Free Motion for Entry of Judgment under Rule 54(b) - District Court of Colorado - Colorado

Case 1:04-cv-00626-REB-CBS

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Filed 01/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0626-REB-CBS SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. MICHAEL B. JOHNSON, et al. Defendants. ________________________________________________________________ CONSENT OF DEFENDANT MICHAEL B. JOHNSON ________________________________________________________________ 1. Defendant Michael B. Johnson acknowledges having been served with the

complaint in this action, enters a general appearance, and admits the Court's jurisdiction over him and over the subject matter of this action. 2. Without admitting or denying the allegations of the complaint (except as to

personal and subject matter jurisdiction, which Johnson admits), Johnson hereby consents to the entry of the final Judgment in the form attached hereto (the "Final Judgment") and incorporated by reference herein, which, among other things, orders Johnson to pay a civil penalty in the amount of $35,000 pursuant to Section 21(d)(3) of the Securities Exchange Act of 1934 [15 U.S.C. § 78u(d)(3)]. 3. Johnson agrees that he shall not seek or accept, directly or indirectly,

reimbursement or indemnification from any source, including but not limited to payment made pursuant to any insurance policy, with regard to any civil penalty amounts that Johnson pays pursuant to the Final Judgment, regardless of whether such penalty amounts or any part thereof are added to a distribution fund or otherwise used for the

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benefit of investors. Johnson further agrees that he shall not claim, assert, or apply for a tax deduction or tax credit with regard to any federal, state, or local tax for any penalty amounts that Johnson pays pursuant to the Final Judgment, regardless of whether such penalty amounts or any part thereof are added to a distribution fund or otherwise used for the benefit of investors. 4. Johnson waives the entry of findings of fact and conclusions of law

pursuant to Rule 52 of the Federal Rules of Civil Procedure. 5. Johnson waives the right, if any, to a jury trial and to appeal from the entry

of the Final Judgment. 6. Johnson enters into this Consent voluntarily and represents that no

threats, offers, promises, or inducements of any kind have been made by the Commission or any member, officer, employee, agent, or representative of the Commission to induce him to enter into this Consent. 7. Johnson agrees that this Consent shall be incorporated into the Final

Judgment with the same force and effect as if fully set forth therein. 8. Johnson will not oppose the enforcement of the Final Judgment on the

ground, if any exists, that it fails to comply with Rule 65(d) of the Federal Rules of Civil Procedure, and hereby waives any objection based thereon. 9. Johnson waives service of the Final Judgment and agrees that entry of the

Final Judgment by the Court and filing with the Clerk of the Court will constitute notice to Defendant of its terms and conditions. Johnson further agrees to provide counsel for the Commission, within thirty days after the Final Judgment is filed with the Clerk of the

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Court, with an affidavit or declaration stating that he has received and read a copy of the Final Judgment. 10. Consistent with 17 C.F.R. 202.5(f), this Consent resolves only the claims Johnson acknowledges that no

asserted against Johnson in this civil proceeding.

promise or representation has been made by the Commission or any member, officer, employee, agent, or representative of the Commission with regard to any criminal liability that may have arisen or may arise from the facts underlying this action or immunity from any such criminal liability. Johnson waives any claim of Double Jeopardy based upon the settlement of this proceeding, including the imposition of any remedy or civil penalty herein. 11. Johnson understands and agrees to comply with the Commission's policy

"not to permit a defendant or respondent to consent to a judgment or order that imposes a sanction while denying the allegation in the complaint or order for proceedings." 17 C.F.R. § 202.5. In compliance with this policy, Johnson agrees: (i) not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis; and (ii) that upon the filing of this Consent, Johnson hereby withdraws any papers filed in this action to the extent that they deny any allegation in the complaint. If Johnson breaches this agreement, the Commission may petition the Court to vacate the Final Judgment and restore this action to its active docket. Nothing in this paragraph affects Johnson's: (i) testimonial obligations; or (ii) right to take legal or factual positions in litigation or other legal proceedings in which the Commission is not a

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party. 12. Johnson hereby waives any rights under the Equal Access to Justice Act,

the Small Business Regulatory Enforcement Fairness Act of 1996, or any other provision of law to seek from the United States, or any agency, or any official of the United States acting in his or her official capacity, directly or indirectly, reimbursement of attorney's fees or other fees, expenses, or costs expended by Johnson to defend against this action. For these purposes, Johnson agrees that Johnson is not the

prevailing party in this action since the parties have reached a good faith settlement. 13. Johnson agrees that the Commission may present the Final Judgment to

the Court for signature and entry without further notice. 14. Johnson agrees that this Court shall retain jurisdiction over this matter for

the purpose of enforcing the terms of the Final Judgment.

Dated: May 27, 2005

/s/ Michael B. Johnson___________________ Michael B. Johnson

On May 27, 2005, Michael B. Johnson, a person known to me, personally appeared before me and acknowledged executing the foregoing Consent.

/s/ Elizabeth J. Greenberg________________ Notary Public Commission expires: June 2, 2006

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Approved as to form:

/s/ Russell Bean_____________________ Russell Bean Attorney for Defendants Krys Boyle, P.C. 600-17th Street, Suite 2700 South Tower Denver, Colorado 80202 303-893-2300 (general) 303-893-2882 (facsimile)

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