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Friday, August 27, 2010

The Law of Excluded Middle

Subject: Expotera, LLC v., Inc.
From: Sharon Piseski
Date: Thu, July 19, 2007 12:27 pm
Cc: Pat Shriver

Brad and Tony:

On behalf of Pat Shriver, please find attached correspondence faxed and mailed to Ronald Weikers today regarding the above-referenced matter.


Sharon Piseski
Legal Assistant

Fafinski Mark & Johnson, P.A.
775 Prairie Center Drive, Suite 400
Eden Prairie, MN 55344
(952) 995-9500 (Main)
(952) 995-9577 (Fax)

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Weikers, Ronald - Letter 7-19-07 - Expotera - 289842_1.PDF
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Fafinski Mark & Johnson, P.A.
Attorneys At Law
Flagship Corporate Center
775 Prairie Center Drive, Suite 400
Eden Prairie, MN 55344
Telephone: 952-995-9500
Facsimile: 952-995-9577

July 19, 2007

VIA U.S. MAIL AND FACSIMILE-(603) 663-1000

Ronald N. Weikers
Weikers & Company
41 North Acres Road
Manchester, NH 03104

Re: Expotera, LLC v., Inc.
FMJ File No.: 61068-5

Dear Mr. Weikers:

I have received and am responding to your letter dated July 16, 2007.

I understand your request to preserve all documents relating to the relationship between our clients and have directed my clients to so preserve all of these documents.

However, the great majority of these documents including substancially all of the communication between Tony Whitcomb, Expotera's President, and Implex are contained in Mr. Whitcomb's, email account with Implex, to which Implex has shut off all access.

This email account includes an estimated 4,000 emails, most of which relate to Expotera's operations and a number of which are privileged attorney/client communications.

Since Mr. Whitcomb has never granted Implex the right to access or deny access to the account and had a reasonable expectation of privacy in his email account, we demand Implex either restore Mr. Whitcomb's access to this account or transfer all of the emails to Mr. Whitcomb in electronic format which may be accessed using commercially-available email clients (i.e. Micosoft Outlook).

In addition, given that the information in the account is personal to Mr. Whitcomb and Expotera and includes privileged attorney/client communications, we expect that Implex will not retain copies of Mr. Whitcomb's emails nor review those emails prior to turning them over to Mr. Whitcomb.

Lastly, you should be aware Expotera needs access to this email account to free up approximately $165,000 in credit card revenues derived from subscriptions since the website's launch.

Any delay in restoring access to this account could cause Expotera irreparable harm, as Expotera requires these funds to continue to operate it's business.

Given that Expotera has not received invoices for the services described in your letter (except possibly June and July 2007 colocation fees) and that Expotera has not yet terminated any agreements or relationships with Implex, I will reserve comment on your clients claim for any fees.

However, we request that your client provide Expotera with copies of all invoices relating to the services in question, as well as all supporting documents associated with such invoices.

In addition we request that Implex provide Expotera with any evidence of Expotera's pre-approval of the out-of-scope website development claimed to have been done by Implex.

Ronald N. Weikers
July 19, 2007
Page 2

Regarding the numerous contacts between Expotera's subscribers and Implex, I have two comments.

First, when Implex made Mr. Whitcomb's email account inaccessible, subscribers to the services offered through were unable to obtain requested technical support because support emails were directed (and may still be directed) to Mr. Whitcomb's email account, a fact of which Implex is undoubtedly aware.

Because these users were unable to contact Mr. Whitcomb directly and because Expotera was unable to directly remedy these technical issues, users were directed to contact Implex directly.

Secondly, I understand that Brad Reddick of Expotera and Steve Pampuch of Implex discussed this issue last week (prior to the date of your letter), and Mr. Reddick diligently contacted members and investors and passed on Implex' request that it not be contacted direclty.

I understand in the last twenty-four hours that either the website has gone down, that certain functionality has been temporarily suspended, or both. It appears that Implex is making changes to the website.

In addition, Expotera has received emails between Implex and Wildfire indicating that Implex may be instructing Wildfire to perform additional programming services, at additional expense, without Expotera's prior consent.

Given the current relationship between our clients and the possibility that our clients will disagree on whatever fees are due, we request that Implex cease doing any work on the website or contacting any Expotera vendors except as necessary to maintain the availability of the website to users.

I'm sure that we will be in touch shortly to discuss the relationship between our clients.

Very truly yours,

Ernest P. Shriver

cc: Tony Whitcomb
cc: Brad Reddick

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