 1015/9 1028/1 1068/20 1064/19 voted [5] 792/21 VCL [1] 785/3 792/22 793/7 1080/12 verify [2] 869/15 1080/15 1069/13 version [2] 831/10 W 831/13 wagging [1] 951/5 versus [4] 868/16 wait [10] 804/22 805/6 1018/11 1033/18 861/6 870/18 883/17 1078/14 911/11 915/2 959/4 very -- the [1] 1017/10 979/24 1014/22 vested [2] 1065/20 waited [1] 998/16 1065/22 waiting [3] 825/5 vesting [1] 986/9 913/12 938/10 Vice [4] 785/15 929/23 waive [1] 829/2 1043/16 1068/14 waived [1] 968/24 video [14] 933/18 waiver [2] 969/5 933/21 939/20 940/23 969/15 941/16 942/1 943/14 walk [5] 832/15 832/17 943/20 1001/11 1016/18 1059/13 1002/12 1004/21 1059/14 1020/7 1020/8 1022/6 walked [3] 832/16 view [19] 838/8 901/15 861/8 1073/15 937/7 942/8 953/19 wall [1] 846/18 989/3 993/18 1003/20 walled [2] 1045/15 1033/16 1033/23 1051/2 1037/4 1037/6 1045/2 walling [1] 846/14 1045/6 1046/2 1051/14 wanted [39] 795/16 1051/21 1051/23 795/23 807/17 809/24 1065/16 826/4 834/23 837/23 viewed [3] 897/15 838/3 839/17 841/13 987/5 988/12 845/15 847/2 848/2 views [2] 952/5 956/2 848/20 849/2 851/3 violate [2] 823/18 855/8 867/6 868/11 823/21 880/2 906/16 909/11 violated [3] 1007/16 929/20 984/3 991/1 1047/22 1048/12 991/4 999/19 999/20 violating [1] 1047/23 1005/23 1017/22 violation [1] 795/14 1019/2 1028/2 1036/2 virtually [1] 869/2 1044/1 1046/20 vociferously [1] 1062/17 1074/22 890/12 1075/8 1075/10 voice [2] 832/12 wanting [1] 1075/7 941/18 wants [2] 1011/22 volatiles [1] 837/6 1034/12 volition [1] 845/19 war [1] 835/7 Volpert [21] 787/8 wasn't -- the [1] 813/22 814/13 815/6 1020/11 815/15 816/5 816/13 waste [4] 885/14 816/15 817/12 819/2 V 885/17 885/18 931/18 watch [2] 884/1 1020/6 water [7] 888/12 888/19 888/24 889/13 891/4 896/9 896/11 way [48] 806/16 820/2 826/10 836/5 841/5 860/5 867/17 883/5 883/14 890/20 892/24 899/2 899/18 902/5 902/18 904/9 913/7 924/3 929/7 935/20 939/9 941/12 943/1 943/10 950/7 955/18 959/5 966/7 969/10 986/8 988/21 1004/19 1018/14 1018/15 1029/18 1029/19 1029/20 1037/22 1041/19 1042/3 1058/13 1059/21 1066/4 1068/14 1072/18 1080/22 1082/7 1083/19 ways [1] 908/4 we'd [5] 810/7 888/24 936/19 1016/8 1016/9 we'll [35] 798/6 800/13 801/11 812/20 813/1 814/24 824/1 835/5 835/6 841/16 854/8 854/17 882/24 901/17 902/23 925/12 926/15 927/1 931/23 936/1 936/2 948/12 949/2 956/21 1008/13 1014/16 1017/6 1039/2 1043/10 1059/14 1062/1 1072/12 1086/2 1086/24 1087/10 we've [22] 829/11 841/22 842/16 851/12 851/12 851/15 872/9 887/19 907/8 928/19 933/14 934/20 937/21 956/16 971/10 971/15 997/12 1024/6 1024/8 1040/13 1066/7 1067/12 wealth [1] 834/11 week [4] 832/9 839/3 935/18 938/23 weekend [4] 939/1 1068/22 1070/2 1076/1 weekly [1] 848/14 weeks [5] 1024/24 1025/3 1063/3 1063/3 1067/5 weigh [1] 987/14 weird [1] 841/4 WEITMAN [1] 787/21 welcome [4] 788/3 855/2 860/9 994/16 well-credentialed [1] 978/12 well-intentioned [1] 978/12 went [25] 794/24 806/10 806/18 806/19 817/18 828/10 835/21 865/5 865/23 868/4 868/5 906/7 954/7 1015/21 1015/23 1016/7 1022/9 1022/15 1027/21 1027/24 1028/21 1039/9 1047/3 1052/8 1086/7 weren't [12] 795/10 844/11 847/23 857/13 871/7 886/9 901/8 1021/21 1039/8 1057/6 1069/18 1077/22 West [2] 832/24 839/8 what's [18] 798/13 803/14 809/17 817/1 861/13 885/8 911/11 952/17 970/22 977/13 991/17 991/20 994/11 1009/22 1068/6 1070/22 1084/4 1084/4 whatever [8] 849/24 857/20 937/23 950/10 951/1 969/24 981/14 1028/19 when [108] 788/11 790/10 792/21 797/21 799/9 804/8 807/12 816/24 819/10 822/19 823/7 825/21 832/10 833/7 833/12 833/23 835/15 838/16 840/12 840/17 844/24 845/2 849/7 854/11 859/3 859/19 859/21 861/3 861/16 864/22 865/5 865/7 868/9 871/1 880/17 881/10 883/14 891/21 892/11 896/22 897/22 903/7 903/12 912/3 916/18 917/10 923/15 925/15 929/6 932/3 932/5 938/18 938/22 944/2 947/3 949/16 951/6 951/8 951/16 951/21 953/12 956/15 958/11 959/2 975/11 981/6 987/23 988/18 988/20 989/2 993/13 993/24 995/13 998/10 998/24 1000/21 1003/17 1008/1 1009/18 1012/21 1015/4 1016/14 1017/16 1021/21 1022/2 1023/10 1024/15 1024/16 1030/22 1038/4 1039/10 1043/6 1045/10 1047/15 1049/13 1050/2 1050/2 1050/3 1050/4 1050/8 1052/19 1059/6 CHANCERY COURT REPORTERS 1061/14 1061/17 1064/22 1066/5 1081/14 1082/7 whether [50] 789/10 789/11 823/16 850/17 866/11 873/20 892/4 896/13 897/1 897/4 897/9 897/23 899/19 903/18 903/21 903/24 904/5 923/10 943/2 955/18 955/21 958/15 959/13 968/9 969/15 969/16 980/4 987/13 989/1 992/16 993/6 993/8 995/24 996/16 998/3 1001/21 1003/19 1027/4 1028/11 1028/17 1031/12 1033/17 1034/5 1042/2 1048/8 1056/3 1063/1 1075/2 1075/3 1075/3 while [17] 789/5 827/24 830/12 840/10 855/24 865/23 892/11 902/14 926/20 936/15 938/10 939/1 953/3 977/2 984/9 1016/17 1078/18 white [1] 911/3 Whoa [1] 887/12 whoever [1] 1015/19 whole [29] 797/19 802/22 805/7 810/21 832/5 841/13 850/4 903/22 923/4 926/21 927/22 930/4 938/23 941/1 941/8 941/13 951/19 958/7 958/14 958/18 958/24 961/10 976/20 986/21 1003/6 1004/12 1004/15 1065/21 1065/23 whole' [1] 957/20 whole-company [1] 927/22 whole-week [1] 938/23 whom [6] 869/8 893/6 948/9 988/18 1027/19 1049/11 whose [3] 877/15 995/19 1056/10 widely [1] 790/3 wife [4] 854/12 854/12 1025/9 1047/15 WIK [4] 799/13 801/3 853/1 1071/10 William [5] 786/14 788/1 897/24 974/23 1088/3 Williams [2] 785/11 785/22 willing [2] 844/9 979/16 wills [1] 1050/22 Wilmington [2] 785/12 785/23 (107) value... - Wilmington 833/12 833/18 835/15 841/5 845/14 855/18 win [4] 902/12 981/8 868/23 869/1 882/22 981/15 982/14 885/23 892/13 892/20 Wing [2] 787/12 787/18 916/8 930/22 943/6 wiped [1] 938/23 944/24 952/24 992/20 wire [2] 1025/21 996/3 997/9 1016/3 1026/3 1017/11 1033/1 1047/4 wise [1] 1037/12 1047/6 1047/7 withdraw [2] 970/17 works [6] 826/11 1010/22 849/11 910/6 979/6 withdrawn [1] 1052/11 1053/10 1053/11 withholding [1] 988/22 world [5] 802/22 within [4] 791/15 806/16 845/8 906/9 999/16 999/17 1061/7 1065/20 without [17] 811/4 worried [1] 1050/7 822/3 853/20 928/21 worries [1] 872/23 930/4 950/8 964/3 worry [1] 1067/9 992/12 1000/19 worst [2] 794/22 806/9 1010/12 1010/17 887/20 1016/9 1038/18 1047/2 worth [2] 937/23 1047/4 1048/15 wouldn't [13] 794/1 1073/20 811/17 846/19 847/12 witness [15] 817/8 859/8 895/14 895/19 855/5 861/7 861/7 906/5 929/18 997/24 922/9 933/8 933/19 1042/9 1050/5 1070/20 934/5 934/8 934/14 wrap [1] 805/17 934/15 935/1 936/8 write [27] 826/19 830/6 936/10 1058/8 863/9 870/7 870/12 witnesses [4] 934/10 881/13 891/2 891/14 935/5 938/9 1088/2 891/17 905/9 907/12 won [5] 835/7 845/8 911/21 911/23 917/6 846/3 872/11 872/13 919/17 919/24 921/3 won't [3] 829/5 921/16 922/13 929/10 1040/24 1074/12 953/3 979/4 980/2 wondering [1] 939/19 1025/15 1039/12 WORCESTER [1] 1040/9 1056/22 787/4 writes [28] 808/22 word [17] 814/23 816/16 822/11 852/1 862/16 869/14 869/20 877/20 880/9 884/21 897/15 950/16 959/19 888/1 888/10 910/20 984/12 1015/18 924/18 927/8 928/5 1016/11 1016/14 944/9 944/14 945/2 1063/5 1074/12 946/3 948/17 950/4 1074/14 1076/13 965/6 1044/12 1053/14 1081/11 1086/18 1054/15 1068/23 words [21] 828/7 1076/4 1076/18 1078/6 859/10 868/17 869/24 1084/9 870/12 871/23 872/2 writing [13] 799/12 905/3 931/3 958/17 826/18 827/2 852/23 960/14 968/16 974/24 867/10 883/16 929/5 1025/16 1048/19 945/24 953/11 974/6 1053/2 1057/13 979/2 1054/19 1079/2 1063/24 1066/13 written [7] 826/13 1066/21 1070/17 893/12 923/13 952/23 work [19] 789/7 790/1 953/1 975/4 999/11 808/10 810/20 835/21 wrong [11] 798/24 843/1 845/4 852/12 816/8 816/12 832/15 852/15 852/15 853/18 911/24 930/11 962/6 853/18 905/15 933/21 976/8 996/22 1044/1 943/9 946/7 1007/8 1078/16 1007/14 1049/4 wrote [30] 862/21 worked [8] 797/20 869/23 870/4 881/10 829/18 835/16 844/4 883/4 883/8 891/9 852/13 853/19 988/3 898/13 901/1 903/7 991/22 904/1 905/2 905/7 working [27] 833/8 W 905/8 911/16 922/19 927/7 981/7 982/1 982/1 982/6 1001/19 1002/7 1011/12 1036/3 1036/23 1039/16 1057/10 1058/19 1083/18 Wyatt [3] 792/7 866/8 866/11 X XI [1] 945/6 XIII [2] 927/15 1078/15 Y years [10] 806/10 847/9 857/18 974/20 988/3 1036/11 1036/18 1049/19 1049/21 1058/18 yesterday [25] 788/11 789/4 789/17 805/13 813/21 829/12 831/17 844/6 857/1 858/16 859/20 864/12 910/9 948/11 956/13 972/19 972/22 976/3 987/23 996/2 1029/23 1030/16 1053/15 1054/18 1073/15 yet [5] 909/21 914/12 916/2 987/16 1068/3 YOCH [1] 787/10 York [3] 786/12 787/5 787/22 you'd [15] 821/16 847/22 867/15 876/11 885/13 885/16 886/10 888/19 922/21 964/18 969/24 1012/2 1075/19 1081/2 1082/1 you'll [26] 836/20 836/21 860/12 868/15 877/4 887/17 894/5 894/9 907/12 912/8 924/8 924/17 940/14 945/22 954/23 957/15 961/20 968/15 976/22 977/7 979/5 984/20 986/7 1053/9 1053/13 1083/18 you-all [8] 855/22 861/1 872/20 932/1 932/2 1009/8 1087/5 1087/7 Young [1] 787/11 younger [1] 843/3 yourself [6] 876/17 884/18 909/22 931/16 959/3 1038/18 Yup [1] 917/2 Z zero [2] 800/22 861/22 CHANCERY COURT REPORTERS (108) win - zero