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

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

Document 28-2

Filed 01/17/2006

Page 1 of 4

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 & CO., et al. Defendants. ________________________________________________________________ CONSENT OF DEFENDANT MICHAEL JOHNSON & CO. ________________________________________________________________ 1. Defendant Michael Johnson & Co. acknowledges having been served with

the complaint in this action, enters a general appearance, and admits the Court's jurisdiction over it 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 & Co. admits), Johnson & Co. hereby consents to the entry of the final Judgment in the form attached hereto (the "Final Judgment") and incorporated by reference herein. 3. Johnson & Co. waives the entry of findings of fact and conclusions of law

pursuant to Rule 52 of the Federal Rules of Civil Procedure. 4. Johnson & Co. waives the right, if any, to a jury trial and to appeal from

the entry of the Final Judgment. 5. Johnson & Co. 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

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

Document 28-2

Filed 01/17/2006

Page 2 of 4

Commission to induce Johnson & Co. to enter into this Consent. 6. Johnson & Co. agrees that this Consent shall be incorporated into the

Final Judgment with the same force and effect as if fully set forth therein. 7. Johnson & Co. 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. 8. Johnson & Co. 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 & Co. further agrees to

provide counsel for the Commission, within thirty days after the Final Judgment is filed with the Clerk of the Court, with an affidavit or declaration stating that Defendant has received and read a copy of the Final Judgment. 9. Consistent with 17 C.F.R. 202.5(f), this Consent resolves only the claims

asserted against Johnson & Co. in this civil proceeding. Johnson & Co. acknowledges that no 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 & Co. waives any claim of Double Jeopardy based upon the settlement of this proceeding, including the imposition of any remedy or civil penalty herein. 10. Johnson & Co. hereby waives any rights under the Equal Access to

Justice Act, the Small Business Regulatory Enforcement Fairness Act of 1996, or any

2

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

Document 28-2

Filed 01/17/2006

Page 3 of 4

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 & Co. to defend against this action. For these purposes, Johnson & Co.

agrees that Johnson & Co. is not the prevailing party in this action since the parties have reached a good faith settlement. 11. Johnson & Co. agrees that the Commission may present the Final

Judgment to the Court for signature and entry without further notice. 12. Johnson & Co. agrees that this Court shall retain jurisdiction over this

matter for the purpose of enforcing the terms of the Final Judgment. Michael Johnson & Co. By: /s/ Michael B. Johnson_______ Michael B. Johnson_____________ [Name of person signing for entity] Manager_____________________ [Title] 9125 E. Kenyon Ave.____________ Denver, COLO. 80277___________ [Address]

On May 27, 2005, Michael B. Johnson, a person known to me, personally appeared before me and acknowledged executing the foregoing Consent with full authority to do so on behalf of Michael Johnson & Co. as its Manager.

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

3

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

Document 28-2

Filed 01/17/2006

Page 4 of 4

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)

4