II. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Bruce A. Cole is permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual notice of this Final Judgment by personal service or otherwise: (a) Defendant Bruce A. Cole’s officers, agents, servants, Case 2:12-cv-08024-AB-JEM

(UMF Nos. 18-20.) This Court should adjudicate Robins liable for violating the fiduciary duties imposed on him by the New Mexico Business Corporation Act and the common law by failing to disclose the true status of Biomoda’s SB-2 registration, by failing to obtain the requisite board authorization necessary before issuing Biomoda stock, and by causing the sale of unregistered Biomoda stock owned by ADOT.3 CONCLUSION The undisputed evidence before this Court demonstrates Robins’ liability as a matter of law for violating 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5, and for breaching his fiduciary duties as an officer and director of Biomoda. The Court should grant Biomoda's and enter summary judgment establishing Robins’ liability.

Sections 17(a)(1) and (3) of the Securities Act [15 U.S.C. § 77q(a)(1), (3)] make it unlawful for any person, in the offer or sale of a security, by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly, to, among other things, employ any device, scheme, or artifice to defraud, or to engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit upon the purchaser. Similarly, Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)] and Rule 10b-5(a) and (c) [17 CFR § 240.10b-5(a), (c)] thereunder make it unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate comer or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of a security, to, among other things, employ any device, scheme, or artifice to defraud, or to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person. The “in connection with” requirement of Section 10(b) and Rule 10b-5 is satisfied if the fraud touches upon a securities transaction.

: _________________________________________ : [PROPOSED] FINAL JUDGMENT AS TO DEFENDANT STEVEN METRO WHEREAS, the Court has reviewed Plaintiff U.S. Securities and Exchange Commission’s (the “Commission”) Motion For Summary Judgment Against Steven Metro (“Defendant”), all supporting documents, and all opposition thereto, and based on the evidence and authorities presented therein, hereby finds and orders as follows: I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; Case 3:14-cv-01742-MAS-TJB Document 34-2 Filed 05/16/17 Page 1 of 6 PageID: 233 2 (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual notice of this Final Judgment by personal service or othe

Count One–Section 10(b)/Rule 10b–5 Claim Section 10(b) makes it unlawful “[t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C. § 78j(b). “Rule 10b–5 implements [§ 10(b) ] by making it unlawful to, among other things, ‘make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.’ “ Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1317 (2011).

Section 10(b) of the Act prohibits, in connection with the purchase or sale of any security, the use of “any manipulative or deceptive device or contrivance.” 15 U.S.C. § 78j(b).

In the Securities Exchange Act of 1934 establishing the Commission, Congress expressly delegated to the Commission the authority to adopt rules and regulations to effectuate the antifraud provisions of Section 10(b) of that Act. See 15 U.S.C. § 78j(b). Since then, the Commission has exercised its delegated authority to issue “such rules and regulations” as it deems “necessary or appropriate in the public interest or for the protection of investors.”

I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant's agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, Case 1:08-cv-02392 Document 3-5 Filed 04/29/2008 Page 1 of 5 SEC v. Boshell, et al. Page 2 FINAL JUDGMENT AS TO DEFENDANT POCHOPIEN or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

17 C.F.R. § 240.10b-5. “For a plaintiff to state a viable cause of action for securities fraud under § 10(b), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5(b), the complaint must allege that in connection with the purchase or sale of securities, defendant, acting with scienter, either made a false material representation or omitted to disclose material information so that plaintiff--acting in reliance either on defendant’s false representation or its failure to disclose material information--suffered injury and damages.” In re Scholastic Corp. Securities Litigation, 252 F.3d 63, 69 (2d Cir. 2001).

ARGUMENT THE AMENDED COMPLAINT SHOULD BE DISMISSED I. PLAINTIFFS’ SECURITIES FRAUD CLAIMS SHOULD BE DISMISSED FOR SEVERAL DIFFERENT REASONS. Section 10(b) of the Exchange Act “makes it unlawful to ‘use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may proscribe.’” Local 134 IBEW Joint Pension Tr. v. JP Morgan Chase Co., 553 F.3d 187, 197 (2d Cir. 2009) (quoting 15 U.S.C. § 78j(b)). Rule 10b-5(b), in turn, “prohibits ‘mak[ing] any untrue statement of a material fact or [omitting] to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.