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HomeMy WebLinkAboutRES 90-008 96; RESOLUTION WHEREAS, the City of Beaumont has been Plaintiff in various litigations associated with the failure of ESM Government Securities; and WHEREAS, the City has reached a proposed settlement in the remaining litigation associated with the ESM matter and desires to settle such matters; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the actions of the City Manager and the City Attorney taken prior to the date of this resolution in furtherance of the settlement of the following matters are hereby ratified and the City Manager and the City Attorney are hereby authorized to execute all instruments and take all other actions necessary to settle the following pending legal actions: City of Beaumont, Texas vs. Touche Ross & Company William H. Shireman Jr and its other constituent partners, the same being Case No. E-122,206 in the 172nd Judicial District Court, Jefferson County, Texas; City of Beaumont, Texas vs. Ronnie R. Ewton and Jerilyn Ewton, the same being Case No. 87-6185-CIV-Gonzalez in the United States District Court for the Southern District of Florida, Fort Lauderdale Division; and Cily of Beaumont, Texas: Clark County Nevada and City of Harrisburg Pennsylvania vs Marvin L Warner, Case No. 87-6156-CIV-Paine. The cases shall be compromised and settled in accordance with the attached settlement agreements and releases marked as Exhibits "A," "B" and "C" hereto for a total consideration of $5,579,500.00. In connection with the settlement with Touche Ross & Co., the 172nd Judicial District Court of Jefferson County, i Texas, has entered a confidentiality order prohibiting disclosure of the exact amount of the settlement payment by Touche Ross & Co. A copy of such order is hereby attached as Exhibit "D." PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of January, 1990. - Mayor - - 2 - i NO. E-122,206 THE CITY OF BEAUMONT, TEXAS § IN THE DISTRICT COURT OF vs. § § JEFFERSON COUNTY, TEXAS TOUCHE ROSS & CO., WILLIAM H. § SHIREMAN, JR., AND ITS OTHER § CONSTITUENT PARTNERS § 172ND JUDICIAL DISTRICT CONFIDENTIAL SE .FMENT ACREMENT WHEREAS, the City of Beaumont("City")has brought suit against Touche Ross & Co., William H. Shireman, Jr. and its other constituent partners (collectively referred to as "Touche Ross") in Cause No. E-122,206 in the 172nd Judicial District Court of Jefferson County, Texas (the "Suit"), and WHEREAS, City and Touche Ross have agreed to compromise and settle the claims presented in the Suit, on the terms set forth herein and thus reduce their agreement in such regard to writing, NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: THAT City and Touche Ross hereby agree as follows: i. The terms of the Agreement are strictly confidential. City and Touche Ross agree to the entry of a judgment in the Suit in the form of Exhibit A hereto(the "Judgment")and to abide by the terms of the Judgment. 2. The City agrees to execute and deliver to Touche Ross a release in the form of Exhibit B hereto (the "Release"). The actual Release will have all exhibits referred to therein attached. L0515/0178/01BPO2 EXHIBIT "A" 3. Touche Ross agrees to pay. the City in cash (the "Consideration"). 4. The Judgment will be presented to the Court for entry on or before October 31, 1989. 5. The fully executed Release and the Consideration will be delivered in escrow to Baker&Botts to be held by them in escrow until the fact that the Suit has been settled has been publicly announced by the City, an event expected to occur on November 21, 1989. 6. Baker&Botts is directed by the City to deposit the Consideration at Texas Commerce Bank - Houston, N.A. (the "Bank") and to instruct the Bank to invest the Consideration by purchasing United States Treasury bills with a maturity not exceeding 91 days. 7. When the settlement is announced,Baker&Botts will immediately deliver the Release to Touche Ross and direct Texas Commerce Bank - Houston, N.A. to transfer such United States Treasury bills to the account of the City of Beaumont, which direction shall completely discharge its delivery obligations hereunder. 8. If such announcement has not been made before December 31, 1989,Baker & Botts will make such deliveries and/or give such directions to the Bank on January 2, 1990. 9. All interest earned on the Consideration will be the property of the City. Any fees imposed by the Bank in connection with such investment of the Consideration will be for the sole account of the City. 10. It is specifically understood and agreed that neither Baker & Botts nor Touche Ross shall, under any circunnstances, be responsil�le and/or liable for any loss, default or other consequence of the investment of the Consideration in accordance with the foregoing. L0515/0178/01BP02 -2- EXECUTED this the 3 S�day of October, 1989. CITY OF BEAUMONT By: /,RIO A /J Its Manager TOUCHE ROSS & CO. ON BEHALF OF ITSELF AND ALL ITS CONSTITUENT PARTNERS A General Partner Baker& Botts joins in the execution hereof solely for the purpose of agreeing to the terms of the escrow of the Release and the Consideration as above provided. BAKER & BOTTS B�L JPameeser d ne , UO515ro178ro1BPM -3- NO. E-122,206 THE CITY OF BEAUMONT, TEXAS § IN THE DISTRICT COURT OF vs. JEFFERSON COUNTY, TEXAS TOUCHE ROSS & CO., W IIAM H. § SHIREMAN, JR., AND ITS OTHER $ CONSTITUENT PARTNERS § 172ND JUDICIAL DISTRICT AGREED JA IDGMENT Be it remembered that on the day of October, 1989 came the parties to this suit acting by their respective counsel of record and announced to the Court that they had reached a compromise and settlement of all the issues involved in this case on the terms hereinafter set forth, and it appearing to the court that a Judgment should be entered finally disposing of this matter, it is ORDERED and DECREED that 1. The amount of consideration paid by the Defendants in respect of this compromise and settlement is to be kept confidential by all parties hereto. Therefore all parties to this proceeding are hereby enjoined from revealing the amount of consideration paid by the Defendants to any person who does not have a genuine need to have such information in order to carry out the compromise and settlement or to invest the funds on behalf of the City. This injunction will be binding upon the parties and all of their respective officers, directors, managers, councilmen, employees, attorneys and consultants. Any breach of this injunction will be punishable as a contempt of this Court and may result in fines, other penalties or even imprisonment. L0515/0178/01BOOl -1- E �AALA A i 2. The following disclosures of the amount of consideration paid by the Defendants are expressly permitted but the injunction above is expressly made applicable to all persons to whom such information is communicated and the person(s)revealing such information to such a person is enjoined to advise each such person of this injuimtion, its terms and effects: a. The actual attorneys, paralegals and secretaries in the firms who represent the respective parties ber+eto who are involved in preparing the documents implementing the compromise and settlement; b. The Mayor, councilmen, City Manager, Finance Director and City Attorney of the City of Beaumont and their respective assistants and secretaries Who are involved in implementing the compromise and settlement and investing the proceeds f; C. The former Mayor, former councilmen and former City Managers and Finance Directors of the City of Beaumont who were involved in the prosecution of this litigation and the consulting experts employed by the City's attorneys in this litigation; d. The partners of the Defendants and such other persons associated with Defendants as may be determined by any such partner to need such information; e. The City may announce the total amount that it has recovered in all of its claims and settlements with all parties in all of its claims and litigation arising out of its loss in the E.S.M. Government Securities, Inc. failure or an approximation thereof, which amount or approximation may include the amount of consideration paid by the Defendants herein. 3. This suit is hereby dismissed with prejudice and all costs of count are adjudged against the party incurring same, provided however that this Court expressly retains L 15/0179/01DWI -2- jurisdiction over this case to the limited extent necessary to enforce the injunctive Provisions of this Judgment for two years after the date this Judgment is entered. Thomas A. Thomas, Judge Presiding APPROVED AS TO FORM & SUBSTANCE: J. Hoke Peacock II Orgain, Bell & Tucker 470 Orleans Beaumont, Texas 77701 ATTORNEYS FOR PLAINTIFF, CITY OF BEAUMONT James Edward Maloney Baker & Botts 3000 One Shell Plaza 910 Louisiana Houston, Texas 77002 ATTORNEYS FOR DEFENDANTS, TOUCHE ROSS & CO. AND ITS CONSTITUENT PARTNERS, INCLUDING WILLIAM H. SHIREMAN, JR. L0515/017MB001 -3- FULL & FINAL RELEASE AND SPI I I FMFNT AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This Full & Final Release and Settlement Agreement (the "Agreement") is made on the date below entered into by the following parties: The City of Beaumont, Texas, a Texas Municipal Corporation, hereinafter referred to as "Plaintiff"; Touche Ross & Co., William H. Shireman, Jr., and all other constituent partners of Touche Ross & Co., both individually and as partners in Touche Ross & Co., hereinafter referred to as "Defendants"; WITNESSETH: WHEREAS, on or about July 2, 1984, in response to a request from Plaintiff, Defendants made a proposal to Plaintiff to perform certain public accounting services for Plaintiff by proposing to audit Plaintiff's comprehensive annual financial report and Plaintiff's federal and state grants-in-aid programs, a copy of which is attached hereto as Exhibit A to this Full & Final Release and Settlement Agreement, which proposal was accepted by Plaintiff and Defendants and Plaintiff entered into an agreement whereby Defendants became Plaintiff's auditors and agreed to and did perform certain professional certified public accounting services for Plaintiff pursuant to the terms of said proposal and agreement, including an audit of Plaintiff's financial statements as of September 30, 1984, and for the fiscal year then ended, a copy of which agreement is attached hereto as Exhibit B; and WHEREAS, in connection with said proposal, agreement, and audit Plaintiff has asserted certain claims and causes of action against Defendants,all of which are set forth in more Lo515/0179/olAF05 -1- E.1, kib� detail in Plaintiff's Original Petition in that matter styled The City of Beaumont. TeYns vs. Touche Ross & Co.. William H. S iM= Jr. and its Other Constituent Partners, No. E- 122,206 In the District Court of Jefferson County, Texas; 172nd Judicial District, a copy of which Petition is attached hereto as Exhibit C and to which reference is hereby made for all purposes; and WHEREAS, Plaintiff has alleged that as a consequence of the acts and/or omissions of Defendants set forth in Plaintiff's Original Petition that Plaintiff has sustained damages, which damages are described in detail in Plaintiff's Original Petition, Exhibit C hereto, to which reference is hereby made for all purposes; and WHEREAS, there is considerable doubt, disagreement and controversy with reference to the liability of Defendants to Plaintiff, for any amount of damages allegedly sustained by Plaintiff as a result of the aforesaid transactions; and WHEREAS, Defendants, without admitting liability to the Plaintiff for any amount of damages, which liability has and continues to be denied, but acting only in the interest of settling the aforesaid controversy and acting only in the interest of peace, have this day paid to Plaintiff, the sum of in cash; and WHEREAS, for and in consideration of the payment of Plaintiff has released, acquitted and forever discharged Touche Ross & Co., William H. Shireman, Jr., as well as all other constituent partners of Touche Ross & Co., their predecessors and successors in interest, their present and former officers, agents, employees, insurers, attorneys and all other persons, t0515/0178/01wF05 -2- firms or corporations for whom the released entities may be responsible of and from any and all claims, demands, obligations and causes of action of whatsoever nature, whether in contract or in tort, for any form of damages whatsoever, which have accrued or may ever accrue to Plaintiff, for or on account of any and all dealings, services, wort, transactions, obligations, agreements and contracts between the parties hereto occurring through this date, arising out of or connected with that audit proposal dated July 2, 1984, the agreement by Defendants to perform an audit for Plaintiff of Plaintiff's financial statements as of September 30, 1984 and for the fiscal year then ended, the audit performed by Defendants for Plaintiff, any and all reports and/or opinions rendered by Defendants to Plaintiff, whether oral or written, in connection with such audit, and/or any other matter arising out of or related to the events and transactions referred to in Plaintiff's Original Petition. NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That The City of Beaumont, Texas, a Texas Municipal Corporation, for and in consideration of the payment of the sum of set forth above, the receipt and adequacy of which is hereby acknowledged and confessed, do hereby release, acquit and forever discharge Touche Ross & Co., William H. Shireman, Jr., as well as all other constituent Partners of Touche Ross & Co., their predecessors and successors in interest, their present and former officers, agents, employees, insurers,and attorneys and any and all other persons,firms,and corporations for whom the released entities may be responsible of and from any and all claims, demands, obligations and causes of action of whatsoever nature, whether in connate or in tort, for any form of damages whatsoever, which have accrued or may ever accrue to Plaintiff, for or on L0515/0179/01AFOS -3- account of any and all dealings, services, work, transactions, obligations, agreements and contracts between the parties hereto occurring through this date, arising out of or connected with that audit proposal dated July 2, 1984, the agreement by Defendants to perform an audit for Plaintiff of Plaintiff's financial statements as of September 30, 1984 and for the fiscal year then ended, the audit performed by Defendants for Plaintiff, any and all reports and/or opinions, whether oral or written, rendered by Defendants to Plaintiff in connection with such audit, and/or any other matter arising out of or relating to the events and transactions referred to in Plaintiff's Original Petition and all results thereof,past and future, known and to become known, accrued and to accrue. As part of the consideration for the payment of the above-mentioned sum, we have expressly warranted and represented and do hereby for ourselves,our legal representatives, successors and assigns, expressly warrant and represent to each and all of the parties hereby released that: 1. The City of Beaumont has not assigned, pledged or otherwise in any manner whatsoever, sold or transferred, either by instrument in writing or otherwise, any right, title, interest or claim which it has or may have by reason of the dealings and transactions described above or any matters arising out of or related thereto. 2. The City of Beaumont expressly warrants and represents to the parties hereby released that it has fully informed itself of the terms, contents, conditions and effects of this Agreement, that in making this settlement it has had the benefit of advice of counsel of its own choosing; that no promise or representation of any kind has been made to it by the parties hereby released or by anyone acting on their behalf, except as is expressly stated in this instrument, that the City of Beaumont relies L0515/0179/01AF05 -4- i solely and completely upon its own judgment and the advice of their attorneys, in malting this settlement; and Plaintiff fully understands that this is a full, complete, and final release and that the consideration mentioned above is all of I the consideration that will ever be paid it as a result of the herein described transactions and agreements. As part of the consideration for the payment of the above sum of money, we, The City of Beaumont, our successors and assigns have agreed to and do hereby indemnify and hold harmless each and all of the parties hereby released from any and all claims, demands, actions and causes of action of whatsoever nature or character which have been or may hereafter be asserted by any person, firm or corporation whomsoever claiming by, through or under us for any damages, claims or causes of action described or referred to herein. In further consideration of the aforesaid payment, we, The City of Beaumont and our legal representatives, agree that we will not reveal to anyone, including but not limited to any representatives of any news media, the amount, extent, terms, and/or any other details of this Full & Final Release and Settlement Agreement other than to announce that the underlying litigation has been settled to the satisfaction of all of the parties on terms that are agreed to be confidential and the gross amount of all the recoveries the City of Beaumont has made in respect of its loss in the E.S.M. Government Securities, Inc. failure. It is understood and agreed that the confidentiality of this Full & Final Release'and Settlement Agreement and of its terms and conditions as set forth above, is an important part of the settlement itself, and the City, the City Council, their respective officers, agents and employees agree to abide by and comply with the confidentiality portions of this Agreement as set forth hereinabove as well as to the entry by the ws15/0178i01nF05 -5- i Court of an Order protecting and enforcing the confidentiality of this Agreement in the form attached hereto as Exhibit D to this Agreement. EXECUTED IN MULTIPLE ORIGINALS this the day of October, 1989. THE CITY OF BEAUMONT By: City Manager THE STATE OF TEXAS § COUNTY OF § BEFORE ME, the undersigned authority, on this day personally appeared Ray Riley, City Manager of The City of Beaumont, known to me to be the person whose name is subscribed to the foregoing instrument, who, being first duly sworn, deposed and stated that he executed the same for the purposes and consideration stated therein and in the capacity shown. Given under my hand and seal of office, this the day of , 1989. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS iA515i0178/0IAF05 -b- We, Orgain, Bell & Tucker, counsel for The City of Beaumont, do hereby acknowledge that the foregoing Full & Final Release and Settlement Agreement has been fully and completely explained to the City Council of the City of Beaumont, which body has unanimously voted to accept the terms and conditions of the Full&Final Release and Settlement Agreement as well as to Ray Riley, City Manager of the City of Beaumont, prior to the execution thereof. We further represent and warrant to Defendants that the City of Beaumont has not assigned, sold or transferred any interest in its claims against the Defendants to us or any other attorney. ORGAIN, BELL & TUCKER By: J. Hoke Peacock II L0515i0178/01A]; S -7- MUTUAL RELEASE KNOW ALL MEN BY THESE PRESENTS: Whereas, the City of Beaumont, Texas ("Beaumont") , is the plaintiff in that certain lawsuit styled City of Beaumont. Texas vs Ronnie R Ewton and Jerilyn Ewton, Case No. 87-6185-CIV-GONZALEZ, in the United States District Court for the Southern District of Florida, Fort Lauderdale Division, ("the lawsuit") and is the appellant in City of Beaumont, Texas, plaintiff/appellant vs . Ronnie Ewton, defendant, and Jerilyn Ewton, defendant/appellee, Case No. 98-5141 in the United States Court of Appeals for the Eleventh Circuit ("the appeal") , (collectively, "the Litigation") ; and Whereas, Jerilyn Ewton is a defendant in the lawsuit and the appellee in the appeal, and Whereas, the firm of Shutts & Bowen is counsel to Beaumont in the Litigation; and Whereas, Beaumont, Jerilyn Ewton, and Shutts & Bowen desire to reach an amicable settlement of the Litigation, Now, therefore, in consideration of the mutual promises set forth below and other good and valuable consideration, the parties hereby agree as follows : 1. Beaumont agrees to, and does hereby, release Jerilyn Ewton from any and all claims and causes of action EXHIBIT "B" i which were or could have been brought against her in the Litigation, which are related in any way to damages sustained by Beaumont by reason of (1) its investments in ESM Government Securities, Inc. or its related entities, and/or (2) by reason of acts of Ronnie Ewton, her husband. 2. Beaumont agrees to dismiss the appeal with prejudice. 3 . Jerilyn Ewton agrees to, and does hereby, release Beaumont and Shutts & Bowen from any and all claims she may have against them, including but not limited to claims for malicious prosecution, abuse of process, defamation, and any claims for sanctions and attorney' s fees pursuant to Federal Rule of Civil Procedure 11, as a result of Beaumont ' s institution and prosecution of the Litigation against her through its counsel, Shutts & Bowen. 4 . Jerilyn Ewton shall pay to Beaumont the sum of $2, 500 . 00, in full settlement of the Litigation. 5 . In the event Beaumont makes a public announcement of the fact that it has settled the Litigation with Jerilyn Ewton, it shall, as part of the announcement, state the particular amount ($2, 500 . 00) received from Jerilyn Ewton. Beaumont shall use its best efforts. to avoid any public announcement of this settlement in a manner which may tend to imply that Jerilyn Ewton paid more than $2,500 in full settlement of this Litigation. -2- IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on the dates shown below. Jerilyn Ewton Beaumont, TX Date its Date STATE OF ) COUNTY OF ) Before me, the undersigned authority, personally appeared Jerilyn Ewton, to me known to be the person described in and who executed the foregoing instrument and who acknowledged before me that she executed the same. Witness my hand and official seal in the above county and state this day of , 1989 . NOTARY PUBLIC -3- STATE OF TEXAS ) } COUNTY OF ) Before me, the undersigned authority, personally appeared to me known to be the person described in and who executed the foregoing instrument and who acknowledged before me that (s)he executed the same as a duly authorized representative of the City of Beaumont, Texas . Witness my hand and official seal in the above county and state this day of If 1989 . NOTARY PUBLIC 2926m -4- A/RGS/WA7 4 5 Bl If/0915..j SETTLEMENT AGREEMENT AND MUTUAL RELEASE THIS AGREEMENT, entered into as of the day of September , 1989, by and between MARVIN LEON WARNER ( "Warner" ) and CITY OF BEAUMONT, TEXAS ( "Beaumont") ; WITNESSETH: WHEREAS, Warner and Beaumont are parties to certain litigation pending in the United States District Court, Southern District of Florida, known as City of Beaumont, Texas; Clark County, Nevada and City of Harrisburg, Pennsylvania vs Marvin L Warner , Case No. 87-6156-Civ-Paine ( the "Litigation" ) ; and WHEREAS, Warner is currently a debtor 'under Chapter 11 of the Bankruptcy Code, Title 11, U.S. Code; and WHEREAS, Warner has proposed a plan of reorganization (the "Plan" ) for the reorganization of his financial affairs; and WHEREAS, under the terms of the Plan certain litigation, including the Litigation referenced above shall be released, satisfied and dismissed; and WHEREAS, in light of the Plan, the parties hereto desire to settle the Litigation on the terms and conditions stated below. NOW, THEREFORE, the parties agree as follows: 1 . Warner and Beaumont agree to dismiss with prejudice all actions pending between them including without limitation the Litigation and any appeals therefrom. 2. Warner and Beaumont each for him/itself, his/its heirs, successors and assigns, mutually release and forever discharge one another from any and all past, present or future damages, liabilities, claims or causes of action whatsoever which have been or could have been asserted in any action now pending between the parties, including the Litigation. 3 . Without limiting the generality of the foregoing para- graph, Warner and Beaumont, for him/itself and his/its heirs, successors and assigns hereby mutually release and forever discharge one another from any and all past, present or future damages, liabilities, claims or causes of action relating in any EXHIBIT "C" 2 - way to E.S.M. Government Securities, Inc. or any parent , subsidiary, shareholder, employee or agent thereof ( "ESM" ) , the collapse of ESM, or any transaction or dealings between any person and ESM. 4 . Warner and Beaumont shall take all steps including, without limitation, the execution and delivery of all required documents, that are reasonably necessary to effectuate the intent and purpose of this Agreement . 5. This Agreement shall not be construed as an admission on the part of either Warner or Beaumont . 6. Warner and Beaumont represent that he/it has the authority and ability to enter into this Agreement and that he/it has not assigned any claims he/it may have against the other to any third party. 7 . Warner and Beaumont recognize and agree that this Agreement is expressly conditioned upon the confirmation of the Plan by the Bankruptcy Court for the Middle District of Florida. If the Plan is not confirmed, this Agreement shall be of no force and effect . 8. Neither this Agreement nor any other agreement or transaction referred to herein or executed pursuant hereto between or among the parties hereto constitutes a release, waiver , reduction, covenant not to sue, or any other action upon any claim or obligation of any person or entity except as explicitly provided herein or in such other agreement or transaction; all of which other claims and obligations are hereby expressly reserved. Should any release contained in this agreement be subject to a construction negatively affecting the obligation of any person or entity beyond the named releasees, such release shall automatically be amended into a covenant not to sue or such other equivalent covenant as does not affect unnamed obligors under applicable law. 9. In the event that (i) the Plan is not confirmed or is overturned on appeal or Beaumont ' s claim is not allowed in the amount of $5, 200, 000; and ( ii ) Beaumont is required to and does return to the Plan Trustee all funds that it receives under the terms of the Plan, this Agreement shall be of no force and effect , and dismissal of claims executed in connection herewith shall be void and, in those events, the parties hereto expressly agree to waive any future defenses to the extent that they are 3 - based upon such dismissal , it being the intent of the parties to return to the status quo ante as it existed immediately prior to the confirmation hearing . 10 . This Agreement shall be governed and construed in a cccrdance with the laws of the State of Florida. 11 . This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns . 12 . This Agreement may be executed in separate counter- parts, any one of which need not contain the signature of more than one party. All such counterparts of this Agreement taken together shall constitute one and the same instrument . 13 . Capitalized terms not defined in this Agreement shall have the meanings assigned to them in Warner 's Third Modified Plan of Reorganization. IN WITNESS WHEREOF, the parties have executed this Agreement c:. the date first above written. MARVIN LEON WARNER CITY OF BEAUMONT, TEXAS By• RAY RIL , City Man ger NO. E-122,206 THE CITY OF BEAUMONT, TEXAS § IN THE DISTRICT COURT OF vs. JEFFERSON COUNTY, TEXAS TOUCHE ROSS & CO., W I IAM H. SHIREMAN, JR., AND ITS OTHER $ CONSTITUENT PARTNERS § 172ND JUDICIAL DISTRICT ArRFRD n fl GMIENT Be it remembered that on the day of October, 1989 came the parties to this suit acting by their respective counsel of record and announced to the Court that they had reached a compromise and settlement of all the issues involved in this case on the terms hereinafter set forth, and it appearing to the court that a Judgment should be entered finally disposing of this matter, it is ORDERED and DECREED that 1. The amount of consideration paid by the Defendants in respect of this compromise and settlement is to be kept confidential by all parties hereto. Therefore all parties to this proceeding are hereby enjoined from revealing the amount of consideration paid by the Defendants to any person who does not have a genuine need to have such information in order to carry out the compromise and settlement or to invest the funds on behalf of the City. This injunction will be binding upon the parties and all of their respective officers, directors, managers, councilmen, employees, attorneys and consultants. Any breach of this injunction will be punishable as a contempt of this Court and may result in fines, other penalties or even imprisonment. to515i0178i01Booi EXHIBIT °D° E , n A LA A 2. The following disclosures of the amount of consideration paid by the Defendants are expressly permitted but the injunction above is expressly made applicable to all persons to whom such information is communicated and the person(s)revealing such information to such a person is enjoined to advise each such person of this injunction, its terms and effects: a. The actual attorneys, paralegals and secretaries in the firms who represent the respective parties bum who are involved in pt+eparing the documents implementing the compromise and settlement; b. The Mayor, councilmen, City Manager, Fin= Director and City Attorney of the City of Beaumont and their respective assistants and secretaries who are involved in implementing the compromise and settlement and investing the proceeds thereof; C. The former Mayor, former councilmen and former City Managers and Finance Directors of the City of Beaumont who were involved in the prosecution of this litigation and the consulting experts employed by the City's attorneys in this litigation; d. The partners of the Defendants and such other persons associated with Defendants as may be determined by any such partner to need such information; e. The City may announce the total amount that it has recovered in all of its claims and settlements with all parties in all of its claims and litigation arising out of its loss in the E.S.M. Government Securities, Inc. failure or an approximation thereof, which amount or approximation may include the amount of consideration paid by the Defendants herein. 3. This suit is hereby dismissed with prejudice and all cats of court are adjudged against the party incurring same, provided however that this Court expressly retains LB515/0179/01DOOl -2- i jurisdiction over this case to the limited extent necessary to enfom the injunctive provisions of this Judgment for two years after the date this Judgment is entered. Thomas A. Thomas, Judge Presiding APPROVED AS TO FORM & SUBSTANCE: J. Hoke Peacock II Orgain, Bell & Tucker 470 Orleans Beaumont, Texas 77701 ATTORNEYS FOR PLAINTIFF, CITY OF BEAUMONT James Edward Maloney Baker & Botts 3000 One Shell Plaza 910 Louisiana Houston, Texas 77002 ATTORNEYS FOR DEFENDANTS, TOUCHE ROSS & CO. AND ITS CONSTITUENT PARTNERS, INCLUDING WH1-1AM H. SHIREMAN, JR. L0515/017LIOIBODI -3-