Garman Declaration by Boxer47

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									                             Case 08-10474-mkn             Doc 590        Entered 02/24/11 18:55:36             Page 1 of 3


                      1    GORDON SILVER                                                                   E-Filed   212-911(
                           GREGORY E. GARMAN, ESQ.
                     2     Nevada Bar No. 6654
                           E-mail: ggarman@gordonsilver.com
                      3                           y.,
                           3960 Howard Hughes Pkw 9th Floor
                           Las Vegas, Nevada 89169
                     4     Telephone (702) 796-5555
                           Facsimile (702) 369-2666
                      5    Attorney for Zyen, LLC and
                           Manzen, LLC, d/b/a Xyience
                      6
                                                       UNITED STATES BANKRUPTCY COURT
                      7
                                                             FOR THE DISTRICT OF NEVADA
                      8
                           In re:                                                      Case No.: BK-S-08-10474-MKN
                      9                                                                Chapter 11
                           XYIENCE INCORPORATED,
                     10
                                             Debtor.                                   Date: OST Pending
                     11                                                                Time: OST Pending

                     12
                            DECLARATION OF GREGORY E. GARMAN, ESQ. IN SUPPORT OF EMERGENCY
                     13              MOTION FOR PLAN IMPLEMENTATION INJUNCTION

                     14             I, Gregory E. Garman, Esq., hereby declare as follows:
                     15             1.        I am over the age of 18 and am mentally competent. I am a shareholder at the law

                     16    firm of Gordon Silver, which has its offices at 3960 Howard Hughes Parkway, 9th Floor, Las
                     17    Vegas, Nevada, 89169. I am duly licensed to practice law in the State of Nevada.

                     18             2.        I am the counsel for Zyen, LLC ("Zyen") and Manzen, LLC, a Nevada limited

                     19    liability company d/b/a Xyience ("Xyience") and have personal knowledge of the facts in this

                     20    matter and if called upon to testify, could and would do so. I make this declaration in support of
                     21    Zyen and Xyience's Emergency Motion For Plan Implementation Injunction (the "Motion").1
                     22             3.        On January 28, 2011, I sent an email to Bergeron (the "January 28, 2011 Garman

                     23    Email"), a true and correct copy of which is attached hereto as Exhibit "1."
                     24             4.        Notably, during the February 10, 2100 Leave to Amend Hearing, this Court
                     25    advised that the Court is not persuaded that Bergeron has standing to attempt to act on behalf of

                     26    the shareholders.
                     27
                            All capitalized, undefined terms herein shall have the meaning ascribed to them in the Motion.
                     28
     Gordon Silver
     Attorneys At Law
        Ninth Floor        101551-001/1141871.doc
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                            Case 08-10474-mkn            Doc 590     Entered 02/24/11 18:55:36      Page 2 of 3


                      1             5.       The Leave to Amend Motion was denied in open Court on February 10, 2011 (the

                     2     "Leave to Amend Hearing").

                     3              6.       On February 14, 2011, I received an electronic mail from Bergeron ("February

                     4     14, 2011 Garman Email"), a true and correct copy of which is attached hereto as Exhibit "2."

                      5             7.       At 3:19 p.m. on February 15, 2011, Bergeron sent me an electronic mail (the

                     6     "First February 15, 2011 Garman Email"), a true and correct copy of which is attached hereto as

                      7    Exhibit "3."

                      8             8.       I responded to the First February 15, 2011 Garman Email by sending an electronic

                      9    mail to Bergeron (the "Response to First February 15, 2011 Garman Email"), a true and correct

                     10    copy of which is attached hereto as Exhibit "4."

                     11             9.       At 3:54 p.m. on February 15, 2011, Bergeron sent me another electronic mail (the

                     12    "Second Series of February 15, 2011 Garman Emails"), a true and correct copy of which is

                     13    attached hereto as Exhibit "5." This electronic mail was then followed by two additional

                     14    electronic mails from Bergeron, true and correct copies of which are attached hereto as Exhibits

                     15    "6" and "7"

                     16             10.       In response to the Second Series of February 15, 2011 Garman Emails, I sent an

                     17    electronic mail to Bergeron, a true and correct copy of which is attached hereto as Exhibit "8."

                     18             11.       My response to the Second Series of February 15, 2011 Garman Emails was met

                     19    with yet another electronic mail from Bergeron (the "Third February 15, 2011 Garman Email"),

                     20    a true and correct copy of which is attached hereto as Exhibit "9."

                     21             12.       In response to Bergeron's threats, I have obtained a temporary protective order

                     22    against Bergeron.

                     23             13.       Through a website named the scarlet lawyer that has now been taken down,

                     24    Bergeron posted a picture of me, wrote disparaging comments about me, and invited viewers to

                     25    click on a link to send me disparaging electronic mails.

                     26
                     27
                     28
     Gordon Silver
     Attorneys At Law                                                         2
        Ninth Floor        101551-001/1141871.doc
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
                            Case 08-10474-mkn           Doc 590     Entered 02/24/11 18:55:36         Page 3 of 3


                      1             14.	      A true and correct copy of the Preliminary Injunction obtained from the

                      2    Adversary Proceeding docket is attached hereto as Exhibit "10."
                      3             I declare under penalty of perjury of the laws of the United States that these facts are true
                      4    to the best of my knowledge and belief.
                      5             DATED this 2- Mday of February, 2011.

                      6

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     Gordon Silver
     Attorneys At Law
        Ninth Floor
                                                                              3
                           101551-001/1141871.doc
3960 Howard Hughes Pkwy
 Las Vegas, Nevada 89169
      (702) 796-5555
Case 08-10474-mkn   Doc 590-1   Entered 02/24/11 18:55:36   Page 1 of 25




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                Case 08-10474-mkn         Doc 590-1      Entered 02/24/11 18:55:36        Page 2 of 25

Greg Garman

From:	                     Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                     Friday, January 28, 2011 2:04 PM
To:	                       John Lennon
Cc:	                       Greg Garman; Michael Levy
Subject:	                  Re: Heads Up


What are you all so afraid of?

I just want to ask a few questions.

Lawyers don't intimidate me, John. I tend not to trust their advice when they are working for the other side, too.
Greg and Mike, neither of you should talk about what one should not do. I'll save clarification on that for the
hearing on February 20th.

I'm on to your game. Technology is a wonderful thing. I can almost hear what you are thinking. If none of you
talk, someone else will, on or off the record. People are already talking. I know what's going on.

Go find some more lawyers to email me.

Maybe that will help you in your attempts to bury the truth. Maybe not. Either way it tells me you're nervous.

I have some compelling evidence. I know the judge is going to be extremely impressed with the latest
revelations. Bleed it out. Do your thing. I'm on the case, and I won't let it go un-noticed.

On Fri, Jan 28, 2011 at 3:45 PM, John Lennon <jlennon@xyience.com> wrote:
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

Greg:

Thanks for compiling the email response to Rich Bergeron. This will advise you that at 3:10 EST (over an hour
after you had forwarded your email to him requesting that he refrain from any further contact) I received a voice
mail message from Richard Bergeron. The content was similar to his initial email to me sent late this past
Monsay night (January 24th) and read by me early Tuesday morning (January 25th). I will retain that message
and forward it to you when I figure how to do so with my new cell phone.

Best regards,

John

From: Greg Garman [GEG@GORDONSILVER.com]
Sent: Friday, January 28, 2011 11:03 AM
To: 'rich.bergeron@gmail.com'
Cc: John Lennon; Michael Levy
Subject: FW: Heads Up

 Mr. Bergeron, as you know, I am counsel to the operating company that holds the rights to
 Xyience. Notwithstanding your batting average of .000, you continue to file frivolous motions seeking
 sanctions against the company and its officers. I have instructed Mr. Lennon, and all others officers and
 employees of Xyience, not to communicate with you in any form on any matter. In addition, any response to
                                                          1
                 Case 08-10474-mkn          Doc 590-1      Entered 02/24/11 18:55:36          Page 3 of 25
this email will go unanswered by me. Finally, please allow this email to serve as notice that ANY future
pleadings filed
will result in a request for damages including but not limited reimbursement of attorney's fees and costs.


Gregory Garman, Esq.
Gordon Silver
3960 Howard Hughes Pkwy.
Ninth Floor
Las Vegas, NV 89169
Tel: 702.796.5555
Fax: 702.369.2666
E-mail: GEG@GORDONSILVER.com

From: Rich Bergeron [rich.bergeron@gmail.com]
Sent: Friday, January 28, 2011 6:34 AM
To: John Lennon
Subject: Re: Heads Up

Mr. Lennon,

I'd like to speak with you today if you're available. I'll try to give you a call this afternoon. There's a lot you
need to know about.

Thanks,

Rich


              Information from ESET NOD32 Antivirus, version of virus signature database 5827 (20110128)


The message was checked by ESET NOD32 Antivirus.

http://www.eset.com



              Information from ESET NOD32 Antivirus, version of virus signature database 5827 (20110128)


The message was checked by ESET NOD32 Antivirus.

http://www.eset.com


Gordon Silver Standard Disclaimer
DO NOT read, copy or disseminate this communication unless you are the intended addressee. This e-mail
communication may contain confidential and/or privileged information. If you have received this
communication in error, please call us (collect) immediately at (702) 796-5555. Also please e-mail the sender
and notify the sender immediately that you have received the communication in error.
                                                             2
                Case 08-10474-mkn         Doc 590-1     Entered 02/24/11 18:55:36        Page 4 of 25



Tax Opinion Disclaimer
To comply with IRS regulations, we advise that any discussion of Federal tax issues in this E-mail was not
intended or written to be used, and cannot be used by you, i) to avoid any penalties imposed under the Internal
Revenue Code or, ii) to promote, market or recommend to another party any transaction or matter addressed
herein.




Rich Bergeron
Editor/Writer/Webmaster
www.unlimitedfightnews.com
www.fightnewsunlimited.com
www.fightspaceonline.com
www.Memorialsforheroes.com
www.anthonypalermomemorial.info
www.rocky49wins.com
www.battleofthebadges.info
www.eyesforcuba.org
617-209-4325

SPONSORED BY:
http://stores.ebay.com/supplements-wholesale28
www.drinkredux.com
www.primeathletics.com




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Greg Garman
From:	                     Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                     Monday, February 14, 2011 9:23 PM
To:	                       Greg Garman
Subject:	                  RESTRAINING ORDER


Greg,

As opposing counsel I would strongly advise against going for a restraining order on me. I have a full record of
every interaction I've had with everyone related to Xyience since I got here last week. I never made a single
threat to anyone. I'm asking questions. You yourself put the challenge out at the hearing by saying I'm a
"purported" investigative reporter. When I start living up to what I'm purported to be you go and try to file a
restraining order based on false evidence? Where's that going to go when I come out with the actual recording
of my interactions with John Villari? He and Camaron Rios are lying to save their skins. I've got evidence
they're involved in steroid sales over at Wanderlei Silva's gym. Do you really want that to come out that the
Fertittas are insulating and backing a guy trying to sell steroids to MMA fighters?

I'm a journalist, Greg. I know the rules and the boundaries. I'm doing nothing wrong. Don Redlin knows that.
You need to understand that, too.

You want to make things harder, you go right ahead. I'll hit you with more sanctions in the amended motion
when the motion to amend is overturned at the 9th Circuit. Maybe I'll take Judge King's advice and write up an
amended version of the 9011 claim to go with a new motion to amend. Jon Backman said it himself that he was
afraid to file a single motion because of the Rule 9011 situation. He knows my legal background on this is solid,
and that's why he settled.

I never went to Camaron Rios' house. I only left messages on his phone, and none of it was threatening. You'll
get nowhere trying to peddle those accusations in front of a judge when I can prove I have all these interactions
and phone calls on tape. I'm not going to risk any physical confrontation or interaction with anyone. I don't
work that way, because I don't have to. I know the truth hurts in this case more than anything else. The judge is
saying I have to personally appear from now on. So, what's the incentive for me to keep fighting this from afar?
Why not move out to Vegas and take you scumbags on in your own backyard? I have a place to stay, and this
place is a haven for my day job, so it makes sense.

I know, I know, who cares, right? After all, if I move out here that makes your job more profitable. The more I
fight the Fertittas and Xyience the more you get paid. I'm really hoping that's your mentality, anyway. I'm even
hoping you try to sue me again. Why not? More money for you, right? More money the Fertittas have to pay for
a case that has no merit. It's a win win situation for you. Before you do any of that, though, you ought to
consider what's kept me going this long: THE TRUTH ALWAYS SHINES THROUGH IN THE END. You can
lie all day and think it will stick, but sooner or later the chain of lies you have to tell to back the first lie will
expose your deception. It's great that you continue to under estimate me. I win no matter how you slice it, and
your $450 an hour or whatever you charge is going to add up. The judge even made it seem like I was beating
you guys up because I have no overhead. You have your advantages you get to use to try to crush me, but I can't
use my main advantage as an equalizer? That's just wrong. I know the 9th Circuit will agree.

The judge didn't even read the paperwork he would be required to in order to make an educated decision, and he
ruled on the spot instead of taking it under advisement. He even let the opposition go first on my motions. It's
got a great shot for an appeal. Judge King looked pretty upset at the mere mention of an appeal. It will allow me
to establish my credibility with the appeals court in case I need to go back there in the future.
                                                           1
                Case 08-10474-mkn          Doc 590-1      Entered 02/24/11 18:55:36         Page 7 of 25

The reality is it's the worst thing for you to think you're in the clear and have nothing to worry about. You are
going to lose this one, whether it's in a courtroom or in the court of public opinion. It's only going to happen
sooner if you keep acting like there's no downside to all this raging on into eternity. It will snowball, and you'll
be the one blamed for giving your clients bad advice. Just some food for thought for you. Good luck with that
restraining order. I hope you get it. We'll make it an exhibit to the ongoing case, and we'll hook you up with
some more legal fees for obscuring the truth.

Have a Nice Day,


Rich
617-209-4325




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Greg Garman

From:	                   Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                   Tuesday, February 15, 2011 3:19 PM
To:	                     Greg Garman
Subject:	                Re: ORDER OF THE COURT


You want me to just come down to your offices and start asking questions?
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               Case 08-10474-mkn          Doc 590-1       Entered 02/24/11 18:55:36         Page 11 of 25

Greg Garman
From:	                     Greg Garman
Sent:	                     Tuesday, February 15, 2011 3:47 PM
To:	                       Rich Bergeron
Cc:	                       Brian Matter
Subject:	                  Re: ORDER OF THE COURT


Mr. Bergeron, you are not welcome at my offices. Please be advised that by way of this message i am directing my
executive director to alert security that you are not to be admitted to the building and law enforcement is to be
summoned if you attempt to gain access. I have no patience for your misguided antics. All future electronic
correspondence will go unanswered.

Sent from my iPhone

On Feb 15, 2011, at 3:16 PM, "Rich Bergeron" <rich.bergeron@gmail.com> wrote:

> You want me to just come down to your offices and start asking questions?




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Greg Garman

From:	                    Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                    Tuesday, February 15, 2011 3:57 PM
To:	                      Greg Garman
Subject:	                 Re: ORDER OF THE COURT


OK, so you're saying now I have to find out where you live to talk to you? Can't be that hard. I found out where
Bill Bullard lives.

I'm not intimidated.

Why is it that all you guys are afraid to answer questions? I think it's classic that ONE GUY can cause this kind
of panic when I've made no threats. I'm just talking about questions. Obviously you all have something to hide.

Rich




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Greg Garman

From:	                     Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                     Tuesday, February 15, 2011 4:04 PM
To:	                       Greg Garman
Subject:	                  Re: ORDER OF THE COURT


5682 S Mojave Rd
Las Vegas, NV 89120-1954




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Greg Garman
From:	                     Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                     Tuesday, February 15, 2011 4:06 PM
To:	                       Greg Garman
Subject:	                  Re: ORDER OF THE COURT


1312 Panini Drive, Henderson, NV

I'll try both.

On Tue, Feb 15, 2011 at 5:03 PM, Rich Bergeron <rich.bergeron@gmail.com> wrote:
5682 S Mojave Rd
Las Vegas, NV 89120-1954
Case 08-10474-mkn   Doc 590-1   Entered 02/24/11 18:55:36   Page 18 of 25




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                Case 08-10474-mkn            Doc 590-1       Entered 02/24/11 18:55:36            Page 19 of 25

Greg Garman

From:	                       Greg Garman
Sent:	                       Tuesday, February 15, 2011 4:09 PM
To:	                         Rich Bergeron
Subject:	                    Re: ORDER OF THE COURT


Mr. Bergeron, security at my residence and the police department have already been alerted to the threat you pose. Be
advised you will be arrested should you attempt to obtain access to my neighborhood.

Sent from my iPhone

On Feb 15, 2011, at 3:54 PM, "Rich Bergeron" <rich.bergeronPgmail.com> wrote:

> OK, so you're saying now I have to find out where you live to talk to you? Can't be that hard. I found out where Bill
Bullard lives.
>
> I'm not intimidated.
>
> Why is it that all you guys are afraid to answer questions? I think it's classic that ONE GUY can cause this kind of panic
when I've made no threats. I'm just talking about questions. Obviously you all have something to hide.
>
> Rich




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Greg Garman

From:	                    Rich Bergeron <rich.bergeron@gmail.com>
Sent:	                    Tuesday, February 15, 2011 4:11 PM
To:	                      Greg Garman
Subject:	                 Re: ORDER OF THE COURT


GREGORY EUGENE GARMAN

I'm on to you.


You want to make my job harder. Fine. I'll return the favor.




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                                                                                       a-	  •	 	




          ORDR
                            `-)	          ORIGINAL )
          COGBURN LAW OFFICES
    2     JAMIE S. COGBURN, ESQ.
          Nevada State Bar No. 008409
    3     170 S. Green Valley Pkwy., Suite 280
          Henderson, Nevada 89012
    4     (702) 384-3616
            Attorneys for Plaintiff                                                   73,
    5
                                                   DISTRICT COURT
    6
                                            CLARK COUNTY, NEVADA
    7
           XYIENCE INCORPORATED, a Nevada
    8      Corporation,
                                                                Case No: A 544781
     9                              Plaintiff,                  Dept. No.: XVI
    10            v.
    11     RICHARD BERGERON, an Individual,
    12                              Defendant.
    13
                               MODIFIED PRELIMINARY INJUNCTION ORDER
    14
                                                     Date of Hearing:
    15                                           Time of Hearing: 9:00 a.m.
    16            THIS MATTER having come on before this court on the 11 th day of October, 2007, on
    17
           Plaintiff's Motion to Modify Preliminary Injunction Order with Plaintiffs appearing by and
    18
           through their counsel of record, Jamie S. Cogburn, Esq., and Defendant, Richard Bergeron
    19
           (hereinafter referred to as "Bergeron") not appearing, but receiving proper notice of said hearing.
    20
    21     The Court having reviewed the papers and pleadings on file herein, and having heard the

    22     argument of counsel and good cause appearing therefore,

    23            IT IS HEREBY ORDERED, that Plaintiff's Motion to Modify Preliminary Injunction is
    24     Granted.

                  IT IS FURTHER ORDERED, that Plaintiffs Modified Preliminary Injunction Order is

           Granted pursuant to NRCP 65 and Sobol v. Capital Mangmt. Consultants, 102 Nev. 444, 726

           P.2d 335 (1986), as Xyience has showed that there is a strong likelihood of success on the merits,

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                   Case 08-10474-mkn Doc 590-1 Ent p red 03/20/08 12 . 13-27 Pig 324 of 25




               1     there is a threat of irreparable harm, there is little to no halm that will result to the Defendant,
              2      and this Court has an interest to protect the public from defamatory statements.
              3
                            IT IS FURTHER ORDERED, that the Defendant, Richard Bergeron, shall remove any
              4
                     and all articles or postings regarding false claims about Xyience from the intemet and Defendant
              5
                     shall be enjoined from communicating any statements or making any representations which in
              6
                     any manner state, advise, represent, assert, allege, suggest, or imply, in any manner which is
              7
               8     intended to, or does evoke an inference or create an impression that Xyience is being

               9     investigated by the SEC.
              10             IT IS FURTHER ORDERED that the Defendant, Richard Bergeron, shall remove any
              11
                     and all articles claiming that Xyience is defrauding investors and/or is conspiring with Dana
              12
LI3
                     White or the Ultimate Fighting Challenge to defraud investors. Richard Bergeron shall be
(21
              13
W         '          enjoined from communicating any statements or making any representations which in any
      3
0         R   14
              15     manner state, advise, represent, assert, allege, suggest, or imply, in any manner which is intended

              16     to, or does evoke an inference or create an impression that Xyience is defrauding investors

              17     and/or conspiring with Dana White or the Ultimate Fighting Championship to defraud investors.
              18
U                            IT IS FURTHER ORDERED that Bergeron's intemet provider, EarthLink, Inc. shall
              19
                     take actions, including but not limited to removing the websites in question from there server, to
              20
                     remove any statements or any representations which in any manner state, advise, represent,
              21
                     assert, allege, suggest, or imply, in any manner which is intended to, or does evoke an inference
              22
              23     or create an impression that Xyience is being investigated by the SEC or Xyience is defrauding

              24     investors. Specifically, the websites in question are www.unlimitedfightnews.com and
              25     wWw.fightnewsunl imited.corn.
              26
              27
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     Case 08-10474-mkn         Doc 590-1       Entered 02/24/11 18:55:36          Page 25 of 25




                IT IS FURTHER ORDERED that Google shall remove Bergeron's postings from

2      Google's search engine, to ensure that any statements or any representations which in any
3
       manner state, advise, represent, assert, allege, suggest, or imply, in any manner which is intended
4
       to, or does evoke an inference or create an impression that Xyience is being investigated by the
 5
       SEC or Xyience is defrauding investors does not appear when someone uses Google's search
6
 7     engine to look up "Xyience." Specifically, the websites in question are

 8     www.unlimitedfightnews.com and www.fightnewsunlimited.com.

 9              IT IS FURTHER ORDERED that if Bergeron changes internet providers, then
10     Bergeron's current internet provider shall take actions to remove any statements or any
11
       representations which in any manner state, advise, represent, assert, allege, suggest, or imply, in
12
       any manner which is intended to, or does evoke an inference or create an impression that
13
       Xyience is being investigated by the SEC or Xyience is defrauding investors.
14
15              IT IS FURTHER ORDERED that Bergeron shall be restrained from contacting

16     Xyience vendors and/or investors in an attempt to interfere with Xyience's business

17     relationships.
18
19                                                                                              say




20                                                   DISTRICT OURT JUDGE                   /0/a/o 7
21     Respectfully submitted by:
22
       COGBURN LAW 0 ES
23
24
       By:
25
             Jamie	    ogburn, Esq.
26           Nevad tate Bar No. 008409
             170 Green Valley Pkwy., Suite 280
27           Hen erson, Nevada 89012
             Attorneys for Plaintiff
28
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