Kevin B. Kimberlin and Joni R. Steele, et al. - Page 11

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               Respondent’s contentions throughout the course of the                  
          litigation were inconsistent, confusing, and unconvincing.                  
          Initially, at trial, respondent contended that the payments made            
          pursuant to the SRA were payments for Ventures to refrain from              
          the performance of services, but he later contended that the                
          payments were made pursuant to an employment contract.  In his              
          opening brief, respondent changed his position and contended that           
          “Although Spencer Trask received a warrant to purchase 300,000              
          shares of Ciena Series B Stock, rather than the 150,000 shares of           
          Series A stock specified in the liquidated damages clause, the              
          warrants were granted as a result of the triggering of the                  
          liquidated damages clause.” (Emphasis added.)  None of these                
          positions, however, are supported by the facts.  In his reply               
          brief, respondent continued his quest for a plausible contention.           
          He first suggested that “the parties renegotiated a larger                  
          liquidated damages amount rather than settle a breach of contract           
          claim”, a contention squarely at odds with the plain language of            
          the SRA.  Ultimately, respondent formed a coherent, yet flimsy              
          contention, asserting that the warrants were transferred in                 
          connection with Ventures’ performance, rather than its refraining           
          from performance, of services.  In his reply brief, respondent              
               The essential facts in this case, which support a                      
               finding that the warrants were transferred in                          
               connection with the performance of services are: (1)                   

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