Jsc Transmashholding v. MillerMOTION for Summary JudgmentD.D.C.January 4, 2017IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JSC TRANSMASHHOLDING Plaintiff, -against- JAMES F. MILLER Defendant. Civ. No. 1:17-cv-00020 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff JSC Transmashholding ("TMH") hereby moves for summary judgment pursuant to Fed. R. Civ. P. 56. As provided by Local Civil Rule 7(h), this motion is accompanied by a statement of material facts as to which Plaintiff contends there is no genuine issue and by a memorandum of points and authorities and proposed order as required by LCvR 7(a), (b) and (c). For the reasons stated in the accompanying memorandum of points and authorities, there is no genuine dispute as to any material fact, and Til is entitled to judgment as a matter of law. Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 1 of 18 Dated: Washington, D.C. January 4, 2017 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP By: Matthew D. Slater A Member of the Firm (D.C. Bar No. 386986) 2000 Pennsylvania Avenue, NW Washington, D.C. 20009 Telephone: (202) 974-1500 Facsimile: (202) 974-1999 mslater@cgsh.com Attorney for Plaintгff JSC Transmashholding 2 Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 2 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JSC TRANSMASHHOLDING Plaintiff, -against- JAMES F. MILLER Defendant. Civ. No. 1:17-cv-00020 PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 3 of 18 TASLE OF CONTENTS PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 1 ARGUMENT 3 I. MILLER IS IN CLEAR BREACH OF THE SETTLEMENT AGREEMENT, CAUSING INJURY TO TMH 4 II. MILLER CONSENTED TO THE ENTRY OF JUDGMENT AGAINST HIM IF AN EVENT OF ACCELERATION HAS OCCURED 5 III. Til IS ENTITLED TO PREJUDGMENT INTEREST ON THE TOTAL AMOUNT OWED BY MILLER 6 CONCLUSION 7 Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 4 of 18 TABLE OF AUTHORITIES Cases Page(s) Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 3 Aspire Channel, LLC v. Penngood, LLC, 139 F. Supp. 3d 382, 389 (D.D.C. 2015) 6 Bembery v. District of Colиmbla, 758 A.2d 518 (D.C. 2000) 5 Celotex Corp. v. Catr•ett, 477 U.S. 317 (1.986) 3 Distrist Cablevision Ltd. Partnership v. Bassin, 828 A.2d 714 (D.C. 2003) 6-7 Lan Quest Corp. v. McManus & Darden LLP, 796 F. Supp. 2d 98 (D.D.С. 2011) 3,4 Medhin v. Hailu, 26 A.3d 307 (D.C. 2011) 5 Resolution. Trust Corp. v. Kling, Civ. A. No. 90-2436-LFO, 1991 WL 148566 (D.D.C. July 16, 1991) 6 Simon v. Circle Associates, Inc., 753 A.2d 1006 (D.C. 2000) 4 Steven R. Perles, P.C. v. Kagy, 473 F.3d 1244 (D.C. Cir. 2007) 4 Tsintolas Realty Co. v. Mendez, 984 A.2d 181 (D.C. 2009) 4 Statutes D.C. Code § 15-108 6 Rules Fed. R. Civ. p. 56(а) 3 -11- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 5 of 18 Plaintiff respectfully submits this memorandum of law in support of its motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. PRELIMINARY STATEMENT This is a straightforward motion seeking enforcement if a written Settlement Agreement under which Defendant has refused to pay and in which Defendant consented to the entry of judgment against him. For the reasons set forth below, Plaintiff is entitled to summary judgment. STATEMENT OF FACTS On November 21, 2013, JSC Transmashholding ("Til" or "Plaintiff') filed suit against James F. Miller ("Miller") in the United States District Court for the District of Columbia (the "Action"). Pl.'s Statement of Material Facts as to Which There Is Ni Genuine Issue to Be Tried ("Statement of Facts") ¶ 1. The Action, captioned JSC Transmashholding v. James F. Miller and Chris Taylor, Civ. No. 1:13-cv-01836, sought to recover the principal of and interest on $600,000.00 that had been stolen from Til in a complex conspiracy of which Miller was a beneficiary. Id On November 20, 2014, in order to resolve the Action, Til and Miller entered into a Settlement Agreement and Release ("the "Settlement Agreement"). Id. ¶ 2. In the Settlement Agreement, Miller recognized, acknowledged, and agreed that he owed Til $636,524.99 as of the date of the Settlement Agreement. Id. ¶ 3. The Settlement Agreement, however, provided for Miller to pay a Discounted Amount of $600,000.00, plus interest thereon of 8.0% per annum (compounded annually on June 9), in fifty-one (51) monthly installments beginning January 1, 2015 and ending on March 1, 2020. Id. ¶ 4. Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 6 of 18 In consideration for Miller's promise to pay, Til dismissed the Action without prejudice on January 20, 2015. Id. ¶ 5. Under the terms of the Settlement Agreement, Miller agreed to make each monthly payment on the first day of the respective calendar month. Id. ¶ 6. If Miller was more than fifteen (15) calendar days late in making any monthly payment when due, and Til gave written notice of acceleration, the entire then-outstanding "Total Amount" - calculated as described below - would become immediately due and payable. Id. ¶ 7. Since the parties entered into the Settlement Agreement, Miller has made twenty-three (23) payments in respect of twenty (20) months, ending with the payment due August 1, 2016. Id. ¶ 8. TMH has been patient with and attempted to accommodate Miller. Since the payment due August 1, 2016 was made, however, Miller has completely ceased making payments, and has made no payment on the amounts due on September 1, October 1, November 1, and December 1, 2016, and January 1, 2017. Id. ¶ 9. Left with no other option, on December 2, 2016, TIl delivered to Miller written notice of acceleration of the debt (the "Notice of Acceleration"). Id. ¶ 10. The delivery of the Notice of Acceleration, coupled with Miller's failure to make these payments within fifteen (15) calendar days of the date due, constituted an Event of Acceleration under the Settlement Agreement, making the outstanding Total Amount immediately due and payable. Id. ¶ 11. As of the date of the Notice of Acceleration, the Total Amount was $595,037.44. This amount is the sum of (i) the then-outstanding principal amount due on the Discounted Amount of $600,000.00 following payment of the amount due on August 1, 2016, (ii) the accrued and unpaid interest at 8.0% per annum on this amount through the date of the Notice of Acceleration, (iii) the pre- Settlement Agreement interest of $36,524.99 on $600,000.00, which was excluded from the -2- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 7 of 18 Discounted Amount owed by Miller under the terms of the Settlement Agreement except in the case of acceleration, and (iv) interest on that excluded amount at 8.0% per annum (compounded annually on June 9 of each year) through the date of the Notice of Acceleration. Id. ¶ 12. Miller has made no payment to Til since the Event of Acceleration occurred. Id ¶ 13. In the Settlement Agreement, the parties agreed that, if an Event of Acceleration occurs, Miller consents to the entry of a final, binding, non-appealable judgment by the United States District Court for the District of Columbia in favor of ТМН and against Miller in the full amount of the then-outstanding Total Amount, without the need for any proceedings. Id. ¶ 14. Since the date of the Notice of Acceleration, the Total Amount owed by Miller to TMI-ј has increased by $128.64 per day, which amount equals the additional interest on unpaid principal and previously compounded interest accrued at 8.0% per annum since the date of the Notice of Acceleration, and, as of the date of this fling, totals $599,282.56. Id. ¶ 15. ARGUMENT Under Federal Rule of Civil Procedure 5б(a), a court shall grant summary judgment where "there is no genuine dispute as to any material fact and the tuvant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Summary judgment may be appropriately granted before discovery "where the moving party can demonstrate that there is no disputed issue of material fact." Lau Quest Corp. v. McManus & Darden LLP, 796 F. Supp. 2d 98, 101 (D.D.C. 2011). -3- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 8 of 18 I. MILLER IS IN CLEAR BREACH OF THE SETTLEMENT AGREEMENT, CAUSING INJURY TO TMH A Plaintiff is entitled to prevail on a claim of breach of contract when it establishes "(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach." Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). These elements are easily met here, and the Plaintiff is entitled to relief. Under District of Columbia law, "'settlement agreements are determined according to principles of contract law." Simon v. Circle Assocs., Inc., 753 A.2d 1006, 1012 (D.C. 2000) (quoting Sims v. Westminster Investing Corp., 648 A.2d 940, 942 (D.C. 1994)). A contract is valid and enforceable when it reflects both "(1) intention of the parties to be bound; and (2) agreement as to all material terms." Steven R. Perles, P. C. v. Kagy, 473 F.3d 1244, 1249 (D.C. Cir. 2007). The parties have demonstrated their intention to be bound by the written Settlement Agreement at issue in this case through their actions in accordance with it, namely the signing of the Settlement Agreement, the twenty-three (23) payments Miller made pursuant to the Settlement Agreement, and the filing of the Stipulation of Voluntary Dismissal by Til. The Settlement Agreement also contains the necessary definite material terms regarding subject matter, payment terms, duration, and the actions required of each party to make "the promises and performance to be rendered by each party ... reasonably certain." Lan Quest Corp., 796 F. Supp. 2d at 102 (citing EastBanc Inc. v. Georgetown ParkAssocs. II, L.P., 940 A.2d 996 (D.C. 2008)). The Settlement Agreement specifies in detail what payments Miller was obligated to make and on precisely what date he was obligated to make them. In consideration for these payments, it specified that Til was to file a Stipulation of Voluntary Dismissal in the Action. .4. Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 9 of 18 Breach occurs when "a party fails to perfoгпΡi when performance is due, i.e., upon a party's unjustified failure to perform all or any part of what is promised in а contract entitling the injured party to damages." Medhin v. Hailu, 26 A.3d 307, 310 (D.C. 2011) (internal citation and quotation marks omitted); see also Beni bery v. District of Columbia, 758 A.2d 518, 520 (D.C. 2000) ("A breach is ̀ an unjustified failure to perform all or any part of what is promised in a contact entitling the injured party to damages. ") (quoting Fowler v. A & A Co., 262 A.2d 344, 347 (D.C. 1970)). Miller's duty to make the specified payments to TMH came due on the first calendar day of each month as specified in the Settlement Agreement, and his failure to make the required payments, and in particular any payment at all since September 9, 2016, constitutes an unjustified failure to perform. Indeed, Miller does not dispute that he has not met his duty under the Settlement Agreement to make all of the specified payments. Miller's failure to perform in accordance with his duties under the Settlement Agreement caused injury to TMH in the amount of the unpaid portion of the Total Amount owed by Miller under the Settlement Agreement. II. MILLER CONSENTED TO THE ENTRY OF JUDGMENT AGAINST HIM IF AN EVENT OF ACCELERATION HAS OCCURED As explained above, Plaintiff's delivery of the Notice of Acceleration, coupled with Miller's prior failure to make payments due under the Settlement Agreement within fifteen (15) calendar days of the date due, constituted an Event of Acceleration under the Settlement Agreement, making the outstanding Total Amount immediately due and payable. Statement of Facts ¶ 11. Under the terms of the Settlement Agreement, if an Event of Acceleration occurs, Miller consents to the entry of a final, binding, non-appealable judgment in favor of Til and against Miller in the full amount of the then-outstanding Total Amount, without the need for any -5- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 10 of 18 proceedings. Id. ¶ 14. As there can be no dispute as to the enforceability of the contract or the occurrence of an Event of Acceleration, the Court should enter judgment in favor of TMH and against Miller in the full amount of the then-outstanding Total Amount in accordance with this provision of the Settlement Agreement. See, e.g., Resolution Trust Corp. v. Kling, Civ. A. No. 90-2436-LFO, 1991 WL 148566, at *3 (D.D.C. July 16, 1991) (granting summary judgment where defendant "agreed to confess judgment in the event of default"). III. Til IS ENTITLED TO PREJUDGMENT INTEREST ON THE TOTAL AMOUNT OWED BY MILLER Til is entitled under the law of the District of Columbia to prejudgment interest on the Total Amount owed by Miller under the Settlement Agreement pursuant to D.C. Code § 15-108, which provides; In an action in the United States District Court for the District of Columbia or the Superior Court of the District of Columbia to recover a liquidated debt on which interest is payable by contract or by law or usage the judgment for the plaintiff shall include interest on the principal debt from the time when it was due and payable, at the rate fixed by the contract, if any, until paid. See also Aspire Channel, LLC v. Penngооd, LLC, 139 F. Supp. 3d 382, 389 (D.D.C. 2015) (finding that plaintiff was entitled to prejudgment interest where it had lost use of "an easily ascertainable sum certain"). The District of Columbia Court of Appeals has held that, under such circumstances, "prejudgment interest is mandatory." Dist. Cablevision Ltd. P'shz v. Bassin, 828 A.2d 714, 731 (D.C. 2003) (citing Nolen v. District of Columbia, 726 A.2d 182, 184 (D.C. 1999)). Such interest "is an element of complete compensation to a creditor for the loss of use of money that the debtor wrongfully with olds," and "should be generously construed so that the wronged party can be made whole." District Cablevision, 828 A.2d at 732 (quotation marks and citation omitted). -б- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 11 of 18 Because the Settlement Agreement provides for annual compound interest of 8.0%, the Court should award pre- and post judgment interest at that rate pursuant to D.C. Code § 15-108. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that the Court grant summary judgment in its favor, and award Plaintiff $599,282.56, plus pre- and post judgment interest at 8.0% per annum (compounded annually) on that amount, attorney's fees, and costs, as well as such other relief as may be just and proper. -7- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 12 of 18 Dated: Washington, D.C. January 4, 2017 Respectfully submitted, CLEARY GOTTLIEв STEEN & HAMILTON LLP I By: U Matthew D. Sat r A Member of the Firm (D.C. Bar No. 386986) 2000 Pennsylvania Avenue, NW Washington, D.C. 20009 Telephone: (202) 974-1500 Facsimile: (202) 974 -1999 mslater@cgsh.com Attot ney for Plaintiff,ISC Transmashholding -8- Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 13 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JSC TØNSMASHHOLDING Plaintiff, -against- JAMES F. MILLER Defendant. Civ. No. 1:17-cv-00020 PLAINTIFF'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED Pursuant to Local Civil Rule 7(h)(1) of the United States District Court for the District of Columbia, Plaintiff JSC Transmashholding ("TIR" or "Plaintiff') provides the following statement of undisputed materials facts as to which there is no genuine issue to be fried. 1. On November 21, 2013, TIR filed an action against James F. Miller ("Miller") in the United States District Court for the District of Columbia, captioned ,SC Transmashholding v. James F. Miller and Chris Taylor, Civ. No. 1:13-cv-01836 (the "Action"), to recover the principal of and interest on $600,000.00 that had been stolen from TMH in a complex conspiracy of which Miller was a beneficiary. See Settlement Agreement and Release (Nov. 20, 2014) (Ex. 1 at 2).1 Unless otherwise indicated, all documents cited in this statement are attached as exhibits to the Declaration of Matthew D. slater in support of Plaintiff's Motion for Summary Judgment, dated January 4, 2017, and are cited in this statement as "Ex. ." Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 14 of 18 2. On November 20, 2014, Til and Miller entered into a Settlement Agreement and Release (the "Settlement Agreement") to resolve the Action. See Settlement Agreement and Release (Nov. 20, 2014) (Ex. 1); Declaration of Evgeniy Karaman, dated January 3, 2017 (Ex. 2 ¶ 2). 3. In the Settlement Agreement, Miller recognized, acknowledged, and agreed that he owed Til $636,524.99 as of the date of the Settlement Agreement. Ex. 1 ¶ 1. 4. In the Settlement Agreement, Til agreed to accept, and Miller agreed to pay, а Discounted Amount of $600,000.00, plus interest thereon of 8.0% per annum (compounded annually on June 9), to be paid in fifty-one (51) monthly installments beginning January 1, 2015 and ending on March 1, 2020. Id. ¶¶ 2-3. 5. In consideration of Miller's promise to pay, TMl dismissed the Action without prejudice on January 20, 2015. See Stipulation of Voluntary Dismissal, ,ISC Transmashholding v. Miller, Civ. No. 1:13-cv-01836 (D.D.C. Jan. 20, 2015) (Ex. 3). б. Under the terms of the Settlement Agreement, Miller agreed to make each monthly payment on the first day of the respective calendar month. Ex. 1 ¶ 3. 7. In the Settlement Agreement, Miller agreed that, if he was more than fifteen (15) calendar days late in making any monthly payment when due and TMH gave written notice of acceleration, the entire then-outstanding "Total Amount" - calculated as described in paragraph 12 below - would "become automatically and immediately due and payable." Id. ¶ 5. 2 Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 15 of 18 8. Since signing the Settlement Agreement, Miller made twenty-three (23) payments in respect of twenty (20) months, ending with the payment due August 1, 2016. See Ex. 2 ¶ 3, Appendix I. 9. Since making the payment due August 1, 2016, however, Miller has made no payment on the amounts due on September 1, October 1, November 1, and December 1, 2016, and January 1, 2017. Id. ¶ 4. 10. On December 2, 2016, in accordance with paragraph 5 of the Settlement Agreement, TRH delivered to 111er written notice of acceleration of the debt (the "Notice of Acceleration"). See Correspondence from Matthew D. Slater to James F. Miller (Dec. 2, 2016) (Ex. 4); Ex. 2 ¶5. 11. Miller's failure to make these payments within fifteen (15) calendar days of the date due under the Settlement Agreement and TMH's written Notice of Acceleration constitute an Event of Acceleration under the Settlement Agreement, making the outstanding Total Amount immediately due and payable. See Ex. 1 ¶ 5. 12. The Total Amount due as of the date of the Notice of Acceleration was $595,037.44. This amount is the sum of (i) the then-outstanding principal amount due on the Discounted Amount of $600,000.00 following payment of the amount due on August 1, 2016, (ii) the accrued and unpaid interest at 8.0% per annum on this amount through the date of the Notice of Acceleration, (iii) the pre-Settlement Agreement interest of $36,52499 on $600,000.00, which was excluded from the Discounted Amount owed by Miller under the terms of the Settlement Agreement except in the case of acceleration, and (iv) interest on that excluded 3 Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 16 of 18 amount at 8.0% per annum (compounded annually on June 9 of each year) through the date of the Notice of Acceleration. See Ex. 4; Ex. 2 ¶ 6. 13. Miller has made no payment to Til since the date of the Notice of Acceleration. See Ex. 2 ¶ 7. 14. The Settlement Agreement provides that, if an Event of Acceleration occurs, Miller consents to the entry of a final, binding, non-appealable judgment by the United States District Court for the District of Columbia in favor of Til and against Miller in the full amount of the then-outstanding Total Amount, without the need for any proceedings. See Ex. 1 ¶ б. 15. The outstanding Total Amount has increased since the date of the Notice of Acceleration by $128.64 per day, which amount equals the additional interest on unpaid principal and previously compounded interest accrued at 8.0% per armsrum since the date of the Notice of Acceleration. Speсifiсаllу, this additional interest of $128.64 per day equals daily interest at 0.022% (8.0% / 365 days) per day on $578,888.74, which represents the sum of the unpaid principal of $539,441.75 and previously capitalized interest of $39,446.99. As of the date of this filing, the outstanding Total Amount totals $599,282.56. See Ex. 4 at Annex I; Ex. 2 ¶ 8. 4 Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 17 of 18 Dated: Washington, D.C. January 4, 2017 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP By: Matthew D. Slater A Member of the Firm (D.C. Bar No. 386986) 2000 Pennsylvania Avenue, NW Washington, D.C. 20009 Telephone: (202) 974.1500 Facsimile: (202) 974-1999 mslater@cgsh.com Attorney for PlaintiffJSC Transmashholding 5 Case 1:17-cv-00020-RBW Document 4 Filed 01/04/17 Page 18 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JSC TRANSMASHHOLDING Plaintiff, -against- JAMES F. MILLER Defendant. Civ. No. 1:17-cv-00020 DECLARATION OF MATTHEW D. SLATER IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF JSC TRANSMASHHOLDING MATTHEW D. SLATER hereby declares pursuant to 28 U.S.C. § 1746: 1. I am an attorney duly admitted to this Court and a partner of the law firm Cleary Gottlieb Steen & Hamilton LLP, counsel to Plaintiff JSC Transmashholding in this action. 2. Attached hereto are true and correct copies of the following documents, which are referenced in Plaintiff's Memorandum of Law in Support of Its Motion for Summary Judgment and Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue to Be Tried: EXHIBIT 1: Settlement Agreement and Release (Nov. 20, 2014). EXHIBIT 2: Declaration of Evgeniy Karaman in Support of Plaintiff's Motion for Summary Judgment (Jan. 3, 2017). EXHIBIT 3: Stipulation of Voluntary Dismissal, JSC Transnºashholding v. Miller, Civ. No. 1:13-cv-01836 (D.D.C. Jan. 20, 2015). EXHIBIT 4: Correspondence from Matthew D. Slater to James F. Miller (Dec. 2, 2016). Case 1:17-cv-00020-RBW Document 4-1 Filed 01/04/17 Page 1 of 2 ) atthew D. Slater A Member of the Firm (D.C. Bar No. 386986) By: 3. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated: Washington, D.C. January 4, 2017 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP 2000 Pennsylvania Avenue, NW Washington, D.C. 20009 Telephone: (202) 974-1500 Facsimile: (202) 974-1999 mslater@cgsh.com Attorney for Plaintiff TSC Transinashholding 2 Case 1:17-cv-00020-RBW Document 4-1 Filed 01/04/17 Page 2 of 2 EXHIBIT 1 Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 1 of 15 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the “Agreement”) is entered into by and between JSC Transmashholding (“TMH”) and James F. Miller (“Mr. Miller”) (collectively, the “Settling Parties”). WHEREAS, on or around June 3, 2011, without knowledge or approval of TMH’s proper management, board of directors, or its shareholders, a rogue employee conspired with Richcom International Asia Ltd. and its principals (together, “Richcom”) in causing €20 million to be wrongfully transferred from TMH’s account at Clariden Leu Bank in Zurich, Switzerland, to Richcom’s account at HSBC Bank in Hong Kong; WHEREAS, on June 5, 2011, Chris Taylor (“Mr. Taylor”), a Richcom director, sent an email to William Tao, another Richcom director, requesting that Richcom lend Mr. Miller $600,000; WHEREAS, on June 6, 2011, to document this purported loan, Mr. Miller signed a promissory note in favor of Mr. Taylor, promising to pay Mr. Taylor $600,000 and interest at the rate of one-year LIBOR as of June 6, 2011, plus 1.0% (the “Promissory Note”); WHEREAS, on June 7, 2011, Richcom held a board meeting in which it was resolved that Richcom would lend Mr. Miller $600,000 as a personal loan in connection with the Promissory Note, and that the funds would be taken from the €20 million received from TMH; WHEREAS, on June 8, 2011, Richcom wrongfully transferred $600,000 from its account at HSBC Bank in Hong Kong to Mr. Miller’s account at SunTrust Bank in Washington, D.C., which Mr. Miller received on June 9, 2011; WHEREAS, on February 8, 2012, after having discovered that Mr. Miller received the $600,000 from Richcom as a transfer derived from the €20 million stolen from TMH, TMH contacted Mr. Miller and demanded the return of the $600,000; Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 2 of 15 2 WHEREAS, after unsuccessful attempts to seek the return of the $600,000 from Mr. Miller, TMH filed an action on November 21, 2013, against Mr. Miller and Mr. Taylor in the United States District Court for the District of Columbia, captioned JSC Transmashholding v. James F. Miller and Chris Taylor, Civ. No. 1:13-cv-01836 (the “Action”), asserting claims for conversion and unjust enrichment in connection with the $600,000 that was stolen from TMH and wrongfully transferred by Mr. Taylor to Mr. Miller (the “Claims”); WHEREAS, the Settling Parties wish to resolve the Claims amicably and without resort to the time, effort, and expense of additional litigation; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Settling Parties agree as follows: 1. Recognition of Debt Mr. Miller recognizes, acknowledges, and agrees that he owes TMH the sum of (i) the principal amount of $600,000 in respect of funds belonging to TMH (the “TMH Funds”) that he received on June 9, 2011, in connection with the Promissory Note, plus (ii) accrued interest thereon from and including June 9, 2011, to but excluding the date of repayment, at the rate of 1.7269% per annum1 to November 20, 2014, and 8.0% per annum thereafter, as compounded annually on June 9 of each year (together, the “Total Amount”). As of November 20, 2014, the Total Amount due to TMH is $636,524.99. For the avoidance of doubt, interest at a rate of 8.0% per annum, compounded annually on June 9 of each year, will continue to accrue on unpaid principal and capitalized interest from November 20, 2014, until the Total Amount is paid in full. 1 One-year LIBOR as of June 9, 2011 plus 1.0 %, per the terms set forth in the Promissory Note. Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 3 of 15 3 Mr. Miller acknowledges and agrees that no other party, and notably Mr. Taylor, has any interest in the TMH Funds, the Promissory Note, or the Total Amount, and Mr. Miller agrees not to make any payment in respect of the TMH Funds, the Promissory Note, the Total Amount, or interest thereon to any person other than TMH. 2. Discounted Amount Despite the above, if Mr. Miller makes due and punctual payment of all amounts provided below, he need not pay the Total Amount, but only a discounted amount (the “Discounted Amount”) equal to the sum of (i) the principal amount of $600,000, plus (ii) interest thereon from and including November 20, 2014, to and excluding the date of final principal payment at a rate of 8.0% per annum. Upon payment in full of the Discounted Amount, the Total Amount will be deemed fully discharged. 3. Payment Schedule Mr. Miller agrees to pay on the first day of each calendar month: a) $5,000 for the twelve (12) months starting with a first payment on January 1, 2015; b) $10,000 for the twelve (12) months starting with a payment on January 1, 2016; and c) $15,000 for each month starting with a payment on January 1, 2017, and continuing each month until the Discounted Amount has been paid in full. Each monthly payment will be allocated first, to the payment of accrued and unpaid interest, and second, to the repayment of principal. For purposes of this determination, interest will be calculated in arrears as of the first day of each month on the principal amount Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 4 of 15 4 outstanding following the payment on the first day of the preceding month, at the rate of 0.667% per month (one-twelfth of 8.0% per annum) on the basis of 12 equal months of 30 days; provided that the initial interest amount due on January 1, 2015 will be equal to $5469.40 (0.667% on $600,000 for one month plus 11/30 of a month from and including November 20, 2014). Annex A sets forth the amount of interest due and the remaining outstanding principal amount (following payment) as of each first day of each calendar month from January 1, 2015 to the date of final payment, assuming due and punctual payment of each monthly amount. All payments shall be made by wire transfer of immediately available funds to a TMH bank account to be notified by TMH from time to time. Mr. Miller will have the right to prepay the Discounted Amount in whole or in part at any time, without penalty. 4. Withdrawal of Complaint TMH agrees to withdraw its complaint against Mr. Miller in the Action without prejudice and further agrees not to re-file the complaint or otherwise initiate proceedings against Mr. Miller unless an Event of Acceleration (defined below) occurs. Within five (5) business days of TMH receiving the first payment on January 1, 2015, TMH shall file a voluntary Notice of Dismissal as to Mr. Miller under Federal Rule of Civil Procedure 41, dismissing the Action without prejudice. 5. Acceleration of Total Amount If any of the following events (each, an “Event of Acceleration”) occurs, the then- outstanding Total Amount will become automatically and immediately due and payable: a) Mr. Miller is more than fifteen (15) calendar days late in making any monthly payment when due and TMH gives written notice of acceleration; Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 5 of 15 5 b) Mr. Miller becomes the object of voluntary or involuntary bankruptcy, receivership, or insolvency proceedings; or c) Mr. Miller dies or becomes disabled. If he is physically capable, Mr. Miller will notify TMH promptly of the occurrence of any Event of Acceleration. 6. Consent to Entry of Judgment If an Event of Acceleration occurs, Mr. Miller consents to the entry of a final, binding, non-appealable judgment in favor of TMH and against Mr. Miller in the full amount of the then-outstanding Total Amount, without the need for any proceedings. 7. Certified Personal Financial Statements Until the Discounted Amount (or Total Amount, as the case may be) is paid in full, Mr. Miller agrees to provide to TMH, within three (3) business days following the end of each calendar quarter, personal financial statements comprising a balance sheet and an income statement as of such quarter end, certified by him as true and correct. 8. Release upon Full Payment Upon full payment of the Discounted Amount (or Total Amount, as the case may be), TMH shall release and discharge Mr. Miller, his heirs, executors, administrators, successors, assigns, and agents from any and all claims, liability, and damages of any kind, in contract, tort, or otherwise, which were or could have been asserted against him relating to the Claims. 9. Representations and Warranties (a) TMH represents and warrants: (i) that TMH owns the Claims hereof and that it has not encumbered or agreed to encumber or assigned or agreed to assign such Claims in whole or in part, by contract or by operation of law (including by way of subrogation) to any Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 6 of 15 6 other person or entity; and (ii) that TMH has the right and authority to enter into the Agreement and to undertake all of the duties and obligations created hereunder. (b) Mr. Miller represents and warrants: (i) that the personal financial statement Mr. Miller provided to TMH on October 30, 2014 is true and correct; and (ii) that Mr. Miller has the right and authority to enter into the Agreement and to undertake all of the duties and obligations created hereunder. 10. Choice of Law and Forum The Agreement shall be governed by, and construed in accordance with, the laws of the District of Columbia, without regard to the conflicts of law provisions thereof. The Settling Parties consent to the continuing jurisdiction of the United States District Court for the District of Columbia in any and all actions or proceedings relating to the Claims, including but not limited to the enforcement of the Agreement. 11. Who is Bound The Agreement shall bind and inure to the benefit of the Settling Parties and their respective officers, directors, employees, agents, heirs, executors, administrators, successors, and assigns, wherever the context requires or admits. 12. Notice All notices, requests, claims, demands, and other communications under the Agreement must be in writing and will be deemed given if delivered personally or sent by a nationally recognized overnight courier service (providing proof of delivery) to the Settling Parties at the following addresses (or at such other address for a Settling Party as is specified by like notice): Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 7 of 15 7 If to TMH: Evgeniy Karaman JSC Transmashholding Butyrsky Val Street, 26, Bldg. 1, Moscow, Russia 127055 With a copy to: Michael R. Lazerwitz Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 If to Mr. Miller: James F. Miller 610 Kings Cloister Circle Alexandria, VA 22302 13. Entire Agreement The Agreement contains the entire understanding between the Settling Parties. All prior discussions and agreements between the Settling Parties are merged herein. The Settling Parties acknowledge, warrant, and represent that no representations, warranties, covenants, promises, or undertakings except those expressly set forth herein have been made by either party. 14. Modification and Waiver The Agreement may not be changed or modified except in a writing signed by the Settling Parties. No provisions of the Agreement may be waived unless in writing, signed by the party to be charged therewith. Waiver of any one provision shall not be deemed to be a waiver of any other provision. Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 8 of 15 8 15. Counterparts The Agreement may be executed in two counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Photocopied, scanned, or facsimiled copies of an original signature shall be deemed to be originally executed counterparts of the Agreement. 16. Headings The headings contained in the Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of the Agreement. 17. Adherence to Terms The failure of any party to the Agreement to insist upon strict adherence to any term of the Agreement will not be considered a waiver of any right arising thereunder or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of the Agreement. 18. Severability In the event that any provision of the Agreement is held by a court to be illegal, invalid, or unenforceable, the validity of the remaining provisions shall not be adversely affected. 19. Ambiguities The Settling Parties acknowledge that they have participated fully in the review and revision of the Agreement, and accordingly, agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting the Agreement. Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 9 of 15 9 20. Opportunity to Consult Advisors The Settling Parties acknowledge that they have had reasonable opportunity to consult with attorneys or other advisors of their own choosing before executing the Agreement. 21. No Duress or Compulsion The Settling Parties acknowledge that they freely and voluntarily enter the Agreement without any degree of duress or compulsion. [This portion of the page intentionally left blank.] Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 10 of 15 |ы ш]тшв55 шнвквог, 1ье 5е1111п9 Рат1|е5 ьеге|о ьауе ехесц1еа {ье А8геегпеп1ьу а{лх1п81ье;г 5|811а1шге5 апа 1ье 0а1е о'ехесц6оп !.'ьеге !па|оа1еа ье1оц?' .13€ 1тапзгпаз1'т1то!6!п9 в\ 8ф? т\т\е: А т|огп е9 - ] а: - /ае| 0а1е: .1атпез Р. 1т4!11ет ву оав| ,2. :^'т", 'а' 10 Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 11 of 15 IN WITNESS WHEREOF, the Settling Parties hereto have executed the Agreement by affixing their signatures and the date of execution where indicated below. JSC Transmashholding By __ _ _ _ _ _ _ _ _ _ _ _ Name:________________ Title: ________________ Date:__ _ _ _ _ _ _ _ _ _ _ _ _ _ James F. killer By Date: U.2101 4 Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 12 of 15 11 ANNEX A Amount of Interest Due and Remaining Outstanding Principal Amount (Following Payment) as of Each First Day of Each Calendar Month from January 1, 2015 to Date of Final Payment Payment Date Interest Accr.2 Payment Outst. Principal 11/20/2014 $600,000.00 1/1/2015 $5,469.40 $5,000.00 $600,469.40 2/1/2015 $4,005.13 $5,000.00 $599,474.53 3/1/2015 $3,998.50 $5,000.00 $598,473.03 4/1/2015 $3,991.82 $5,000.00 $597,464.84 5/1/2015 $3,985.09 $5,000.00 $596,449.93 6/1/2015 $3,978.32 $5,000.00 $595,428.25 7/1/2015 $3,971.51 $5,000.00 $594,399.76 8/1/2015 $3,964.65 $5,000.00 $593,364.41 9/1/2015 $3,957.74 $5,000.00 $592,322.15 10/1/2015 $3,950.79 $5,000.00 $591,272.93 11/1/2015 $3,943.79 $5,000.00 $590,216.73 12/1/2015 $3,936.75 $5,000.00 $589,153.47 1/1/2016 $3,929.65 $10,000.00 $583,083.12 2/1/2016 $3,889.16 $10,000.00 $576,972.29 3/1/2016 $3,848.41 $10,000.00 $570,820.69 4/1/2016 $3,807.37 $10,000.00 $564,628.07 5/1/2016 $3,766.07 $10,000.00 $558,394.14 6/1/2016 $3,724.49 $10,000.00 $552,118.63 2 Calculated using interest rate of 0.667% per month. Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 13 of 15 12 7/1/2016 $3,682.63 $10,000.00 $545,801.26 8/1/2016 $3,640.49 $10,000.00 $539,441.75 9/1/2016 $3,598.08 $10,000.00 $533,039.83 10/1/2016 $3,555.38 $10,000.00 $526,595.20 11/1/2016 $3,512.39 $10,000.00 $520,107.59 12/1/2016 $3,469.12 $10,000.00 $513,576.71 1/1/2017 $3,425.56 $15,000.00 $502,002.27 2/1/2017 $3,348.36 $15,000.00 $490,350.62 3/1/2017 $3,270.64 $15,000.00 $478,621.26 4/1/2017 $3,192.40 $15,000.00 $466,813.67 5/1/2017 $3,113.65 $15,000.00 $454,927.31 6/1/2017 $3,034.37 $15,000.00 $442,961.68 7/1/2017 $2,954.55 $15,000.00 $430,916.23 8/1/2017 $2,874.21 $15,000.00 $418,790.44 9/1/2017 $2,793.33 $15,000.00 $406,583.78 10/1/2017 $2,711.91 $15,000.00 $394,295.69 11/1/2017 $2,629.95 $15,000.00 $381,925.64 12/1/2017 $2,547.44 $15,000.00 $369,473.09 1/1/2018 $2,464.39 $15,000.00 $356,937.47 2/1/2018 $2,380.77 $15,000.00 $344,318.24 3/1/2018 $2,296.60 $15,000.00 $331,614.85 4/1/2018 $2,211.87 $15,000.00 $318,826.72 5/1/2018 $2,126.57 $15,000.00 $305,953.29 6/1/2018 $2,040.71 $15,000.00 $292,994.00 Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 14 of 15 13 7/1/2018 $1,954.27 $15,000.00 $279,948.27 8/1/2018 $1,867.25 $15,000.00 $266,815.53 9/1/2018 $1,779.66 $15,000.00 $253,595.19 10/1/2018 $1,691.48 $15,000.00 $240,286.67 11/1/2018 $1,602.71 $15,000.00 $226,889.38 12/1/2018 $1,513.35 $15,000.00 $213,402.73 1/1/2019 $1,423.40 $15,000.00 $199,826.13 2/1/2019 $1,332.84 $15,000.00 $186,158.97 3/1/2019 $1,241.68 $15,000.00 $172,400.65 4/1/2019 $1,149.91 $15,000.00 $158,550.56 5/1/2019 $1,057.53 $15,000.00 $144,608.09 6/1/2019 $964.54 $15,000.00 $130,572.63 7/1/2019 $870.92 $15,000.00 $116,443.55 8/1/2019 $776.68 $15,000.00 $102,220.22 9/1/2019 $681.81 $15,000.00 $87,902.03 10/1/2019 $586.31 $15,000.00 $73,488.34 11/1/2019 $490.17 $15,000.00 $58,978.51 12/1/2019 $393.39 $15,000.00 $44,371.89 1/1/2020 $295.96 $15,000.00 $29,667.85 2/1/2020 $197.88 $15,000.00 $14,865.74 3/1/2020 $99.15 $14,964.89 $ - Case 1:17-cv-00020-RBW Document 4-2 Filed 01/04/17 Page 15 of 15 ЕХНІВІТ 2 Case 1:17-cv-00020-RBW Document 4-3 Filed 01/04/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JSC TRANSMASHHOLDING Plaintiff, -against- JAMES F. MILLER Defendant. Civ. No. DECLARATION OF EVGENIY KARAMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT EVGENIY KARAMAN hereby declares pursuant to 28 U.S.C. § 1746: 1. I am the Deputy General Director of Finance at JSC Transmashholding ("Til"). 2. On November 20, 2014, TMН and James F. Miller ("Miller") entered into a Settlement Agreement and Release (the "Settlement Agreement") to resolve an action filed against Miller by Til in the United States District Court for the District of Columbia, captioned .ISC Transmashholding v. James F. Miller and Chris Taylor, Civ. No. 1:13-cv-01836 (the "Action"). 3. Miller has made payments to Til in respect of twenty (20) months under the Settlement Agreement, ending with the payment due August 1, 2016, which are detailed in Appendix Ito this Declaration. 4. Since making the payment due in respect of August 1, Miller has made no payment of the amounts due on September 1, October 1, November 1, December 1, 2016 and January 1, 2017. Case 1:17-cv-00020-RBW Document 4-3 Filed 01/04/17 Page 2 of 6 5. On December 2, 2016, in accordance with paragraph 5 of the Settlement Agreement, Til delivered to Miller written notice of acceleration of the debt (the "Notice of Acceleration"). б. Due to this acceleration, the amount due as of the date of the Notice of Acceleration was $595,037.44. This amount is the sum of (i) the then-outstanding principal amount due on the Discounted Amount of $600,000.00 following payment of the amount due on August 1, 2016, (ii) the accrued and unpaid interest at 8.0% per annum on this amount through the date of the Notice of Acceleration, (iii) the pre-Settlement Agreement interest on $600,000.00, which was excluded from the Discounted Amount owed by Miller under the terms of the Settlement Agreement except in the case of acceleration, and (iv) interest on that excluded amount at 8.0% per annum (compounded annually on June 9 of each year) through the date of the Notice of Acceleration. 7. Miller has made no payment to Til since delivery of the Notice of Acceleration. 8. The amount owed by Miller to ТМН has increased since the date of the Notice of Acceleration by $128.64 per day, which amount equals the additional interest accrued on unpaid principal and previously compounded interest at 8.0% per annum since the date of the Notice of Acceleration. As of the date of this declaration, this totals $599,153.92. 9. If necessary, I would be willing to deliver the foregoing testimony at trial. 10. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 2 Case 1:17-cv-00020-RBW Document 4-3 Filed 01/04/17 Page 3 of 6 Dated: Nashville, Tennessee January 3, 2017 ~ Evgeniy Karamari 3 Case 1:17-cv-00020-RBW Document 4-3 Filed 01/04/17 Page 4 of 6 APPENDIX I PAYMENT DUE DATE A1Vi0UNT DUE1 INTEREST ° COMPONENT OF г PAYMENT :. , DISCOUNTED AMOUNT PRINCIPAL , ,. AFTER PAYIVIENT` ACTUAL DATE OF Р.АУЛ'IENT AMOUNT PAID з 1/1/2015 $5,000.00 $5,469.404 $600,469.40 01/16/2015 $5,000.00 2І1/2015 $5,000.00 $4,005.13 $599,474.53 02/02/2015 5,000.00 3/1/2015 $5,000.00 $3,998.50 $598,473.03 О3/03І2015 5,000.00 4/1/2015 $5,000.00 $3,991.82 $597,464.84 04/16/2015 5,020.00 5/1/2015 $5,000.00 $3,985.09 $596,449.93 05/19/2015 5,020.00 6/1/2015 $5,000.00 $3,978.32 $595,428.25 06/15/2015 5,020.00 7/1/2015 $5,000.00 $3,971.51 $594,399.76 07/16І2015 5,020.00 8/1/2015 $5,000.00 $3,964.65 $593,364.41 08/17/2015 5,050.00 9/1/2015 $5,000.00 $3,957.74 $592,322.15 10/01/2015 5,020.00 10/1/2015 $5,000.00 $3,950.79 $591,272.93 10/08/2015 5,020.00 11/1/2015 $5,000.00 $3,943.79 $590,216.73 11/17/2015 5,050.00 12/1/2015 $5,000.00 $3,93б.75 $589,153.47 12/15/2015 5,050.00 1 The monthly payments due under the Settlement Agreement were $5,000 per month from January 1 through December 1, 2015, $10,000 per month from January 1, 2016 through December 1, 2016 and $15,000 per month from January 1, 2017 through March 1, 2020. 2 As provided in Annex A to Settlement Agreement. з Payments in excess of the amounts due were intended to cover interest on the late payments. Til is not seeking to recover additional late interest in the current Action. a The initial payment covered the 41-day period from November 20, 2014 to January 1, 2016, resulting in a larger interest payment and negative principal amortization for this period. Case 1:17-cv-00020-RBW Document 4-3 Filed 01/04/17 Page 5 of 6 PAYMENT DUE DATE AMOUNT ` DUE1 INTEREST ,,, COMPONENT OF PAYMENT2 DISCOUNTED AMOUNT PRINCIPAL AFTER PAУMENT2 ACTUAL DATE OF PAYMENT AMOUNT.:. PAID з 1/1/2016 $10,000.00 $3,929.65 $583,083.12 01/11/2016 10,000.00 2/1/2016 $10,000.00 $3,889.16 $576,972.29 02/15/2016 10,000.00 3/1/2016 $10,000.00 $3,848.41 $570,820.69 03/18/2016 10,000.00 4/1!2016 $10,000.00 $3,807.37 $564,628.07 04/18/2016 10,200.00 5/1/2016 $10,000.00 $3,766.07 $558,394.14 05/17/2016 10,100.00 6/1!2016 $10,000.00 $3,724.49 $552,118.63 06/17/2016 5,000.00 06/29/2016 5,000.00 7/1/2016 $10,000.00 $3,682.63 $545,801.26 07/28/2016 5,000.00 08/09/2016 5,100.00 8/1/2016 $10,000.00 $3,640.49 $539,441.75 08/30/2016 5,100.00 09/09/2016 5,050.00 Case 1:17-cv-00020-RBW Document 4-3 Filed 01/04/17 Page 6 of 6 EXHIBIT 3 Case 1:17-cv-00020-RBW Document 4-4 Filed 01/04/17 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ---------------------------------------------------------------------- JSC TRANSMASHHOLDING Plaintiff, v. JAMES F. MILLER AND CHRIS TAYLOR Defendants. X : : : : : : : : : : STIPULATION OF VOLUNTARY DISMISSAL UNDER FRCP 41 Civ. No. 1:13-cv-01836 (RBW) ---------------------------------------------------------------------- X STIPULATION OF VOLUNTARY DISMISSAL UNDER FRCP 41 IT IS HEREBY STIPULATED AND AGREED by and between counsel to Plaintiff JSC Transmashholding, and Defendant James F. Miller, pro se, that the above-captioned action is voluntarily dismissed without prejudice under Rule 41 of the Federal Rules of Civil Procedure. Each party shall bear its own costs. Dated: January 20, 2015 _/s/ Michael R. Lazerwitz _/s/ James F. Miller /with permission Michael R. Lazerwitz, Esq. (D.C. Bar #430605) James F. Miller, Esq. CLEARY GOTTLIEB STEEN & (Appearing pro hac vice) HAMILTON LLP 610 Kings Cloister Circle One Liberty Plaza Alexandria, VA 22302 New York, NY 10006 Tel: (202) 489-3711 Tel: (212) 225-2000 jmiller@taxlegislativesolutions.com mlazerwitz@cgsh.com Defendant, Pro Se Counsel for Plaintiff JSC Transmashholding SO ORDERED Dated: ____________ Reggie B. Walton United States District Judge Case 1:13-cv-01836-RBW Document 18 Filed 01/20/15 Page 1 of 3s : 7-cv- 0020- c t 4-4 il /04/ 7 2 f 4 2 CERTIFICATE OF SERVICE I hereby certify that I am over eighteen years of age, and that on January 20, 2015, I caused a copy of the foregoing to be served via email and first class mail on: James F. Miller, Esq. 610 Kings Cloister Circle Alexandria, Virginia 22302 jmiller@taxlegislativesolutions.com /s/ Michael R. Lazerwitz Michael R. Lazerwitz Case 1:13-cv-01836-RBW Document 18 Filed 01/20/15 Page 2 of 3s : 7-cv- 0020- c t 4-4 il /04/ 7 3 f 4 3 List of Person to be Notified (LCvR 7(k)) Michael R. Lazerwitz, Esq. Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 (212) 225-2000 mlazerwitz@cgsh.com James F. Miller, Esq. 610 Kings Cloister Circle Alexandria, VA 22302 jmiller@taxlegislativesolutions.com Case 1:13-cv-01836-RBW Document 18 Filed 01/20/15 Page 3 of 3s : 7-cv- 0020- c t 4-4 il /04/ 7 4 f 4 EXHIBIT 4 Case 1:17-cv-00020-RBW Document 4-5 Filed 01/04/17 Page 1 of 4 2000 Pennsylvania Avenue, NW Washington, Dc 2000б-1801 T: +1202 974 1500 F: +1 202 974 1999 clearygottlieb.com CLEARY GOTTLIEB STEEN & HAMILTON LLP NEW YORK PARIS BRUSSELS LONDON FRANKFURT COLOGNE MOSCOW ROME MILAN HONG KONG BEIJING BUENOS AIRES SÃO PAULO ABU DHABI SEOUL NAARK LEIDT GEORGES. CARY MITCHELL G. DUPLER GIOVANNI P. PREZIOSO MICHAELH, KRIMMINGER MATTHEW D. SLATER DAVID L GELFAND MICHAEL A. AIAZZUCHI MARK W. NELGON ROBIN M. BERGEN DEREK E'. HUGH BRIAN BYRNE PAUL D. MARE VARIT JEREMY CALGYN LEAH BRANNEN PAUL R. DT. LAWRENCE ELAINE EWING RElIDENT PART~ERf KENNETH L. BACNMAN. JR. DANIEL B. SILVER RICHARD DEC. HINDS VARAD. SCHOTLAND WILLIAM B. MCGURN III JOHN S. MAGNET JANET L. WELLER LINDA J. DOLDO „NIORERRNIEL W. RICRARD RIDSTRUP STEVEN J. KAISER JOYCE Ei LICCARTY cou~~EL KAREN A. KERR JOHN P. MCGILL. JR. MATTHEW f. BACHRACK LARRY WORE.DELIROWSKI MEGHAN A. TREILEN ALEXIS COLLINS MOLLIE C. NICHOLS CARL F. EI.IIGHOLZ ee~lo~wi~oRNE~~ BRANDON ADKING JONATHAN AMGOTT CARLOS A. ARDILA• KELLY BAHLIE HOWELL HAMBERGER TAYLOR H. BATEG• ELsBETH BENNETT GRANT A. BERMAN' PRIMA BHANU NATHAN B. BROWNRACK JILLIAN CHOU' LAURA K. CONLEY SARAH CRANDALL DANIEL CULLEY LIGA M. DANZIG RYAN M. DAVIS ALEXANDRA EBER• TABITHA EIGENS JUN FENG• BRANDON J. FIGO KATHERINE FISCHL• ERIN FRAME ALAN B. FREEDMAN• ELIZABETH B. FREEDMAN• PATRICK FULLER ALEXANDER GALICKI• ANNE TITUS HILBY' EILEEN HO JAEIEG HUNGBERGER FAILLIR L. HORST BRADLEY JUGTUG ANNA KARAGS BUDDY KHAN• ANDREW L. KLINE ZUZANNA KNYPINSKI GRACE KURLAND• ALBERT LAI ALEXIS R.B. LAZDA CHINYELU K. LEE MACEY LEVITIGTON NICOLE I. LIM CARL L. "ALM MEREDITH LEIGH MANN TANNER WORKS MATHISON' ROBERTA. MCNAMEE KARI E. MILLIGAN GYPGY MOIRE MORGAN L. MULVENON CHRISTINE MUNDIA SAMUEL PARK JENNIFER E. PAUL NICHO LAB P. PETERSON' AMBER V. PHILLIPS ROBIN RABINOWITZ• KENNETH G. REINKER CHRIGTOPHER ROBINS AARON G. RODG MICHAEL RUTHENBERG• IAARG HAL L ANOREG GAENZ' ALYDSA C. GCRUGGS WILLIAM sЕGAL OMAR GERAGELDIN SAIF SHAH MOHAMMED T. EITHER GILBERSTEIN• SARAH GRADERG' CAROLINE STANTON C. NICHOLAG STEER ERIC C. GTEINHART CHARLEI STERLING RYAN GUGG• TARA LYNN TAVERNIA WILLIAM R. THOMAS TEALE TOW EILL ASHLEY WALKER CHRISTOPHER A. WETZEL ERIK WITTMAN A~~OC1ATEi CUNZHEN HUANG RPECIALLERALOCNfULTANT INTHE RIRRICT CF CCLRMIA ' Ad,"ittRdoYIyWR Darothardlan IRRt thE о1еС1е[Of COIR,oblo. Wo,kIoyu,'der ll'HNNPRMEIOEOf pппoipalsОf Ihe WsNngton о(рсе. D:+1 202-974-1930 mstater@cgsh.com December 2, 2016 BY HAND DELIVERY AND FEDEX Mr. James F. Miller 610 Kings Cloister Circle Alexandria, VA 22302 Re: Settlement Agreement and Release, dated November 20, 2014, between JSC Transmashhoiding and James F. Miller (the "Agreement") Dear Mr. Miller, We refer to the above Agreement. As used herein, terms defined in the Agreement have the meanings specified therein. On behalf of TMH, we hereby notify you that an Event of Acceleration has occurred under Paragraph 5 of the Agreement in that, as of the date hereof, all of the monthly payments due on September 1, 2016, October 1, 2016 and November 1, 2016 are unpaid and more than fifteen (15) calendar days late and TIl is hereby giving written notice of acceleration. Accordingly, the Total Amount of $595,037.44 as of the date hereof, calculated as provided in Annex I hereto, is now due and payable. The Total Amount will increase by daily interest of S 128.64 on unpaid principal, as specified in Annex I, from the date hereof until the date of payment in full. Cleary Gottlieb Steen & Hamilton LLP or an affiliated entity has an office in each of the cities listed above. Case 1:17-cv-00020-RBW Document 4-5 Filed 01/04/17 Page 2 of 4 Mr. James F. Miller December 2, 2016 Page 2 Absent immediate payment in full of $595,037.44, Til will seek entry of final judgment in favor of Til and against you for this amount plus additional interest, before the United States District Court for the District 6f Columbia pursuant to Paragraph 6 of the Agreement, Please make prompt payment of the Total Amount, plus any additional daily interest from the date hereof to but excluding the date of payment, to TMI's account number №40702840600130002725 at PJSC VTB Bank, Russia, 109044. Moscow, Vorontsovskaya str. 43, SW1N1' code: VТBR RU MI. The following information can be used for purposes of wiring the funds: Correspondent Bank: Bank of New York Mellon, New York, USA SWlti l' code of correspondent bank: IR VT US 3N Account number of PJSC VTB Bank in correspondent bank: № 890-0055-006 For the benefit of JSC Transmashholding Account number 40702840600030002725 All notices, requests, claims, demands, and other communications to TMH under the Agreement shall, from this point forward, be delivered in accordance with the terms of the paragraph 12 of the Agreement to the following addresses: Evgeniy Karaman JSC Transmashholding Butyrsky Val Street, 26, Bldg. 1, Moscow, Russia 127055 With a copy to: Matthew D. Slater Cleary Gottlieb Steen & Hamilton LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Very truly yours, Matthew D. Slater Case 1:17-cv-00020-RBW Document 4-5 Filed 01/04/17 Page 3 of 4 Annex I Calculation of Total Amount as of December 2, 2016 US$ US$ Discounted Amount (DA) principal due August 1, 2016 per Annex A of Agreement 539,441.75 DA interest due September 1, 2016 per Annex A of Agreement 3,598.08 Additional interest on DA principal from September 1 through December 2 at 8.0% / year (0.667% / month, based on 12 months of 30 days) per Paragraph 3 of Agreement 10,794.23 Net accrued and unpaid interest on DA principal through December 2 14,392.31 14,392.31 Amount of Total Amount at November 20, 2014 excluded from Discounted Amount per Paragraph 2 36,524.99 Interest on $36,524.99 at 8.0% / year from June 9, 2015 (compounding date per Paragraph 1 of Agreement) to June 9, 2016 per Paragraph 1 of Agreement 2,922.00 Interest on $39,446.99 at 8.0% / year (0.667% / month; 0.022% / day) from June 9, 2016 (second compounding date) through December 2, 2016 per Paragraph 1 of Agreement 1,516.52 Total interest on excluded amount at December 2, 2016 4,438.52 4,438.52 Total Amount as of December 2, 2016 595,037.44 Calculation of Additional Daily Interest Until June 9, 2017 Additional daily interest at 0.022% / day on $578,888.74, representing the sum of unpaid DA principal ($539,441.75) and previously capitalized interest (S39,446.99) until June 9, 2017 when accrued and unpaid interest will again be compounded, capitalized and begin to bear interest. 128.64 Case 1:17-cv-00020-RBW Document 4-5 Filed 01/04/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JSC TØNSMASHHOLDING Plaintiff, -against- JAMES F. MILLER Defendant. Civ. No. 1:17-cv-00020 [PROPOSED] ORDER Upon due consideration of Plaintiff JSC Transmashholding's Motion for Summary Judgment, the Court hereby orders that the Motion shall be granted in full. Judgment is hereby entered for Plaintiff in the amount of $599,282.56, plus pre- and post-judgment interest at 8.0% per annum (compounded annually), attorney's fees, and costs. IT IS SO ORDERED. ‚2017 The Honorable United States District Judge Case 1:17-cv-00020-RBW Document 4-6 Filed 01/04/17 Page 1 of 2 List of Persons to Be Notified (LCvR 7(k)) Matthew D. Slater Cleary Gottlieb Steen & Hamilton LLP 2000 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Email: mslatеr@cgsh.com James F. Miller 610 Kings Cloister Cir. Alexandria, VA 22302 Case 1:17-cv-00020-RBW Document 4-6 Filed 01/04/17 Page 2 of 2