Securities And Exchange Commission v. Boshell et al

MOTION

N.D. Ill.April 29, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION § SECURITIES AND EXCHANGE § COMMISSION, § § Plaintiff, § § Civil Action No. 1:08-cv-2392 vs. § Judge Robert W. Gettleman § ECF EDWARD O. BOSHELL and § DONALD J. POCHOPIEN, § § Defendants. § § § AGREED MOTION TO ENTER AGREED FINAL JUDGMENTS Plaintiff Securities and Exchange Commission files this Agreed Motion to Enter Agreed Final Judgments and would respectfully show the Court as follows: 1. The Commission filed this case on April 28, 2008, alleging that Defendants Edward O. Boshell (“Boshell”) and Donald J. Pochopien (“Pochopien”) violated the federal securities laws by engaging in insider trading in the securities of American Medical Systems Holdings, Inc. (American Medical), a medical laser systems company. The Commission’s Complaint sought against defendants permanent injunctions, the payment of disgorgement plus pre-judgment interest, civil penalties, and officer and director bars. 2. The Commission has reached settlement agreements with both defendants. Both defendants have consented to the entry of a permanent injunction, without admitting or denying the allegations in the Commission’s Complaint. Additionally, Defendant Boshell has consented to the entry of an order requiring him to pay disgorgement of $85,750, plus prejudgment interest AGREED MOTION TO ENTER AGREED JUDGMENT PAGE 1 SEC v. Boshell, et al. Case 1:08-cv-02392 Document 3 Filed 04/29/2008 Page 1 of 3 thereon in the amount of $11,381.75, and a civil penalty of $85,750 for a total of $182,881.73. Defendant Pochopien has consented to the entry of an order requiring him to pay disgorgement of $134,970, plus prejudgment interest thereon in the amount of $17,914.81, and a civil penalty of $134,970 for a total of $287,854.81. 3. Defendants have each executed Consents and a [Proposed] Agreed Judgment. A copy of Boshell’s Consent is attached to this motion as Exhibit “A” and fully incorporated herein. A copy of Pochopien’s Consent is attached to this motion as Exhibit “B” and fully incorporated herein. Defendants signed [Proposed] Final Judgments are attached hereto as Exhibits “C” and “D.” 4. The Commission respectfully moves the Court to enter the [Proposed] Agreed Judgments. Dated: April 29, 2008 Respectfully submitted, /s/Jennifer D. Brandt Jennifer D. Brandt Texas Bar No. 00796242 J. Kevin Edmundson Texas Bar No. 24044020 Securities and Exchange Commission Fort Worth Regional Office 801 Cherry Street, Suite 1900 Fort Worth, Texas 76102 Ph: (817) 978-6442 (jdb) Fax:(817) 978-4927 brandtj@sec.gov Local Counsel: Steven J. Levine Securities and Exchange Commission 175 West Jackson Street, Suite 900 Chicago, IL 60604-2601 (312) 353-7390 AGREED MOTION TO ENTER AGREED JUDGMENT PAGE 2 SEC v. Boshell, et al. Case 1:08-cv-02392 Document 3 Filed 04/29/2008 Page 2 of 3 AGREED MOTION TO ENTER AGREED JUDGMENT PAGE 3 SEC v. Boshell, et al. CERTIFICATE OF SERVICE I hereby certify that on April 29, 2008, I electronically filed the foregoing Agreed Motion to Enter Agreed Judgments with the Clerk of the Court for the Northern District of Illinois, Chicago Division, by using the CM/ECF system which will not send a notice of electronic filing to the parties. I further certify that on April 29, 2008, I served a true and correct copy of the foregoing document by depositing a copy thereof in an authorized Federal Express depository at Fort Worth, Texas with overnight express charges prepaid and addressed to the following parties and persons entitled to notice: Patrick Craine Bracewell & Giulliani 1445 Ross Avenue, Ste. 3800 Dallas, Texas 75202-2711 Telephone: 214-758-1048 Fax: 214-758-8348 Patrick.Craine@bgllp.com Attorney for Defendant Boshell Jacqueline Jacobson Monico, Pavich & Spevack 20 South Clark Street, Ste. 700 Chicago, Illinois 60603 Telephone: 312-782-8500 Fax: 312-759-2000 jjacobson@monicopavich.com Attorney for Defendant Pochopien /s/Jennifer D. Brandt Jennifer D. Brandt CERTIFICATE OF CONFERENCE I certify that counsel for the Commission has conferred with opposing counsel, and the defendants do not oppose the entry of the attached Final Judgments. /s/Jennifer D. Brandt Jennifer D. Brandt Case 1:08-cv-02392 Document 3 Filed 04/29/2008 Page 3 of 3 ( ( CONSENT OF DEFENDANT EDWAR O. BOSHELL 1. Defendant Edward O. Boshell ("Defendant") waives service of a sumons and the complaint in this action, enters a general appearance, and admits the Cour's jurisdiction over Defendant 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 Defendant admits), Defendant hereby consents to the entr of the final Judgment in the form attached hereto (the "Final Judgment") and incorporated by reference herein, which, among other thngs: (a) permanently restrains and enjoins Defendant from violating Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C § 78j(b) and Rule lOb-5 thereunder, 17 C.F.R. §240.10b-5; (b) . orders Defendant to pay disgorgement in the amount of $85,750, plus prejudgment interest thereon in the amount of $11,381.73; and (c) orders Defendant to pay a civil penalty in the amount of $85,750 under Section 21A of the Exchange Act (15 U.S.C. § 78u-l). 3. Defendant agrees that he shall not seek or accept, directly or indirectly, reimbursement or indemnfication from any source, including but not limited to payment made pursuant to any insurance policy, with regard to any civil penalty amounts that Defendant pays pursuant to the Final Judgment, regardless of whether such penalty amounts or any par thereof are added to a distribution fud or otherwise used for the benefit of investors. Defendant fuher 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 Defendant pays pursuant to the Final Judgment, regardless of whether such penalty amounts or any par thereof are added to a Consent of Defendant Edward O. Boshell Case 1:08-cv-02392 Document 3-2 Filed 04/29/2008 Page 1 of 5 ( ( distrbution fud or otherwse used for the benefit of investors. 4. Defendant waives the entr of findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. 5. Defendant waives the right, if any, to a jur trial and to appeal from the entr of the Final"Judgment. 6. Defendant 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, offcer, employee, agent, or representative of the Commission to induce Defendant to enter into this Consent. 7. Defendant agrees that this Consent shall be incorporated into the Final Judgment with the same force and effect as if fully set forth therein. 8. Defendant wil 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. Defendant waives service of the Final Judgment and agrees that entry of the Final Judgment by the Cour and filing with the Clerk of the Cour wil constitute notice to Defendant of its terms and conditions. Defendant fuher agrees to provide counsel for the Commission, within thirt days after the Final Judgment is fied with the Clerk of the Cour, with an affidavit or declaration stating that Defendant 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 asserted against Defendant in this civil proceeding. Defendant 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 liabilty that may have arisen or Consent of Defendant Edward O. Boshell 2 Case 1:08-cv-02392 Document 3-2 Filed 04/29/2008 Page 2 of 5 ( may arise from the facts underlying this action or immunty from any such criminal liabilty. Defendant waives any claim of Double Jeopardy based upon the settlement of this proceeding, including the imposition of any remedy or civil penalty herein. Defendant fuher acknowledges that the Cour's entr of a permanent injunction may have collateral consequences under federal or state law and the rules and regulations of self-regulatory organzations, licensing boards, and other regulatory organzations. Such collateral consequences include, but are not limited to, a statutory disqualification with respect to membership or paricipation in, or association with a member of, a self-regulatory organization. This statutory disqualification has consequences that are separate from any sanction imposed in an administrative proceeding. In addition, in any disciplinar proceeding before the Commission based on the entry of the injunction in this action, Defendant understands that he shall not be permitted to contest the factual allegations of the complaint in this action. 11. Defendant 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, Defendant agrees: (i) not to talce 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 fiing of this Consent, Defendant hereby withdraws any papers fied in this action to the extent that they deny any allegation in the complaint. If Defendant breaches this agreement, the Commission may petition the Cour to vacate the Final Judgment and restore this action to its active docket. Nothing in this paragraph affects Defendant's: (i) testimonial obligations; or (ii) right to talce Consent of Defendant Edward O. Boshell 3 Case 1:08-cv-02392 Document 3-2 Filed 04/29/2008 Page 3 of 5 ie~al or factu positions in litigaon or other legal proceedigs in whích the CommBÎoD is not a par. 12. . Defendant hereby waives any righ imder the Equal Aocess to Justce Act, the Small Bllm.ess Regiiitory Enorcent Faiss Act of 19~6, or any other provision of law to seek from the United St, or any agency. or any offcial of1b Unied Staes acting in his or her offcial capacit, diecty or indiecly, teibutement of attrney's feei Oì other fees, exemiei, or costs exended by Defedant to defend aganst this acton. For these puroses, Dei6ndant agees tht Defendant is not the. prevailing par in th acton since the paries have reaohed a good faith setlement. 13. Defendant agres that the Connssion may present tha Final Judgment to the Cour for signe and entr without fuer notice. 14. Defendat ags tht ths Cour shall i:eta jurisdicton over this matt for thC3 puioiie of enorcing the tens of the Fin Judgment Dated: . ~o~ Edwar O. Boshell On fG'o. ~\ r 2008, tdWtJ o. ~\- \ , a person known to nie, personaly appeared befre me and aoknowledged executg the foregoingComient, f'e ß 2.\ 1.~ COURTNEY B. POTEETE NOTARY PUBUC STATE OF~S COMMISSION EXPIRES: APRIL 11, 2010 . Ca i.N 't B. Qr q r. Nota :Plic Commsion exIr; .Approved a~ to form: Coiisen1 ofDøfeni1nntEiJerd O. ßiishen 4 Case 1:08-cv-02392 Document 3-2 Filed 04/29/2008 Page 4 of 5 ( ( 'e./....A/ '' - Pfuick Craine Bracewell & Giullan 1445 Ross Avenue, Ste. 3800 Dallas, Texas 75202-2711 Telephone: 214-758-1048 Fax: 214-758-8348 Attorney for Defendant Consent of Defendant Edward O. Boshell 5 Case 1:08-cv-02392 Document 3-2 Filed 04/29/2008 Page 5 of 5 CONSENT OF DEFENDANT DONALD J. POCHOPIEN 1. Defendant Donald J. Pochopien ("Defendant") waives service of a smons and the complaint in this action, enters a general appearance, and admits the Court's jurisdiction over Defendant 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 Defendant admits), Defendant 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: (a) permanently restrains and enjoins Defendant from violating Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C § 78j(b) and Rule lOb-5 thereunder, 17 C.F.R. §240.10b-5; (b) orders Defendant to pay disgorgement in the amount of $134,970, plus prejudgment interest thereon in the amount of $17,914.81; and (c) orders Defendant to pay a civil penalty in the amount of $134,970 under Section 21A of the Exchange Act (15 U.S.C. § 78u-l). 3. Defendant 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 Defendant pays pursuant to the Final Judgment, regardless of whether such penalty amounts or any par thereof are added to a distribution fud or otherwise used for the benefit of investors. Defendant 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 Defendant pays pursuant to the Final Judgment, regardless of whether such penalty _amounts or any part thereof are added to a Consent of Defendant Donald J. Pochopien Case 1:08-cv-02392 Document 3-3 Filed 04/29/2008 Page 1 of 5 distribution fund or otherwise used for the benefit of investors. 4. Defendant waives the entry of findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. 5. Defendant waives the right, if any, to a jur trial and to appeal from the entry of the Final Judgment. 6. Defendant 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 Defendant to enter into this Consent. 7. Defendant agrees that this Consent shall be incorporated into the Final Judgment with the same force and effect as if fully set forth therein. 8. Defendant wil 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. Defendant waives service of the Final Judgment and agrees that entry of the Final Judgment by the Court and fiing with the Clerk of the Court will constitute notice to Defendant of its terms and conditions. Defendant further agrees to provide counsel for the Commission, within thirt days after the Final Judgment is fied with the Clerk of the Court, with an affdavit or declaration stating that Defendant 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 asserted against Defendant in this civil proceeding. Defendant acknowledges that no promise or representation has been made by the Commission or any member, offcer, employee, agent, or representative of the Commission with regard to any criminal liability that may have arisen or Consent of Defendant Donald J. Pochopien 2 Case 1:08-cv-02392 Document 3-3 Filed 04/29/2008 Page 2 of 5 may arise from the facts underlying this action or immunity from any such criminal liability. Defendant waives any claim of Double Jeopardy based upon the settlement of this proceeding, including the imposition of any remedy or civil penalty herein. Defendant further acknowledges that the Cour's entry of a permanent injunction may have collateral consequences under federal or state law and the rules and regulations of self-regulatory organizations, licensing boards, and other regulatory organizations. Such collateral consequences include, but are not limited to, a statutory disqualification with respect to membership or paricipation in, or association with a member of, a self-regulatory organization. This statutory disqualification has consequences that are separate from any sanction imposed in an administrative proceeding. In addition, in any disciplinar proceeding before the Commission based on the entry of the injunction in this action, Defendant understands that he shall not be permitted to contest the factual allegations of the complaint in this action. i 1. Defendant 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, Defendant 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 fiing of this Consent, Defendant hereby withdraws any papers fied in this action to the extent that they deny any allegation in the complaint. If Defendant 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 Defendant's: (i) testimonial obligations; or (ii) right to take Consent of Defendant Donald J. Pochopien 3 Case 1:08-cv-02392 Document 3-3 Filed 04/29/2008 Page 3 of 5 , . legal or factual positions in litigation or other legal proceedings in which the Commission is not a pary. 12. Defendant 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 offcial 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 Defendant to defend against this action. For these purposes, Defendant agrees that Defendant is not the prevailing pary in this action since the paries have reached a good faith settlement. 13. Defendant agrees that the Commission may present the Final Judgment to the Cour for signature and entry without further notice. 14. Defendant agrees that this Cour shall retain jurisdiction over this matter for the purose of enforcing the terms of the Final Judgment. O-~~~ Donald J. Pochopien .)1 ,2008, $~~.~personknowntome, efore me and acknowledge~xecuting e foregoing Consent. Dated: Oll"'/ )I?'r i (le -. ' -- C-p'-' Notar.(rPublic Commission expires: "OFFICIAL SEAL" Jessica Agi Notaiy Public, State of Illnois My Commission Exp. 08/05/2010 Approved as to form: Consent of Defendant Donald J. Pochopien 4 Case 1:08-cv-02392 Document 3-3 Filed 04/29/2008 Page 4 of 5 , ' acqueline acobson Monico, Pavich & Spevack 20 South Clark Street, Ste. 700 Chicago, Ilinois 60603 Telephone: 312-782-8500 Fax: 312-759-2000 Attorney for Defendant Consent of Defendant Donald J. Pochopien 5 Case 1:08-cv-02392 Document 3-3 Filed 04/29/2008 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION § SECURITIES AND EXCHANGE § COMMISSION, § § Plaintiff, § § Civil Action No. 1:08-cv-2392 vs. § § EDWARD O. BOSHELL and § DONALD J. POCHOPIEN, § § Defendants. § § § AGREED FINAL JUDGMENT AS TO DEFENDANT EDWARD O. BOSHELL The Securities and Exchange Commission having filed a Complaint and Defendant Edward O. Boshell (“Defendant”) having entered a general appearance; consented to the Court’s jurisdiction over Defendant and the subject matter of this action; consented to entry of this Final Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right to appeal from this Final Judgment. I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant's agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated Case 1:08-cv-02392 Document 3-4 Filed 04/29/2008 Page 1 of 4 SEC v. Boshell, et al. Page 2 FINAL JUDGMENT AS TO DEFENDANT BOSHELL thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. II. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $85,750, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $11,381.73 and a civil penalty in the amount of $85,750 pursuant to Section 21A of the Exchange Act [15 U.S.C. § 78u-1]. Defendant shall satisfy this obligation by paying $182,881.73 within ten (10) business days after entry of this Final Judgment by certified check, bank cashier's check, or United States postal money order payable to the Securities and Exchange Commission. The payment shall be delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Mail Stop 0-3, Alexandria, Virginia 22312, and shall be accompanied by a letter identifying Edward O. Boshell as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Final Judgment. Defendant shall pay post-judgment interest on any delinquent Case 1:08-cv-02392 Document 3-4 Filed 04/29/2008 Page 2 of 4 SEC v. Boshell, et al. Page 3 FINAL JUDGMENT AS TO DEFENDANT BOSHELL amounts pursuant to 28 USC § 1961. The Commission shall remit the funds paid pursuant to this paragraph to the United States Treasury. IV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall comply with all of the undertakings and agreements set forth therein. V. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. Dated: ______________, 2008 ____________________________________ UNITED STATES DISTRICT JUDGE Case 1:08-cv-02392 Document 3-4 Filed 04/29/2008 Page 3 of 4 SEC v. Boshell, et al. Page 4 FINAL JUDGMENT AS TO DEFENDANT BOSHELL Approved as to Form and Substance: s/ Patrick Craine Patrick Craine Bracewell & Giulliani 1445 Ross Avenue, Ste. 3800 Dallas, Texas 75202-2711 Telephone: 214-758-1048 Fax: 214-758-8348 Attorney for Defendant Boshell s/ Jennifer D. Brandt Jennifer D. Brandt Texas Bar No. 00796242 U.S. SECURITIES AND EXCHANGE COMMISSION Fort Worth Regional Office 801 Cherry Street, Suite 1900 Fort Worth, TX 76102-6819 Telephone: (817) 978-6442 Facsimile: (817) 978-2700 Attorney for Plaintiff Case 1:08-cv-02392 Document 3-4 Filed 04/29/2008 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION § SECURITIES AND EXCHANGE § COMMISSION, § § Plaintiff, § § Civil Action No. 1:08-cv-2392 vs. § § EDWARD O. BOSHELL and § DONALD J. POCHOPIEN, § § Defendants. § § § AGREED FINAL JUDGMENT AS TO DEFENDANT DONALD J. POCHOPIEN The Securities and Exchange Commission having filed a Complaint and Defendant Donald J. Pochopien (“Defendant”) having entered a general appearance; consented to the Court’s jurisdiction over Defendant and the subject matter of this action; consented to entry of this Final Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right to appeal from this Final Judgment. I. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant and Defendant's agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise are permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, Case 1:08-cv-02392 Document 3-5 Filed 04/29/2008 Page 1 of 5 SEC v. Boshell, et al. Page 2 FINAL JUDGMENT AS TO DEFENDANT POCHOPIEN or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. II. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $134,970, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $17,914.81, and a civil penalty in the amount of $134,970 pursuant to Section 21A of the Exchange Act [15 U.S.C. § 78u- 1]. Defendant shall satisfy this obligation by paying $287,854.81 pursuant to the terms of the payment schedule set forth in paragraph III below after entry of this Final Judgment by certified check, bank cashier's check, or United States postal money order payable to the Securities and Exchange Commission. The payment shall be delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Mail Stop 0-3, Alexandria, Virginia 22312, and shall be accompanied by a letter identifying Donald J. Pochopien as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Final Judgment. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961. Case 1:08-cv-02392 Document 3-5 Filed 04/29/2008 Page 2 of 5 SEC v. Boshell, et al. Page 3 FINAL JUDGMENT AS TO DEFENDANT POCHOPIEN The Commission shall remit the funds paid pursuant to this paragraph to the United States Treasury. III. Donald J. Pochopien shall pay $287,854.81 in four installments according to the following schedule: (1) $71,963.71, within 10 days of entry of this Final Judgment plus post-judgment interest pursuant to 28 U.S.C. § 1961; (2) $71,963.71, within 90 days of entry of this Final Judgment plus post-judgment interest pursuant to 28 U.S.C. § 1961; (3) $71,963.71, 180 days of entry of this Final Judgment plus post-judgment interest pursuant to 28 U.S.C. § 1961; and (4) $71,963.71, within 270 days of entry of this Final Judgment plus post-judgment interest pursuant to 28 U.S.C. § 1961 If Donald J. Pochopien fails to make any payment by the date agreed and/or in the amount agreed according to the schedule set forth above, all outstanding payments under this Final Judgment, including post-judgment interest, minus any payments made, shall become due and payable immediately without further application to the Court. IV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is incorporated herein with the same force and effect as if fully set forth herein, and that Defendant shall comply with all of the undertakings and agreements set forth therein. V. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. Dated: ______________, 2008 Case 1:08-cv-02392 Document 3-5 Filed 04/29/2008 Page 3 of 5 SEC v. Boshell, et al. Page 4 FINAL JUDGMENT AS TO DEFENDANT POCHOPIEN ____________________________________ UNITED STATES DISTRICT JUDGE Case 1:08-cv-02392 Document 3-5 Filed 04/29/2008 Page 4 of 5 SEC v. Boshell, et al. Page 5 FINAL JUDGMENT AS TO DEFENDANT POCHOPIEN Approved as to Form and Substance: s/ Jacqueline Jacobson Jacqueline Jacobson Monico, Pavich & Spevack 20 South Clark Street, Ste. 700 Chicago, Illinois 60603 Telephone: 312-782-8500 Fax: 312-759-2000 Attorney for Defendant Pochopien Jennifer D. Brandt Jennifer D. Brandt Texas Bar No. 00796242 U.S. SECURITIES AND EXCHANGE COMMISSION Fort Worth Regional Office 801 Cherry Street Suite 1900 Fort Worth, TX 76102-6819 Telephone: (817) 978-6442 Facsimile: (817) 978-2700 Attorney for Plaintiff Case 1:08-cv-02392 Document 3-5 Filed 04/29/2008 Page 5 of 5