ORDER GRANTING STIPULATION RE: SETTLEMENT

(Dkt. No. 123)

YVONNE GONZALEZ ROGERS, District Judge.

STIPULATION

IT IS HEREBY STIPULATED AND AGREED between the United States of America, Nicholas Saakvitne ("Saakvitne"), as Trustee, Plan Administrator, and Independent Fiduciary of the Energy Research and Generation, Inc. Profit Sharing Plan and Associated Retirement Trust ("the Plan"), Energy Research and Generation, Inc. and ERG Aerospace (collectively "ERG"), Bryan Leyda ("Leyda"), Evelyn Hermsmeier ("Hermsmeier"), Antonio Gomez, Berry Seamon, David Crotzer, Ernie Ward, Noel Crisolo, Melody Carter, Logan Thiesen, Edward Clark, Robert Perez and Stephen Dyer, by and through their respective counsel of record, as follows:

1. The Parties hereto wish to resolve all claims asserted in or related to the following pending cases: United States of America v. Burton Benson, Case No. 14-cv-2071-YGR; and Saakvitne v. Benson, Case No. 15-cv-5091-YGR ("the Burton Benson Litigation").

2. The Parties hereto, including the participants in the Plan, and Elizabeth Benson have reached a Settlement Agreement ("the Agreement") resolving all claims asserted in or arising out of the Burton Benson Litigation, contingent upon the Court executing the attached Order. The Agreement is attached hereto as Exhibit A and is incorporated by reference herein, including a redacted version of Exhibit 2 to the Settlement Agreement, which sets forth participant balances and percentage interests in the Plan. The signatories to the Agreement have submitted to the jurisdiction of this Court for the purposes of the attached Order.

3. ERG shall make payments to the Plan in accordance with Paragraph 1 of the Settlement Agreement.

4. In accordance with Paragraph 2 of the Agreement, the Plan shall transfer to ERG any and all right, title or interest the Plan may have in the following: (1) the Plan's interest in Sargent Ranch Partners, LLC ("the Sargent Ranch Units"); (2) the Plan's interest in or claims against real property in the U.S. Virgin Islands, including the properties located at 3 King Cross and 254 Estate Glynn ("the Virgin Islands Properties"); (3) the Plan's interest, if any, in Acacia Properties, LLC, dba Benson Properties, Ltd., including, but not limited to, the properties located at 189 Ivy Drive, Orinda, California; 266 Elsie Drive, Danville, California; 3341 N. Lucille Lane, Lafayette, California; 7 Mount Pleasant, St. Croix; 3 Arroyo Drive, Orinda, California (subject to a claim by Evelyn Hermsmeier that she owns 3 Arroyo Drive); 143 Alice Lane, Orinda, California, subject to all liens and encumbrances against the properties; and (4) the Plan's interest in or claim to the real property located at 15260 S. Shore Drive, Truckee, California ("the Donner Lake Property").

5. The Parties, including the United States and the Department of Labor, also agree that the transactions described in Paragraph 2 of the Agreement are exempt from the prohibited transaction provisions of ERISA § 406(a)(1)(A) [29 U.S.C. § 1106(a)(1)(A)] pursuant to Prohibited Transaction Class Exemption 1994-71. (Exemption 94-71). The Parties, specifically including the United States and the United States Department of Labor, further agree that the installment payments by ERG to the Plan in exchange for the transfer of property referred to above also are exempt from the prohibited transaction provisions of ERISA § 406(a)(1)(A) [29 U.S.C. § 1106(a)(1)(A)] pursuant to Prohibited Transaction Class Exemption 94-71.

6. The Agreement and this Stipulation are contingent upon satisfaction of the conditions set forth in Paragraphs 5 and 6 of the Agreement relating to the Department of Justice Tax Division and California Franchise Tax Board.

7. The Parties have agreed that the cases of United States of America v. Burton Benson, Case No. 14-cv-2071-YGR; and Saakvitne v. Benson, Case No. 15-cv-5091-YGR shall be dismissed with prejudice upon the effective date of the Agreement; however, the Court will retain jurisdiction to enforce the Agreement and this Stipulation and Order until ERG completes all of its obligations under the Agreement and this Stipulation. Nicholas Saakvitne, the Trustee appointed by the Court, shall be removed upon the effective date of the appointment of a new Trustee.

8. The Parties have agreed that the Plan will pay Elizabeth Benson $12,000 per month for 21 months or until her death, whichever comes first, in full satisfaction of Burton Benson's interest in the Plan and of his beneficiary's and/or heirs' interest in the Plan. The Parties also have agreed to the entry of a Court Order forfeiting Burton Benson's participant interest in the Plan in excess of the amount to be paid to Elizabeth Benson.

9. The Parties have agreed that the Civil Forfeiture Agreements entered into by Bradley Benson and Eric Benson are declared null and void. However, Bradley Benson will cooperate to transfer good title to the Donner Lake Property to the Plan, subject to transfer thereafter to ERG.

10. The Plan has agreed to pay Evelyn Hermsmeier $250,000 and ERG has agreed to pay her $200,000 in full satisfaction of her claims relating to the ERG Ford Trust. The Parties have agreed that all assets nominally held in the name of the alleged ERG Ford Trust are assets of the Plan and are to be deemed transferred to the Plan.

11. The Parties have agreed to release all claims against each other as set forth in Sections 15 through 17 of the Agreement. The Parties have agreed that the Plan will release any security interests in the properties mentioned in Paragraphs 2 and 18 of the Agreement in accordance with the terms set forth in Paragraph 18 of the Agreement.

12. At the time of the transfer of the Sargent Ranch Units, ERG has agreed it will pledge those Units to the Plan in accordance with the provisions of the California Uniform Commercial Code. The pledge will be released by the Plan in accordance with the terms of the Agreement.

13. At the time of the transfer of the Donner Lake Property, ERG has agreed that it will provide the Plan with a first deed of trust or other appropriate lien against the Donner Lake Property. The Plan will release the deed of trust or lien in accordance with the terms of the Agreement.

14. As part of the Agreement, the Plan has agreed to transfer to ERG the Plan's interests in properties located at 3 King Cross and 254 Estate Glynn in the Virgin Islands, which interests currently are being foreclosed upon by the Plan. ERG has agreed that upon successful completion of the foreclosure lawsuit, ERG will provide the Plan with first position liens against 3 King Cross and 254 Estate Glynn upon ERG taking ownership of the properties. The Plan will release the deed of trust or lien in accordance with the terms of the Agreement. If the properties are sold to a higher bidder at the foreclosure auction, the foreclosure proceeds will be delivered directly from escrow to the Plan and will be applied against the balance owed pursuant to the Agreement.

15. The Parties also have agreed that if ERG sells any of the properties referred to in Paragraph 2 of the Agreement before ERG has paid the Plan the full amount due pursuant to the Agreement, then ERG will transfer the net proceeds to the Plan directly from escrow, until the full amount of $3,250,000, plus interest, has been paid to the Plan.

16. In the event of a default by ERG, and the failure of ERG to cure that default within 60 days, the Plan may take whatever steps it deems appropriate to enforce and/or foreclose on its security interests in the Sargent Ranch Units, the Donner Lake Property and/or the Virgin Islands Properties.

17. The Parties have agreed that distributions to the participants in the Plan will be paid in accordance with Exhibit 2 to the Settlement Agreement, and that all partial distributions will be made pro rata based on Exhibit 2 to the Settlement Agreement.

[signatures in original document]

ORDER GRANTING STIPULATION

The Court, having reviewed the above Stipulation of the Parties (filed November 17, 2017 at Docket No. 123 in 14-cv-2071, "Stipulation"), and good cause appearing, ORDERS as follows:

1. The case of United States of America v. Benson, Case No. 14-cv-2071-YGR, is dismissed with prejudice.

2. The case of Saakvitne v. Benson, Case No. 15-cv-5091-YGR, is dismissed with prejudice. However, the Court retains jurisdiction to enforce the Settlement Agreement ("the Agreement," Exhibit A hereto) and this Order Granting Stipulation Re: Settlement until ERG completes all of its obligations under the Agreement and this Order Granting Stipulation Re: Settlement.

3. The Court ORDERS that all assets nominally in the name of the alleged ERG Ford Trust are assets of the Plan, and are hereby deemed transferred to the Plan. Evelyn Hermsmeier will cooperate with the Plan and will execute any documents necessary to transfer assets of the ERG Ford Trust formally to the Plan. Except as provided in Paragraph 10 of the Stipulation, it is hereby ordered that Hermsmeier has no further interest in the ERG Ford Trust or assets nominally in its name.

4. Except as provided in Paragraph 8 of the Stipulation, the Court ORDERS pursuant to 26 U.S.C. § 401(a)(13)(C)(ii) and 29 U.S.C. § 1056(d)(4)(B) that Burton Benson's interest as a participant in the Plan and that of his beneficiaries and/or heirs is hereby forfeited due to Burton Benson's fiduciary breaches as Trustee of the Plan

5. The Court hereby finds, pursuant to the Stipulation, that the transfers by the Plan to ERG of property or of claims to or interests in property described in Paragraph 4 of the Stipulation are exempt from the prohibited transactions provisions of ERISA [29 U.S.C. § 1106(a)] pursuant to Prohibited Transaction Class Exemption 1994-71. The transactions referenced in the Stipulation and Agreement are the transfers of the following: (1) the Plan's interest in Sargent Ranch Partners, LLC ("the Sargent Ranch Units"); (2) the Plan's interest in or claims against real property in the U.S. Virgin Islands, including the properties located at 3 King Cross and 254 Estate Glynn ("the Virgin Islands Properties"); (3) the Plan's interest, if any, in Acacia Properties, LLC, dba Benson Properties, Ltd., including, but not limited to, the properties located at 189 Ivy Drive, Orinda, California; 266 Elsie Drive, Danville, California; 3341 N. Lucille Lane, Lafayette, California; 7 Mount Pleasant, St. Croix; 3 Arroyo Drive, Orinda, California (subject to a claim by Evelyn Hermsmeier that she owns 3 Arroyo Drive); 143 Alice Lane, Orinda, California, subject to all liens and encumbrances against the properties; and (4) the Plan's interest in or claim to the real property located at 15260 S. Shore Drive, Truckee, California ("the Donner Lake Property").

The Court finds, pursuant to the terms of the Stipulation and Agreement, that the installment payments by ERG to the Plan in exchange for the transfer of the properties referred to above are exempt from the prohibited transactions provisions of ERISA [29 U.S.C. § 1106(a)] pursuant to Prohibited Transaction Class Exemption 1994-71.

6. Thomas Dillon is hereby appointed as the new Trustee of the Plan in place of Nicholas Saakvitne ("Saakvitne"), and Saakvitne is hereby immediately relieved of all of his duties to the Plan.

7. Distributions by the new Trustee to the participants shall be made in accordance with the Agreement.

8. In the event of a default by ERG with respect to its obligations to the Plan pursuant to the Agreement and/or this Order on Stipulation, and the failure to cure that default within 60 days, the Plan may take whatever steps it deems appropriate to enforce or foreclose on its security interests in the Sargent Ranch Units, the Donner Lake Property and/or the Virgin Islands Properties.

IT IS SO ORDERED.

SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT (the "Agreement") is effective when (1) signed by all the Parties, (2) the Court signs and files the proposed Order attached hereto as Exhibit 3, and (3) thirty days after notice is sent to Plan participants pursuant to Prohibited Transaction Class Exemption 1994-71, and is made and entered into by and among Energy Research & Generation, Inc. and ERG Aerospace (hereinafter collectively referred to as "ERG"), Nicholas Saakvitne ("Saakvitne"), as the Trustee of the Energy Research & Generation, Inc. Profit Sharing Plan (hereinafter "the Plan"), Eric Benson, Bradley Benson, Elizabeth Benson, the United States of America, and the following participants in the Plan: Antonio Gomez, Berry Seamon, Bryan Leyda, David Crotzer, Ernie Ward, Evelyn Hermsmeier, Noel Crisolo, Melody Carter, Logan Thiesen, Edward Clark, Robert Perez, Stephen Dyer, David Wilkerson and Frank Raskauskas (collectively, "the Parties").

RECITALS

WHEREAS, on April 8, 2015, an Order and Judgment in ERG Aerospace Corp. v. United States, Case No. 13-cv-02973-VC, was filed which stated, in pertinent part, "Judgment is entered in favor of the United States of America and against ENERGY RESEARCH & GENERATION, INC. in the amount of $24,086,135.69, plus statutory interest from March 25, 2013, until paid." The amount of the Judgment of $24,086,135.69 relates to taxes, penalties and interest for the tax years 1988-1995 ("Judgment Years".) As of November 27, 2016, the total taxes, penalties, and interest due and owing by ERG for the years 1989-1995 ("Judgment Years") and 1999-2011 (Assessed Years" or "Nonjudgment Years") is $29,241,327.30. Interest has and will continue to accrue from the dates mentioned above.

WHEREAS, on March 27, 2014, a Second Superseding Indictment was filed in the criminal case of United States v. Burton Orville Benson and Eric Burton Benson, Case No. 12cr-00480-YGR. On April 21, 2017, Burton Benson ("Benson") passed away, and on May 26, 2017 the aforementioned criminal action was dismissed.

WHEREAS, on May 6, 2014, a Complaint for Injunctive Relief Pursuant to 18 U.S.C. § 1345 was filed in the civil case of United States v. Burton Orville Benson, Case No. 14-cv-02071-YGR requesting appointment of an independent fiduciary to replace Burton Benson and to manage the Plan and its assets for duration of any awarded injunctive relief. On May 6, 2014, the government also filed an Ex Parte Motion for Preliminary Injunction. On May 23, 2014, the Court granted the Motion for Preliminary Injunction. On May 27, 2014, the Court appointed Nicholas Saakvitne as trustee and independent fiduciary. On May 27, 2014, the Court appointed Metro Benefits, Inc. as the forensic accounting firm for the Plan pursuant to a government petition for an injunction under 18 U.S.C. § 1345. On May 12, 2017, ERG as an intervenor filed its motion to dismiss the prohibitory preliminary injunction against Burton Benson, now deceased, and the mandatory injunction appointing Nicholas Saakvitne and Metro Benefits as trustee/administrator of the Energy, Research & Generation, Inc. Profit Sharing Plan, which was denied without prejudice.

WHEREAS, in August 2014, Eric Benson and the United States Attorney's Office entered into agreements whereby Eric Benson agreed to transfer all of his interest (in any capacity, whether ownership or control) in various entities and properties to the Plan.

WHEREAS, in February 2015, Bradley Benson and the United States Attorney's Office entered into agreements whereby Bradley Benson agreed to transfer all of his interest (in any capacity, whether ownership or control) in various entities and properties to the Plan.

WHEREAS, on June 30, 2015, the Plan filed a Complaint against ERG in the case of Nicholas Saakvitne v. Energy Research & Generation, et al., Case No. 4:15-cv-3026-YGR, ERG entered into a settlement with the Plan in which ERG agreed to pay the Plan a total of $4,515,565.00. A copy of the Settlement Agreement is attached as Exhibit 1 (the "First Settlement Agreement"). A Stipulated Judgment in the above-captioned action was entered on March 10, 2016. ERG's obligations under the Stipulated Judgment were fully satisfied as of September 13, 2017.

WHEREAS, on November 9, 2016, ERG submitted a Settlement Offer/Offer in Compromise to the Department of Justice and the Internal Revenue Service. As of November 27, 2016, the total taxes, penalties, and interest due and owing by ERG for the years 1989-1995 and 1999-2011 is $29,241,327.30. That Settlement Offer/Offer in Compromise is still pending before the Tax Division of the U.S. Department of Justice. ERG understands and believes that its obligations to the IRS take priority over ERG's obligations to the Plan.

WHEREAS, as of June 30, 2017, the State of California Franchise Tax Board ("FTB") claims that ERG owes a total of approximately $5,868,206.83 to relating to the tax years 1988-1995 and 2003-2014. In order to resolve the amounts due and owing to the FTB, ERG will be submitting a request for an installment payment plan with the FTB and, based upon FTB policy, ERG anticipates that ERG will be required to pay the entire $5,868,206.83 plus interest within 12 months. ERG understands and believes that its obligations to the FTB take priority over ERG's obligations to the Plan.

WHEREAS there is currently pending in the United States District Court for the Northern District of California the case of Nicholas Saakvitne v. Burton Orville Benson, Case No. 4:15-cv-5091-YGR, On June 13, 2017, Plaintiff filed a Motion to Substitute Parties which is currently pending.

WHEREAS there is currently pending in the United States District Court for the District of the Virgin Islands the case of Nicholas Saakvitne v. Bay Estates Group Limited Liability Limited Partnership, et at, Case No. 1:16-cv-59-CVG-GWC, ("the Foreclosure Action").

WHEREAS the Plan Participants believe it is in their best interests to transfer their interests in the various properties to ERG in exchange for the payments referred to below.

WHEREAS, ERG believes that the Internal Revenue Service and the Franchise Tax Board's ability to collect from ERG is not adversely impacted by this Agreement because the Plan is providing assets to ERG that are of at least of equal value to the payments the Plan will receive from ERG. In addition, ERG believes that both the IRS and FTB have the right to place junior liens on these property interests once they are placed in the name of ERG.

THE AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements contained herein, and intending to be legally bound, ERG and the Plan hereby agree as follows:

1. Payments. In accordance with the terms of the Second Settlement Agreement, ERG agrees to pay $3,250,000 in principal to the Plan for the property interests referred to below. ERG will make payments of $55,000 per month to the Plan from the effective date of this Agreement through the March 2019 payment.

Beginning April 1, 2019, ERG will make payments to the Plan equaling 50% of the amount by which average monthly revenue for the prior 6 months exceeds average monthly expenses for the prior 6 months. However, the payments to the FTB of the $5,868,206.83, plus interest, shall be excluded from the calculation of "average monthly expenses."

Interest at the rate of 6% per anum will begin to accrue on the effective date of this Agreement.

It is understood and agreed the cap referred to in the First Settlement Agreement is not applicable to the $3,250,000.

Bradley Benson, as General Manager of EM&B, will take all necessary steps to deliver good title to the property located at 15260 South Shore Drive, Truckee, California ("the Donner Lake Property"), to the Plan. As addressed in Paragraph 2 immediately below, the Plan will then transfer the Donner Lake Property to ERG as part of this settlement.

2. Transfers and/or Relinquishment of Rights by the Plan to ERG. In exchange for the above-mentioned payments, the Plan will transfer and/or relinquish to ERG any and all right, title and interest (in any capacity whether ownership or control) the Plan may have immediately following the signing of this Agreement by all Parties in:

ERG will pay all the costs of the transfer of the aforementioned properties.

3. Legality of Transfer. ERG and the Plan shall share the cost of obtaining a legal opinion as the legality of the transfers described in Paragraphs 1 and 2. This settlement is contingent upon the Court approving the transfers as exempt from the prohibited transaction provisions of ERISA. It is the intent of the Parties that the transfers from the Plan to ERG described in Paragraphs 1 and 2 above are exempt from the prohibited transaction provisions of ERISA pursuant to Prohibited Transaction Class Exemption 94-71, and the Parties agree to take all steps necessary to comply with that exemption.

4. Approval of the Department of Labor. By signing this Agreement, the United States, on behalf of the Secretary of Labor, hereby agrees that the transactions described in Paragraphs 1 and 2 above are exempt from the prohibited transaction provisions of ERISA pursuant to Prohibited Transaction Class Exemption 94-71.

5. Disclosure to Department of Justice Tax Division and No Objeciton byt DOJ Tax. The Parties understand and acknowledge that there is an Order and Judgment in Case No. 13-cv-02979-CV, "in favor of the United States of America and Against ENERGY RESEARCH & GENERATION, INC., in the amount of $24,086,135.69, plus statutory interest from March 25, 2013, until paid." ERG further understands and acknowledges that, as of November 27, 2016, the total taxes, penalties, and interest due and owing by ERG for the years 1989-1995 and 1999-2011 is $29,241,327.30. The Parties further understand and acknowledge that the IRS has recorded liens against ERG. ERG understands and acknowledges that the payment of the taxes penalties and interest owing to the IRS takes priority over any amounts owing to the Plan. The Parties further understand and agree that the final draft of this agreement will be provided to the Department of Justice Tax Division and if DOJ Tax interposes any objection before the effective date of this Agreement, the Agreement will be null and void.

6. Disclosure to California Franchise Tax Board and No Objection by FIB. The Parties understand and agree the final draft of this Agreement including payment terms will be disclosed to the FTB and if the FTB objects before the effective date of this Agreement, then this Agreement shall be null and void.

7. Dismissal of United States v. Burton Benson and Saakvitne vs. Burton Benson, and Removal of Court-Appointed Trustee. Upon this Agreement becoming effective, the civil case of United States v. Burton Orville Benson, Case No. 14-cv-02071-YGR shall be dismissed with prejudice and the Preliminary Injunction shall be dissolved. Nicholas Saakvitne, the Trustee appointed by the Court, shall be removed upon the effective date of the appointment of a new Trustee pursuant to Paragraph 7. The civil case of Saakvitne v. Benson, Case No. 15-cv-3026-YGR, shall be dismissed with prejudice upon the execution of this Agreement, provided, however that the Court retains jurisdiction to enforce the Order, attached hereto as Exhibit 3.

8. ERG's Appointment of a New Trustee. Pursuant to Sections 2.3(a) and 7.9(c) of the Plan documents, ERG shall appoint a new Trustee upon this Agreement becoming effective. Appointment of the new Trustee will be subject to approval by Saakvitne and David Shapiro, counsel for the participants in the Plan. It is hereby agreed that the new Trustee will not change the respective percentage interests in the Plan of each of the participants in the Plan, as calculated by Metro Benefits during the period when Saakvitne was Trustee. The participants' percentage interests have been deterMined based on the assumption that Burton Benson's participant interest in the Plan is forfeited (which is provided for in Paragraph 9 herein). Payments will be made to the participants in accordance with Exhibit 2 hereto or pro rake in accordance with Exhibit 2.

9. Plan Payments to Elizabeth Benson. The Plan shall make payments to Elizabeth Benson in the amount of $12,000 per month for 21 months or until her death, whichever occurs first, in full satisfaction of Burton Benson's interest in the Plan as a participant. Burton Benson's interest as a participant in the Plan in excess of this amount shall be forfeited pursuant to 26 U.S.C. § 401(a)(13)(C)(ii) and 29 U.S.C. § 1056(d)(4)(B) due to Burton Benson's fiduciary breaches as Trustee of the Plan. Any interest in the Plan by Elizabeth Benson as Burton Benson's sole beneficiary is also forfeited. The forfeiture of the interest of Burton Benson and his beneficiaries is to be confirmed by this Court. A copy of the executed Stipulation and [Proposed] Order is attached hereby as Exhibit 3. The Parties understand and agree that this Agreement will not be effective unless and until the Court approves the forfeiture of Burton Benson's interest in the Plan. However, nothing in this paragraph shall affect Elizabeth Benson's right to her interest in the Plan as a participant due to being a former employee.

10. ERG Payments to Elizabeth Benson. ERG shall be permitted to make payment of $12,000 per month to Elizabeth Benson for the remainder of her life, beginning after the Plan's payments end. The United States and ERG agree that said payments are not in violation of the Stipulated Judgment entered in the case of ERG Aerospace Corporation vs. United States, Case No. 13-cv-02979-VC. The United States and ERG have filed e a Stipulation and Order to Modify the Stipulated Judgment accordingly, and this Agreement will not be effective until Judge Chhabria approves of the Stipulation.

11. Civil Forfeiture Agreements Will be Declared Null and Void. Upon this Agreement becoming effective, the agreements signed by Bradley Benson and/or Eric Benson in which they agreed to transfer any interests in properties and/or entities to the Plan, including any Civil Forfeiture Agreements, shall become null and void. Any such interests in property and/or entities shall be transferred to ERG by Bradley Benson and/or Eric Benson. However, as set forth above in Paragraph 2, Bradley Benson will cooperate to transfer good title in the Donner Lake Property to the Plan, subject to transfer thereafter to ERG.

12. Baden Spiel Haus. The Parties hereto acknowledge and agree that Evelyn Hermsmeier shall sell the property owned by the Baden Spiel Haus partnership, located at 11562 Baden Road, Truckee, CA 96161, as soon as practical. The Plan will receive 50% of the net proceeds of the sale, less expenses paid by Hermsmeier in the last 18 months that were not reimbursed to her by the partners in the partnership, directly from escrow.

13. Evelyn Hermsmeier and the ERG Ford Trust. In full and complete settlement of all claims by Evelyn Hermsmeier against the Plan, the Plan will distribute or directly rollover to Hermsmeier a lump sum of $250,000 no later than 30 days after the effective date of this Agreement. In addition, on or about that same date, ERG will pay Hermsmeier a lump sum of $200,000. All of the assets held in the name of the alleged ERG Ford Trust are deemed assets of the Plan. Hermsmeier will cooperate with the Plan to the extent necessary to transfer any of those assets from the name of the ERG Ford Trust to the Plan. To the extent that the ERG Ford Trust's interest in Sargent Ranch Partners, LLC is transferred to the Plan, that interest in turn will be transferred to ERG pursuant to and in accordance with Paragraph 2(a) above. Nothing in this paragraph shall affect Hermsmeier's right to her interest in the Plan as a participant due to being a former employee. The transfer of property held in the name of the ERG Ford Trust to the Plan shall be confirmed by Court Order and this Agreement will not be effective unless and until there is Court approval.

14. Consent to Jurisdiction. By signing this Agreement, the Parties hereto consent to the jurisdiction of the Court in Saakvitne v. Benson, Case No. 15-cv-3026-YGR, to effectuate the terms of the Agreement.

15. Waiver and Release. Except as set forth below, and with the exception of the United States, upon the effective date of this Agreement, the Parties hereto, and their predecessors, successors, employees, officers, directors, heirs, trusts, trustees, assigns and agents, including the ERG Trust, Acacia Properties, Baden Spiel Partnership and EM&B (the "Releasing Parties"), hereby waive, release, relinquish, acquit, and forever discharge each other, including their predecessors, successors, employees, officers, directors, heirs, trusts, trustees, assigns, agents and their attorneys, including, but not limited to, Fabian VanCott; Boersch Shapiro LLP; Albert & Will, LLP; Moore, Dodson & Russell, PC; and Metro Benefits, Inc., of and from any and all claims, demands, rights, liens, claims for relief, actions, causes of action, and the like, of every kind and nature whatsoever, known and unknown, suspected and unsuspected, anticipated and unanticipated, past, present and future, whether arising at law, under a contract, in tort, in equity, or otherwise, for all injuries, economic loss, damages, losses, attorneys' fees, costs, expenses, or otherwise, including without limitation all consequential, general, special, and/o" punitive damages, resulting or to result from, or in any way arising out of, related to, or in connection with, any act or omission to the date hereof, including but not limited to any and all matters related to or referred to in the pleadings in the cases of United States v. Benson, Case No. 14-cv-02071-YGR; Saakvitne v. Energy Research & Generation Inc., Case No. 15-cv-03026-YGR; Saakvitne v. Benson, Case No. 15-cv-5091-YOR; ERG Aerospace v. United States, Case No. 13-cv-02973-VC; Saakvitne v. Bay Estates Group Limited Liability Limited Partnership, et al., Case No. 16-cv-59-CVG-GWC; and the Forfeiture Agreements entered into by Eric Benson and Bradley Benson.

16. California Civil Code § 1542 Waiver. It is a condition hereof and it is the intention of each Party to this Agreement that it shall be effective as a bar to each and every claim, demand, cause of action specified above; and in furtherance of this intention, the Releasing Parties hereby expressly waive any and all rights or benefits conferred upon them by the provisions of section 1542 of the California Civil Code, which provides:

In connection with such waiver and relinquishment of all rights or benefits conferred under section 1542 of the Civil Code, or similar state law, each Party to this Agreement is aware and hereby acknowledges that he, she or it may hereinafter discovery claims or facts in addition to or different from those which may now be known or believed to be true with respect to the matters released herein, but that it is the intention of the Parties hereto to hereby fully, finally, and forever settle and release all matters hereinabove specified, whether known or unknown, suspected or unsuspected, which now exist, may exist or have previously existed between the Parties. In furtherance of such intention, the releases herein given shall be, and shall remain, in effect as full and complete releases of the matters released, notwithstanding the discovery of or the existence of additional or different facts.

17. Releases By and for the United States. The United States also hereby releases any claims resulting from or in any way arising out of, related to, or connected with any and all matters related to or referred to in the pleadings in the cases of United States v. Benson, Case No. 14-cv-02071-YGR, and Saakvitne v. Burton Benson, Case No. 15-cv-03026-YGR against all the Parties hereto. The Parties hereto release any claims against the United States arising out of, related to, or connected with any and all matters referred to in the pleadings in the cases of United States v. Benson, Case No. 14-cv-02071-YGR, and Saakvitne v. Burton Benson, Case No. 15-cv-03026-YGR. However, nothing herein shall affect the judgment in favor of the Internal Revenue Service ("IRS") and against ERG referred to in the Recitals or any liens recorded by the IRS.

18. Security, Default, and Claw Back. ERG will provide the Plan with a first deed of trust with respect to the property located at 15260 South Shore Drive, Truckee, California.

ERG will provide the Plan with a first deed of trust or the equivalent under Virgin Island law with respect to the properties located at 3 King Cross and 254 Estate Glynn in the Virgin Islands. If 3 King Cross and/or 254 Estate Glynn is sold to a higher bidder at the foreclosure auction, 100% of the proceeds from the sale or sales will be provided directly from escrow to the Plan and applied against the balance owed by ERG pursuant to this Agreement.

ERG will also pledge to the Plan all of the units in Sargent Ranch Partners, LLC transferred by the Plan to ERG ("the Sargent Ranch Units"), and will cooperate with the Plan to facilitate the recording of a UCC-1 filing with respect to the Sargent Ranch Units.

ERG payments to the Plan as outlined below will result in the Plan transferring title to ERG and/or releasing any interest in the properties as follows:

Should ERG sell any of the properties transferred by the Plan to .ERG as part of this Agreement; ERG agrees to transfer the net proceeds to the Plan directly from escrow, until the full amount of $3,250,000 plus interest, has been paid under this Agreement.

In addition, should ERG sell any of the properties transferred by the Plan to ERG as part of this Agreement within one year of the effective date of this Agreement, then the Plan will be entitled to claw back 20% of the profit upon the sale of any of the properties. For purposes of determining profit, the sales price of the Donner Lake Property is $800,000, the sales price of 3 King Cross is $300,000, the sales price of 254 Estate Glytm is $100,000, and the sales price of each 1.0% interest in Sargent Ranch Partners, LLC is $522,222.

The monthly payment amount to be made to the Plan will be' due on the first day of every month until payment in full is made. If any monthly payment is not received by the Plan by the 11th day of any month, ERG will be in default. ERG will have the opportunity to cure the default within sixty days, but the Plan is under no obligation to give notice of default.

In the event that a payment is not made by the 11th day of the month, the Plan will meet with ERG and confer in good faith in an attempt to resolve the matter prior to executing on the Judgment. However, if ERG is unable to cure the default within the sixty-day period provided, and the meet and confer discussions between the Plan and ERG do not resolve the matter, the Plan will be entitled to take whatever steps it deems appropriate to enforce the Judgment and to foreclose on its security interests in the property described in Paragraph 2.

19. Exceptions to this Agreement. The exceptions to this Agreement are as follows:

20. Good Faith Compromise anti No Admissions. This Agreement is the result of a good faith compromise and settlement of disputed claims and shall not at any time, or for any purpose, be considered an admission of liability or of merit or correctness of any claim advanced by any Party, or of liability or responsibility of the Parties.

21. Further Assurances. The Parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Settlement Agreement.

22. Governing Law. This Agreement shall be governed by, construed in and enforced in accordance with the laws of the State of California and the United States where applicable without regard to choice of law or conflict of law.

23. Amendments. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by each of the Parties affected thereby.

24. Waivers. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity.

25. Voluntary Agreement. The Parties represent that they have carefully read this Agreement, know its contents, and execute the Agreement voluntarily.

26. Severability. If for any reason any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement nevertheless shall be construed, performed, and enforced as if the invalid or unenforceable provision had not been included in the text of the Agreement.

27. Drafting. The drafting and negotiation of this Agreement have been participated in by each of the Parties, and for all purposes, this Agreement shall be deemed to have been drafted jointly by each of the Parties.

28. Counterparts. If this Agreement is executed by signatures transmitted by facsimile or email in counterparts, each counterpart shall be deemed an original, and all counterparts so executed shall constitute one agreement binding on all of the Parties.

29. Entire Agreement. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties hereto concerning the subject matter hereof are contained in this Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties concerning this subject matter hereof are merged herein, This is an integrated Agreement.

30. Attorneys' Fees and Costs. Provided each Party complies with the terms and conditions of this Agreement, each Party shall bear its own attorney's fees and costs incurred through the execution of this Agreement. In any action or proceeding to enforce the terms of this Agreement or to redress any violation of this Agreement or otherwise resolve any dispute between the Parties arising hereunder, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and other legal costs from the other Party or Parties.

31. Authority. The Parties represent and warrant that they have full power, authority and capacity to execute this Agreement and perform the obligations hereunder.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year set forth.

EXHIBIT 1

SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT (the "Agreement") is made and entered Into this ay of June 2015, by and among Energy Research & Generation, Inc, and ERG Aerospace Corporation, both doing business as ERG Materials and Aerospace Corporation (hereinafter collectively referred to as "ERG") and Nicholas Saakvitne as the Trustee of the Energy Research & Generation, Inc, Profit Sharing Plan (hereinafter "die Plan") (collectively, "the Parties").

RECITALS

WHEREAS, on March 27, 2014, a Second Superseding Indictment was filed in the criminal case of United States' v. Burton Orville Benson and Erie Burton Benson, Case No. 12-cr-00480-YGR.

WHEREAS, on May 6, 2014, a Complaint was filed in the civil case of United Sitates v. Burton Orville Benson, Case No, 14-cv-02071-YGR.

WHEREAS, on October 16, 2013, in the (styli case of ERG Aerospace Corporation res. United States, Case No. 13-cv-02979-VC, the United States filed Its Answer & Counterclaim in Case No. 13-cv-02979-VC.

WHEREAS, on April 8, 2015, an Order and Judgment hi Case No, 13-cv-02979-VC, was filed which stated, in pertinent part, "Judgment is entered in favor of the United States of America and against ENERGY RESEARCH & GENERATION, INC, hi the amount of $24,086,135.69, plus statutory interest from March 25, 2013, until paid,"

WHEREAS, In correspondence dated October 29, 2014, ERG was notified by the Department of the Navy that It had been suspended from contracting with The Department 0%0 Navy.

WHEREAS, according to Section 3 on Page 2 of the Energy Research & Generation, hie, Profit Sharing Plan Slummy Plan Description, the Plan Administrator is Energy Research & Generation. Inc., and according to the from 5500, Annual Return/Report of Employee Benefit Plan for 2009, the Plan Sponsor is Energy Research & Generation Inn,

WHEREAS the Plan contends that ERG was the Plan Administrator and thereby a plan fiduciary at all times relevant herein,

WHEREAS the Plan contends that Burton Benson ("Benson"), the Trustee of the Plan prior to the appointment of Saakvitne as Plan Trustee in May 2014, transferred at toast $6.1 million in Plan Assets to himself and/or to entitles owned or controlled by Benson and his family members or to third parties for the payment of Benson and his family's personal debts,

WHEREAS the Plan contends that ERG is civilly liable for the losses caused by Benson in its role as Plan Administrator.

WHEREAS ERG denies the contentions of the Plan and any liability to the Plan,

WHEREAS the Plan and ERG have agreed to settle to disputes between them according to the terms of this Agreement with ERG agreeing to pay the Plan the total sum of $4,515,565,00, plus interest,

THE AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements contained heroin, and intending to he legally bound, ERG and the Plan hereby agree as follows:

1. Payments, ERG agrees to pay $4,515,565,00 in principal to Trustee Nicholas Saakvltino of the Plan, Payments shall be made monthly as set forth in paragraphs 5, 7 and 8 below. The unpaid principal shall accrue interest at the initial rate of 1% per annum beginning oft June 1, 2015, and 4101 rate will increase by 1% every two years until reaching 4% per annum on Juno I, 2021.

2. Funds With the Court. ERG agrees to immediately confirm and represent to the Government in Writing that it releases all claims to the $321,351.00 that was deposited with the Court in Case No, 13-cv-02979-VC on or about August 20, 2014, ERG understands that these funds will released to the Plan and made payable to the Plan by the Court in the event that the United States and IRS release their claims against those funds, It is agreed that any amounts actually received by the Plan from the funds held by the Court will he credited against the total amount owed pursuant to this Agreement by ERG,

3. Stipulated Judgment. The Parties agree that the Plan will file a Complaint in the United States District Court for the Northern District of California, in the form attached hereto as Exhibit A within thirty (30) days of execution of this Agreement, ERG further hereby waives all defenses to the Complaint and consents to execute a Stipulation for Entry of Judgment and to entry of a Proposed Stipulated Judgment in the form attached hereto as Exhibits B and C. The Stipulated Judgment shalt be in the amount of $4,515,565.00, If the Court refuses to execute the Stipulated Judgment due to any alleged deficiencies in the Complaint as attached hereto and filed with the Court, ERG agrees It will not object to the filing of an Amended Complaint and will take all reasonable steps to cooperate with the Plan In obtaining a Judgment executed by the Court for the agreed upon amount,

The Plan agrees that it will not execute upon the Judgment unless ERG is in default as defined in paragraphs 7 and 8 below. However, the Plan, may immediately record the Judgment in whatever jurisdictions it sees fit to establish the priority of its claim, It is Author agreed between The parties that the Plan may execute upon the Judgment if ERG falls to make any required monthly payments within forty-one days of the due date,

4. Amounts Owing to the United States/Internal Revenue Savvies. The Parties understand find acknowledge that there Is an Order and Judgment in Case No. 13-cv-02979-CV, "in favor of the United States of America and Against ENERGY RESEARCH & GENERATION, INC., in the amount of $24,086,135,69, plus statutory interest km March 25, 2013, until paid," The Parties farther understand and acknowledge that the IRS has recorded liens against ERG.

5. Agreement to with the Department of Justice and Internal Royenue Service to Establish Payment Plau, The Parties understand and acknowledge that the agreement of the Department of Justice and the IRS is required as a practical matter in order to establish a monthly payment plan in which ERG makes payments to the Department of Justice/Internal Revenue Service and The Plan, It is anticipated that the Department of Justice and ERG will be stipulating to an Injunction and a Payment Plan with the Internal Revenue Service within the next month, The Parties agree to meet with representatives of the Department of Justice and the Internal Revenue Service to arrive at the amount of the monthly payments that ERG is financially able to make to the Internal Revenue Service and the Plan, The Parties agree that they will work with the IRS to establish a monthly payment amount as soon as possible, and will execute a Supplement to this Settlement Agreement at the time that an agreement upon the monthly payment amounts are reached.

However, the Parties also agree that nothing herein will prohibit the Plan from Mowing the Judgment provided for herein if the Department of Justice and/or the Internal Revenue Service affirmatively refuse to agree to any monthly payments to the Plan,

6. Frank RasKauskas, ERG agrees to continue to make all required pension payments to Plan Participant Frank Raskauskas. After ERG begins making monthly payments accordance with either Section. 5 above or Section 8 below, the payments to Mr. Raskauskas will be credited against the monthly payment owed by ERG. All payments by ERG to Mr. Raskauskas made on behalf of the Plan, including those payments made on behalf of the Plan prior to the date of this Agreement, shall be credited against ERG's total liability under this Agreement of $4,515,565,00, plus Interest.

7. Conditions for Default. Upon the determination of the monthly payment amount to be made to the Internal Revenue Service and the monthly payment amount to be made to the Plan, the monthly payment to the Plan will be due on the first day of every month until payment in full made. If any monthly payment is not received by the Plan by the. 11th day of any month, ERG will be In default. ERG will have the opportunity to cure the default within thirty days, but the Plan is under no obligation to give notice of default,

In the event that a payment is not made by the 11th day of the month, the Plan will meet with ERG and confer in good faith in an attempt to resolve the matter prior to executing on the Judgment. However, if ERG is unable to cure the default within the thirty day period provided, and the meet and confer discussions between the Plan and ERG do not resolve the matter, the Plan will be entitled to take whatever steps it deems appropriate to enforce the Judgment,

8. Monthly Payment in lieu of Agreement. If the Parties and the IRS have not agreed to a monthly payment amount within 12 months of the execution of this Agreement, ERO shall begin making monthly payments to the Plan in the amount of either (1) $10,000 or (2) 50% of the amount by which average monthly revenue for the prior 12 months exceeds average monthly expenses for the prior 12 months, whichever is greater. Payments to the IRS over the prior 12 months shall be included in the calculation of average monthly expenses, The Plan shall have the right to inspect and audit ERG's accounting Meads until the Parties and the IRS agree on a monthly payment amount to the Plan, The Parties further agree that they will continue to work with the IRS to determine a monthly payment to the Plan approved by the IRS. Upon such agreement between the Parties and the IRS, the Parties agree to prepare a Supplement to this Agreement amending the monthly payment amount as approved by the IRS.

If any monthly payment due under this Section is not made by the 11th day of any month, ERG will be in default. ERG will have the opportunity to owe the default within thirty clays, but the Plan is under no obligation to give notice of default, In the event that a payment Is not made by the 11th day of the month, the Plan will meet with ERG and confer in good faith in an attempt to resolve the matter prior to executing on the Judgment, However, if ERG is unable to cure the default within the thirty-day period provided, and the meet and confer discussions between the Plan and ERG do not resolve the matter, the Plan will be entitled to lake whatever steps it deems appropriate to enforce the Judgment.

9. Offsets, Except as provided below, the Parties agree that if the Plan recovers a total of $8 million from ail sources, including the amounts received from BRG pursuant to this Agreement, based on or arising out of allegations that Burton Benson misappropriated or Improperly used Plan assets, then ERG shall not be required to pay the remaining balance owed under this Agreement at that time and the Stipulated Judgment will be deemed paid In full as of that time, However, any payments received by the Plan relating to its investment in Sargent Ranch shall not be included in the calculation of $8.0 million in payments to the Plan, (Sargent Ranch refers to real property comprised of 6198 acres, more or loss, located In Santa Clara and Santa Cruz Counties and described as Santa Clara County Assessor Parcel Nos. 810-37-006/0071008, 810-38-002/009/014/015/016/017 and 841-36-013 and Santa Cruz Assessor Parcel Nos. 110-201-04, 110-251-06, 110-271-01 and 110-281-01.)

It is agreed between the Parties that $8.0 million is a negotiated number whole the Trustee claims does not represent the full amount of the Plan's loss, Nothing herein shall prevent the Plan from, recovering additional amounts in excess of $8 million floor other responsible parties.

10. Waiver and Release. Except as sot forth below, upon the final payment provided for herein, the Plan will waive, release, relinquish, acquit, and forever discharge ERG, including its predecessor companies, successor companies, successors-in-interest, any trust that acquires controlling equity interest in ERG in its capacity as an owner of ERG stock, parent companies, sister companies, attorneys, subsidiary companies, partners, joint venturers, sureties, insurers, lenders, subcontractors, suppliers, assigns, members, managers, directors, officers, employees, agents, servants and affiliates of each of them, of and from any and all claims, demands, rights, liens, claims for relief, actions, causes of action, and the like, of every kind and nature whatsoever, known and unknown, suspected and unsuspected, anticipated and unanticipated, past, present and future, whether arising at law, under a contract, in tort, in equity, or otherwise, for ail Injuries, economic loss, damages, losses, attorneys' fees, costs, expenses, Or otherwise, including without limitation all consequential, general, special, and/or punitive damages, resulting or to result from, or in any way arising out of, related to, or in connection with any and all matters referred to in the pleading in the eases of United States. Benson, Case No, 12-or-00480-YGR, United States v. Benson, Case No. 14-cv-02071-Y0R, and ERG Aeraspace United States, Case No. 13-cv-02973-VC, including, but not limited to, any acts or Omissions of Burton Benson prior to the date hereof as Trustee of the Plan, However, nothing herein shall act as a release in any way of Burton Benson, Mark Benson, Erie Benson, Or Bradley Benson, their spouses or heirs, any entities controlled by them (except Energy Research & Generation, Inc, and ERO Aerospace), or any trusts, partnerships, or limited partnerships in which any one of them has an interest.

Upon the full execution of this Agreement, ERG, for itself and Its affiliates, agents, attorneys, parent corporations, officer's, directors, subsidiaries, sister companies, shareholders and successor In-Interest, hereby releases the Plan and Its fiduciaries, agents, attorneys and participants from any and all claims, demands, rights liens, claims for relief, actions, causes of action, and the like, of every kind end nature whatsoever, known and unknown, suspected and unsuspected, anticipated and unanticipated, past, present and figure, whether arising at law, under a contract, In torl, in equity, or otherwise, for all injuries, economic loss, damages, losses, attorneys' fees, costs, expenses, or otherwise, including without limitation all consequential, general, special, and/or punitive damages, resulting or to result from, or in any way arising out of, related to, or in connection with any act or omission to the date hereof.

11, Good Faith Compromise and No Admissions, This Agreement is the result de good faith compromise and settlement of disputed claims and shall not at any time, or for any purpose, be considered an admission of liability or of merit by any Party, or of liability or responsibility of the Parties, The Parties agree that this Agreement may not be offered Into evidence in any proceeding in which ERG and/or the Plan ate not parties,

12. Further Assurances. The Parties agree to execute such other documents and to take such other action as may be reasonably necessary to halter the purposes of this Settlement Agreement. This includes negotiating in good faith the monthly payment to be determined after the initial twelve-month period.

13, Governing Law. This Agreement shall be governed by, construed in and enforced in accordance with the laws of the State of California without regard to choice of law or conflict of law.

14. Amendments. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by each of the Patties affected thereby,

15. Waivers. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity,

16. Voluntary Agreement, The Parties represent that they have carefully road this Agreement, know its contents, and execute the Agreement voluntarily,

17. Severability. If for any reason any provision of this Agreement is determined to be Invalid or unenforceable, the remaining provisions of this Agreement nevertheless shall be construed, performed, and enforced as if the invalid or unenforceable provision had not been included in the text of the Agreement.

18. Drafting. The drafting and negotiation of this Agreement have icon participated in by each of the Parties, and for fill purposes, this Agreement shall be deemed to have been drafted jointly by each of the Parties,

19. Counterparts. If this Agreement is executed by signatures transmitted by facsimile or email in counterparts, each counterpart shall be deemed an original, and all counterparts so executed shall constitute one agreement binding Oil all of the Parties.

20 Eutlro Agreement. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties hereto concerning The subject matter hereof are contained in This Agreement. All prior and contemporaneous conversations, negotiations, Possible and alleged agreements, representations, covenants and warranties concerning this subject matter hereof are merged herein, This is tin integrated Agreement.

21, Attorncey's Fees and Costs. The Provided each Party complies with the terms and conditions to this Agreement, each Party shall bear its own attorney's fees and costs incurred through the execution of this Agreement, in any notion or proceeding to enforce the terms of This Agreement or to redress any violation of this Agreement or otherwise resolve any dispute between the Parties arising hereunder, the prevailing Party shall be entitled to recover its reasonable attorneys' fens kind other lent costs from the other Party,

22. Authority. The Parties represent and warrant That they have MI power, authority and capacity to execute this Agreement nod perform the obligations hereunder.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written.

18. Drafting. The drafting and negotiation of this Agreement have boon participated In by each of the Parties, and for All purposes, this Agmernent shun be deemed to haw been drafted jointly by oak of the Parties,

19. Countennyts. If this Agreement is exceuted by signatures transmitted by faoslrnllo or email in counterparts, each connterpart shall be domed an orlglnal, and all countorparts so executed shalt constitute one agreement binding on all the Parties.

20 Attorneys' Agreemmount All agreements, covenants, representations mitt warranties, express or Implied, oral or written, of the Parties hereto oncoming tiw subject matter hereof arc contained in this Agreement, All prior and contemporaneous conversations, negotiations, possible and allepd agreements, representations, covelltIlit8 and warranties concerning this subject matter hereof two merged herein, This Is an Integrated Agreement.

21. Attorneys' Fees and Costs. Provided each Part compliles Provided with the terms and conditions of this Agitoment, each Party shall bear Its own attorney's fees and costs inourred through the exeoution of this Agrecinent. In any notion or Providing to enforce the terms of this Agreement or to redress any violation of this Agreement or otherwise resolve any dispute between the Partles atising herounder, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and other legal ocsts from the other Party.

22, Authority. The Parties represent and warrant that they have Atli power, authority and capacity to motto this Agreement arid perform the obligations hereunder.

EXHIBIT A

Plaintiff Nicholas Saakvitne ("Baakvitne"), Trustee, Plan Administrator and Independent Fiduciary of the Energy, Research & Generation, Inc. Profit Sharing Plan and Associated Retirement Trust ("the Plan") alleges as follows against Defendants ENERGY, RESEARCH & GENERATION, INC., ERG AEROSPACE CORPORATION, and ERG MATERIALS AND AEROSPACE CORPORATION (collectively "ERG");

NATURE OF THE ACTION

1. Plaintiff brings this action to recover damages against Defendant ERG for breach of its fiduciary duty as Plan Administrator of the Plan, As a result of ERG's breach of its fiduciary duties, Burton Benson, the Trustee of the Plan prior to Saakvitne, was able to misappropriate millions of dollars from the Plan. This action is brought to recover from ERG those damages pursuant to 29 U.S.C. sections 1109 and 1132(a)(2).

JURISDICTION AND VENUE

2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. 1332.

3. Venue lies in this district pursuant to 28 U.S.C. § 1391(b).

THE PARTIES

4. Plaintiff is Nicholas Saakvitne ("Saakvitne"), Trustee, Plan Administrator and Independent FiduCiary of the Energy, Research & Generation, Inc, Profit Sharing Plan and Associated Retirement Trust ("the Plan"),

5. The Defendants are Energy, Research & Generation, Inc., ERG Aerospace Corporation, and ERG Materials and Aerospace Corporation (collectively "ERG"), in their capacity as the Plan Administrator for the Plan. As Plan Administrator, ERG owed a fiduciary duty to the Plan, which it breached by failing to faithfully carry out its duties as Administrator, including, among other things, monitoring the performance of Trustee Burton Benson and the performance of the Plan's portfolio. Burton Benson ("Benson") was thereby able to misappropriate millions of dollars from the Plan,

STATUTORY AND REGULATORY FRAMEWORK GOVERNING PENSION PLANS

6. ERISA established standards governing the operation of most private-sector employee benefit plans, including pension benefit plans. Pension benefit plans allow employees and their employers to make contributions, generally on a tax-deferred basis, to the employees' retirement fund. 29 U.S.C, § 1002(2)(A), Generally, under ERISA, pension plan contributions must be held in trust. 29 U.S.C. § 1103. When a contribution is made to a plan and placed in trust, the contribution becomes a plan asset. 29 U.S.C. 1102(92); 29 C.F.R. § 2510.3-401 and 102.

7. Under ERISA, an employee pension plan is established and maintained pursuant to a written instrument. 29 U.S.C. § 1102(a)(1). This written instrument is known as the "plan document," The plan document describes how and when an employee becomes eligible to participate in the plan, how the plan is to be funded (by employee and/or employer contributions), and the benefits provided by the plan. A plan document also describes the roles and duties of the plan's fiduciaries, 29 U.S.C. § 1102(b)-(o), including the plan administrator,

8. Generally, a "plan sponsor" establishes an ERISA-severed pension plan by adopting a pension plan document and establishing a trust to hold the plan's assets. 29 U.S.C. § § 1102(2) & (16), 1103, 1104, The plan sponsor also generally uses the plan document to retain its fiduciary authority to appoint the plan administrator, the plan trustee, and other fiduciaries,

9. A plan "trustee" is responsible for safeguarding pension plan assets and ensuring that they are invested prudently and in conformity with the directives of the trust agreement. 29 U.S.C. § 1104.

10. The "plan administrator" is responsible for the day-to-day administration of the plan, including but not limited to, enrollment of new participants, processing distributions to existing participants, and fulfilling the plan a reporting and disclosure requirements, 29 U.S.C. § § 1002(16)(A), 1021-1031. As part of its affirmative reporting duties, the plan administrator is required to file and publish an accurate and truthful Annual Report Form 5500 ("Form 5500") to the U.S. Department of Labor ("DOL"), 29 U.S.C. §§ 1023-1024, 1027. The plan administrator must provide accurate reports of plan assets and disclose any prohibited transactions on the Form 5500 to the DOL. See id.; 29 C.R.S. 2520.103-1.

11. The plan administrator also generally obtains an asset custodian to assist the administrator in holding the plan assets, In the case of the ERG Plan, the Plan Administrator also had a duty to monitor the Trustee, Burton Benson, and the performance of the Plan's portfolio. ERG failed to carry out any of its duties as Plan Administrator, thereby breaching its fiduciary duty to the Plan and allowing Burton Benson to misappropriate millions of dollars from the Plan.

12. Because of the nature of the functions they perform, the plan administrator and trustee are "fiduciaries" of the pension plan and its assets, 29 U.S.C. § 1002(21)(A),

13. Under PAM, a fiduciary owes four basic duties to a pension plan and its participants: a duty of loyalty, a duty of prudence, a duty to diversify investments, and a duty to follow the plan documents. Specifically, a fiduciary shall:

Discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and

29 U.S.C. § 1104.

14. Under ERISA, a fiduciary may not engage in "prohibited transactions" using plan assets, including self-dealing, Specifically, a fiduciary "shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect, lending of money or other extension of credit between the plan and a party-in-interest . . . (or) transfer to, or use by or for the benefit of, a party-in-interest, of any assets of the plan," 29 U.S.C. 1106, Further, under ERISA, a fiduciary "shall not . . . deal with the assets of the plan in his own interest or for his own account," Id.

15. Under MUSA, a "party-in-interest" includes certain relatives of a fiduciary and any employee of the employer who sponsored the plan. 29 U.S.C. § 1002(14)(F) & (H).

FACTUAL ALLEGATIONS

16. ERG is a California corporation with offices located at 900 Stanford Avenue, Oakland, California. ERG was founded in 1967 and was the originator of various materials that are utilized in the aerospace, defense and scientific industries. ERG was known as Energy, Research and Generation, Inc. Until approximately 2006, at which point the business was reincorporated as ERG Aerospace Corporation, On information and belief, both companies now do business as ERG Materials and Aerospace Corporation.

17. Benson was the President of ERG until approximately 2000 and was Chief Executive Officer of ERG through at least Webruary 2014.

18. ERG sponsors the Plan. The Plan was made effective January 1, 1977, as a pension plan to provide retirement benefits to the employees of ERG. ERG as the Vlan's sponsor created the Plan by adopting the plan document and establishing a trust to hold the Plan's assets, As the Plan's sponsor, ERG had the power to appoint the plan administrator, the plan trustee, and other fiduciaries,

19. The Plan is a covered pension plan pursuant to 29 U.S.C. § 1002. Like ERG, the Plan maintained a business address of 900 Stanford Avenue, Oakland, California. The Plan currently has 26 participants,

20. The Plan is subject to BMA's standards governing the operation of most private-sector employee benefit plans, including pension benefit plans.

21. On December 28, 1994, and again on May 28, 2002, Benson accepted the appointment as the sole, discretionary trustee of the Plan under the terms of the Plan Document and was empowered by the Plan Document to hold title to and direct the investment of the Plan's assets for the sole benefit of the Plan's participants and beneficiaries, As the pension plan's trustee, Benson is responsible for safeguarding the Plan assets and ensuring that they are invested prudently and in conformity with the directives of the Plan Document.

22. During all time material to this Complaint, ERG was the duly appointed Plan Administrator to the Plan,

23. On or around September 6, 1985, Benson opened the B.O. Beason, Trustee, ERG Retirement Trust custodial account with Vanguard ("Plan Vanguard Account;") to hold the Plan's assets,

24. The Plan Vanguard Account is included among the Plan's liquid assets, On December 31 for each Plan year from 2010 through 2012, Vanguard reported the Plan Vanguard Account holdings totaled 005,617 (2010), 623,467 (2011), and § 7,315 (2012), for the respective Plan years,

25. According to the [Form 5500 filed on behalf of the Plan, as of Plan year 2009, the Plan contained a reported asset base of $9,744,757, As of April 2014, the Plan had no remaining liquid assets in the known custodial accounts held at Vanguard, Charles Schwab and Company, and Bank of St. Croix, a bank insured by the Foderal Deposit Insurance Corporation ("FDIC") in the U.S. Virgin Islands.

26. Beginning at least as early as July 2005, Benson devised a scheme to transfer funds from the Plan Vanguard Account for his own personal benefit and the benefit of his family, Prom at least 2005 to 2013, Benson transferred at least $6.1 million in Plan assets to entities owned or controlled by Benson or to third parties for payment of Benson's and his family's personal debts. Benson thus engaged in prohibited transactions using Plan assets.

27. Benson's conduct has resulted in an indictment by the United States Government, The criminal ease against Benson currently is pending before the District Court for the Northern District of California. USA v. Burton Orville Benson, Case No. CRT2-00400-YGR.)

28. The United States also Tiled a civil action against Benson. USA v. Burton Orville Benson, Case No. 14-cv-2071-YGR copy of the Government's Complaint is attached hereto as Exhibit A and the allegations therein are incorporated by reference as though set forth in full herein,

29. In furtherance of the scheme, Benson represented to Plan participants that the Plan's assets included investments in multiple non-qualifying assets. Non-qualifying assets are assets in which ERISA plans like the Plan are permitted to invest, but only if the Plan's administrator and trustee adhere to specific heightened reporting or binding requirements set forth under ERISA regulations. See 29 C.F.R. 2520.104-146. In the case of the Plan, Benson represented that the Plan used the liquid assets in the Plan Vanguard Account to make a number of real estate and commercial investments through entities located in California, Nevada, and the U.S. Virgin Islands, Benson further represented to the Plan participants that the investments were secured by first and second position Deeds of Trust filed on the investment properties,

30. ERG, as Plan Administrator, did not properly record or otherwise document the Plan's interest in any of the non-qualifying assets. ERG also failed to comply with the heightened reporting and bonding requirements under ERMA with respect to the Plan's non-qualifying assets. ERG's failure to follow these requirements put the Plan at risk for unbonded losses, As Plan Administrator, ERG is also responsible for the false the Department of Labor.

31. ERG also failed to fulfill its duty under the Plan Document to monitor Benson's performance as Trustee and to monitor the performance of the Plan's portfolio or to discover that Benson used the Plan's portfolio to engage in prohibited transactions. ERG's failure to take the stops required of it as Plan Administrator allowed Benson to carry on his fraudulent scheme without detection over a period of many years and constituted a breach of its fiduciary duties, ERG, 48 Plan Administrator, had actual knowledge of Benson's misdeeds as Trustee because Benson was also the CEO of ERG and purported to not for ERG in its role as Plan Administrator.

FIRST CAUSE OF ACTION

(For Violations of 29 U.S.C. § § 1132 and 1109)

32. Plaintiff reasserts and realleges each and every allegation contained in paragraphs 1 through 31 as if fully set forth herein.

33. As set forth above, ERG failed to satisfy its fiduciary duties to the Plan in its role as Plan Administrator, In that regard, ERG failed to comply with the specific heightened reporting requirements for non-qualifying investments made by Benson using Plan assets, further failed to satisfy bonding requirements, and failed to ensure that the Plan received an interest in a corresponding asset when its funds were used on behalf of Benson, Nor did ERG properly account for such transactions or properly prepare Forms 5500 to be provided to the Department of Labor.

34. Furthermore, ERG, in its role as Plan Administrator, also failed to properly account for those transactions whereby Benson simply misappropriated Plan assets for his own benefit and failed to make any investment on behalf of the Plan, ERG, as Plan Administrator, failed to comply with its duty pursuant to the Plan Document, to monitor Benson's conduct as Trustee, or to monitor the investment portfolio.

35. By failing to comply with its fiduciary duties, ERG, in its role as Plan Administrator, enabled Benson to conceal his misappropriation of Plan assets and to engage in a continuing course of conduct to misappropriate Plan assets for a period of at least seven years, ERG's conduct caused the Plan to lose at least $6.1 million, plus interest front the date of the various fraudulent transactions.

36. As a result of its breach of fiduciary duty, ERG is liable to the Plan for all of the losses it suffered thereby pursuant to 29 U.S.C. § § 1109 and 1132.

WHEREFORE, the Plan prays for judgment against Defendants on the sole cause of action alleged herein as follows;

1. For the sum of no less than $6.1 million, plus interest at the legal rate, which amount represents the funds misappropriated from the Plant

2. Vor the payment of all Court costa, expenses, and attorneys' fees incurred in bringing this action, pursuant to 29 U.S.C. § 1132(g); and

3. For such other legal or equitable relief as this Court deems just and appropriate,

EXHIBIT B

IT IS HEREBY STIPULATED between Plaintiff NICHOLAS SAAKVITNE, TRUSTEE, PLAN ADMINISTRATOR AND INDEPENDENT FIDUCIARY OF THE ENERGY, RESEARCH & GENERATION, INC. PROFIT SHARING PLAN AND ASSOCIATED RETIREMENT TRUST ("the Plan"), on the one hand, and Defendants ENERGY, RESEARCH & GENERATION, INC., ERG AEROSPACE CORPORATION, and ERG MATERIALS AND AEROSPACE CORPORATION (collectively, ERG), on the other, as follows:

1. On or about July 1, 2015, Plaintiff Riled the Complaint heroin alleging Defendants broached their fiduciary duty to the Plan as the Plan Administrator by failing to fulfill its reporting and disclosure requirements, filing false and misleading Forms 5509 with the Department of Labor, failing to comply with the heightened reporting regolromonts for non-qualified assets, failing to obtain a bond with respects to non-qualifying assets, and thereby enabled and assisted Burton Benson, the former Plan Trustee, in misappropriating at least $6,1 million from the Plan,

2. On or about June 20, 2015, Plaintiff and Defendants executed a Settlement Agreement providing, among other things, that judgment shall be entered in favor of Plaintiff and against Defendants in the amount of $4,515,565.00,

3. In order to avoid the expense and risk of litigation, Plaintiff and Defendant hereby stipulate that the Court may forthwith enter judgment in favor of Plaintiff and against Defendants. Attached hereto as Exhibit A is the Proposed Stipulated judgment.

1. On or about July 1, 2015, Plaintiff filed the Complaint herein alleging Defendants breached their fiduciary duty to the Plan as the Plan Administrator by failing to fulfill its reporting and disclosure requirements, filing false and misleading Forme 5500 with the Department of labor, failing to comply with the heightened reporting requirements for non-qualified assets, failing to obtain a bond with respect to non-qualifying assets, and thereby enabled and assisted Burton Benson, the former Plan Trustee, in misappropriating at least $6.1 million from the Plan.

2. On or about June 20, 2015, Plaintiff and Defendants executed a Settlement Agreement providing, among other things, that judgment shall be entered in favor of Plaintiff and against Defendants in the amount of $4,515,565,00.

3. In order to avoid the expense and risk of litigation, Plaintiff and Defendant hereby stipulate that the Court may forthwith enter `Judgment in favor of Plaintiff and against Defendants, Attached hereto as exhibit A is the Proposed stipulated Judgment.

EXHIBIT A

In the above-entitled cause, Plaintiff NICHOLAS SAAKVITNE, TRUSTEE, PLAN ADMINISTRATOR AND INDEPENDENT FIDUCIARY OF THE ENERGY, RESEARCH & GENERATION, INC. PROFIT SHARING PLAN AND ASSOCIATED RETIREMENT TRUST and Defendants ENERGY, RESEARCH & GENERATION, INC., ERG AEROSPACE CORPORATION, and ERG MATERIALS AND AEROSPACE CORPORATION (collectively, ERG), have stipulated that judgment may be entered in favor of Plaintiff and against Defendants in the sum of, $4,515,565,00, plus interest at the rate of 1% per annum beginning on June 1, 2015, which interest rate will inorease by 1% every two years until reaching a rate of 4% on June 1, 2021

IT IS HEREBY ORDERED that Judgment is hereby entered in favor of Plaintiff NICHOLAS SAAKVITNE, TRUSTEE, PLAN ADMINISTRATOR AND INDEPENDENT FIDUCIARY OF THE ENERGY, RESEARCH & GENERATION, INC. PROFIT SHARING PLAN AND ASSOCIATED RETIREMENT TRUST and against Defendants ENERGY, RESEARCH GENERATION, INC., ERG AEROSPACE CORPORATION, and ERG MATERIALS AND AEROSPACE CORPORATION in the sum of 4,515,50.00, plus interest at the rate of 1% per annum beginning on June 1, 2015, which interest rate will inorease by 1% per annum every two years until reaching an interest rate of 4% on June 1, 2021,

EXHIBIT 2

EXHIBIT 3

IT IS HEREBY STIPULATED ANT) AGREED between the United States of America, Nicholas Saakvitne ("Saakvitne"), as Trustee, Plan Administrator, and Independent Fiduciary of the Energy Research and Generation, Inc. Profit Sharing Plan and Associated Retirement Trust ("the Plan"), Energy Research and Generation, Inc. and ERG Aerospace (collectively "ERG"), Bryan Leyda ("Leyda"), Evelyn Hermsmeier ("Hermsincier"), Antonio Gomez, Berry Seamon, David Crotzer, Ernie Ward, Noel Crisolo, Melody Carter, Logan Thiesen, Edward Clark, Robert Perez and Stephen Dyer, by and through their respective counsel of record, as follows:

1. The Parties hereto wish to resolve all claims asserted in or related to the following pending cases: United States of America v. Burton Benson, Case No. 14-cv-2071-YGR; and Saakvitne v. Benson, Case No. 15-cv-5091-YOR ("the Burton Benson Litigation").

2. The Parties hereto, including the participants in the Plan, and Elizabeth Benson have reached a Settlement Agreement ("the Agreement") resolving all claims asserted in or arising out of the Burton Benson Litigation, contingent upon the Court executing the attached Order. The Agreement is attached hereto as Exhibit A and is incorporated by reference herein.(Exhibit 2 to the Settlement Agreement, which sets forth participant balances and percentage interests in the Plan, is not attached to the version attached to this Stipulation and [Proposed] Order to protect the privacy of the participants and will be provided privately to the Court.) The signatories to the Agreement have submitted to the jurisdiction of this Court for the purposes of the attached Order.

3. ERG shall make payments to the Plan in accordance with Paragraph 1 of the Settlement Agreement.

4. In accordance with Paragraph 2 of the Agreement, the Plan shall transfer to ERG any and all right, title or interest the Plan may have in the following: (1) the Plan's interest in Sargent Ranch Partners, LLC ("the Sargent Ranch Units"); (2) the Plan's interest in or claims against real property in the U.S. Virgin Islands, including the properties located at 3 King Cross and 254 Estate Glynn ("the Virgin Islands Properties"); (3) the Plan's interest, if any, in Acacia Properties, LLC, dba Benson Properties, Ltd., including, but not limited to, the properties located at 189 Ivy Drive, Orinda, California; 266 Elsie Drive, Danville, California; 3341 N. Lucille Lane, Lafayette, California; 7 Mount Pleasant, St. Croix; 3 Arroyo Drive, Orinda, California (subject to a claim by Evelyn Hermsmeier that she owns 3 Arroyo Drive); 143 Alice Lane, Orinda, California, subject to all liens and encumbrances against the properties; and (4) the Plan's interest in or claim to the real property located at 15260 S. Shore Drive, Truckee, California ("the Donner Lake Property").

5. The Parties, including the United States and the Department of Labor, also agree that the transactions described in Paragraph 2 of the Agreement are exempt from the prohibited transaction provisions of ERISA § 406(a)(1)(A) [29 U.S.C. § 1106(a)(1)(A)] pursuant to Prohibited Transaction Class Exemption 1994-71. (Exemption 94-71). The Parties, specifically including the United States and the United States Department of Labor, further agree that the installment payments by ERG to the Plan in exchange for the transfer of property referred to above also are exempt from the prohibited transaction provisions of ERISA § 406(a)(1)(A) [29 U.S.C. § 1106(a)(1)(A)] pursuant to Prohibited Transaction Class Exemption 94-71.

6. The Agreement and this Stipulation arc contingent upon satisfaction of the conditions set forth in Paragraphs 5 and 6 of the Agreement relating to the Department of Justice Tax Division and California Franchise Tax Board.

7. The Parties have agreed that the cases of United States of America v. Burton Benson, Case No. 14-cv-2071-YGR; and Saakvitne v. Benson, Case No. 15-cv-5091-YGR shall be dismissed with prejudice upon the effective date of the Agreement; however, the Court will retain jurisdiction to enforce the Agreement and this Stipulation and Order until ERG completes all of its obligations under the Agreement and this Stipulation. Nicholas Saakvitne, the Trustee appointed by the Court, should be removed upon the effective date of the appointment of a new Trustee.

8. The Parties have agreed that the Plan will pay Elizabeth Benson $12,000 per month for 21 months or until her death, whichever comes first, in full satisfaction of Burton Benson's interest in the Plan and of his beneficiary's and/or heirs' interest in the Plan. The Parties also have agreed to the entry of a Court Order forfeiting Burton Benson's participant interest in the Plan in excess of the amount to be paid to Elizabeth Benson.

9. The Parties have agreed that the Civil Forfeiture Agreements entered into by Bradley Benson and Eric Benson are declared null and void. However, Bradley Benson will cooperate to transfer good title to the Donner Lake Property to the Plan, subject to transfer thereafter to ERG.

10. The Plan has agreed to pay Evelyn Hermsmeier $250,000 and ERG has agreed to pay her $200,000 in full satisfaction of her claims relating to the ERG Ford Trust. The Parties have agreed that all assets nominally held in the name of the alleged ERG Ford Trust are assets of the Plan and are to be deemed transferred to the Plan.

10. The Parties have agreed to release all claims against each other as set forth in Sections 15 through 17 of the Agreement. The Parties have agreed that the Plan will release any security interests in the properties mentioned in Paragraphs 2 and 18 of the Agreement in accordance with the terms set forth in Paragraph 18 of the Agreement.

12. At the time of the transfer of the Sargent Ranch Units, ERG has agreed it will pledge those Units to the Plan in accordance with the provisions of the California Uniform commercial Code. The pledge will be released by the Plan in accordance with the terms of the Agreement.

13. At the time of the transfer of the Donner Lake Property, ERG has agreed that it will provide the Plan with a first deed of trust or other appropriate lien against the Donner Lake Property. The Plan will release the deed of trust or lien in accordance with the terms of the Agreement.

14. As part of the Agreement, the Plan has agreed to transfer to ERG the Plan's interests in properties located at 3 King Cross and 254 Estate Glynn in the Virgin Islands, which interests currently are being foreclosed upon by the Plan. ERG has agreed that upon successful completion of the foreclosure lawsuit, ERG will provide the Plan with first position liens against 3 King Cross and 254 Estate Glynn upon ERG taking ownership of the properties. The Plan will release the deed of trust or lien in accordance with the terms of the Agreement. If the properties are sold to a higher bidder at the foreclosure auction, the foreclosure proceeds will be delivered directly from escrow to the Plan and will be applied against the balance owed pursuant to the Agreement.

15. The Parties also have agreed that if ERG sells any of the properties referred to in Paragraph 2 of the Agreement before ERG has paid the Plan the full amount due pursuant to the Agreement, then ERG will transfer the net proceeds to the Plan directly from escrow, until the full amount of $3,250,000, plus interest, has been paid to the Plan.

16. In the event of a default by ERG, and the failure of ERG to cure that default within 60 days, the Plan may take whatever steps it deems appropriate to enforce and/or foreclose on its security interests in the Sargent Ranch Units, the Donner Lake Property and/or the Virgin Islands Properties.

17. The Parties have agreed that distributions to the participants in the Plan will be paid in accordance with Exhibit 2 to the Settlement Agreement, and that all partial distributions will be made pro rata based on Exhibit 2 to the Settlement Agreement.

the Agreement, then ERG will transfer the net proceeds to the Plan directly from escrow, until the full amount of $3,250,000, pins interest, has been paid to the Plan,

16. In the event of a default by ERG, and die thriller of ERG to em that default within 60 days, the Plan may take whatever steps it deems appropriate to enforce and/or foreclose on its security interests in the Sargent Ranch Units, the Donner Lake Property and/or the Virgin Islands Properties,

17. The Parties have agreed that distributions to the participants in. the Plan will be paid in accordance with Exhibit 2 to the Settlement Agreement, and that all partial distributions will be made pro rata based on Exhibit 2 to the Settlement Agreement,

ORDER

Having reviewed the Stipulation of the Parties, and good cause appearing, IT IS HEREBY ORDERED us follows:

1. The case of United States of America v. Benson, Case No, 14-cv-207 YOR, is hereby dismissed with prejudice,

2. Tim case of Soakvinte v. Benson, Case No. 15-cv-5091-YOR, is dismissed with prejudice, However, the Court retains jurisdiction to enforce the Agreement (Exhibit A hereto) and this Stipulation and Order until ERG completes all of its obligations under the Agreement and this Stipulation and Order.

3. The Court hereby orders that all assets nominally in the name of the alleged ERG Ford Trust are assets of the Plan, and are hereby deemed transferred to the Plan, Evelyn Hermsmeirer will cooperate with the Plan and will execute any documents necessary to formally transfer assets of the ERG Ford Trust to the Plan. Except as provided in Paragraph 10 of this Stipulation, it Is hereby ordered that Hermsmeier has no further interest in the ERG Ford Trust or assets nominally in its name,

4. Except as provided in Paragraph 8 of this Stipulation, the Court hereby orders pursuant to 26 U.S.C. § 401(a)(13)(C)(ii) and 29 U.S.C. § 1056(d)(4)(B) that Burton Benson's interest as a participant in the Plan and that of his beneficiaries and/or heirs is hereby forfeited due to Burton Benson's fiduciary breaches as Trustee date Plan

5. The Court hereby finds that the transfers by the Plan to ERG of property or of claims to or interests in property described in Paragraph 4 of the attached Stipulation are exempt from the prohibited transactions provisions of ERISA [29 U.S.C. § 1106(a)] pursuant to Prohibited Transaction Class Exemption 1994-71. The transactions provided for in the Agreement are the following: the transfer of (1) the Plan's interest in Sargent Ranch Partners, LLC ("the Sargent Ranch Units"); (2) the Plan's interest in or claims against real property in the U.S. Virgin Islands, including the properties located at 3 King .Cross and 254 Estate Glynn ("the Virgin Islands Properties"); (3) the Plan's interest, if any, in Acacia Properties, LLC, dba Benson Properties, Ltd., including, but not limited to, the properties located at 189 Ivy Drive, Orinda, California; 266 Elsie Drive, Danville, California; 3341 N. Lucille Lane, Lafayette, California; 7 Mount Pleasant, St. Croix; 3 Arroyo Drive, Orinda, California (subject to a claim by Evelyn Hermsmeier that she owns 3 Arroyo Drive); 143 Alice Lane, Orinda, California, subject to all liens and encumbrances against the properties; and (4) the Plan's interest in or claim to the real property located at 15260 S. Shore Drive, Truckee, California ("the Donner Lake Property"). The Court hereby also finds that the installment payments by ERG to the Plan in exchange for the transfer of the properties referred to above are exempt from the prohibited transactions provisions of ERISA [29 U.S.C. § 1106(a)] pursuant to Prohibited Transaction Class Exemption 1994-71.

6. Thomas Dillon is hereby appointed as the new Trustee of the Plan in place of Nicholas Saakvitne ("Saakvitne"), and Saakvitne is hereby immediately relieved of all of his duties to the Plan.

7. Distributions by the new Trustee to the participants will be made in accordance with the Settlement Agreement.

8. In the event of a default by ERG with respect to its obligations to the Plan pursuant to the Settlement Agreement ("the Agreement") and/or this Stipulation, and the failure to cure that default within 60 days, the Plan may take whatever steps it deems appropriate to enforce or foreclose on its security interests in the Sargent Ranch Units, the Donner Lake Property and/or the Virgin Islands Properties.

IT IS SO ORDERED.