Securities and Exchange Commission v. Peter L Jensen et al

Filing 252

FINAL JUDGMENT AS TO DEFENDANT THOMAS C. TEKULVE, JR. by Judge Manuel L. Real: Upon Defendant's Consent 250 , IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant Thomas C. Tekulve, Jr. is permanently restrained and enjoined from violatin g Section 17(a) of the Securities Act of 1933 [15 U.S.C. Section 77q(a)], Section 10(b) of the Securities Exchange Act of 1934 [15 U.S.C. Section 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. Section 240.10b-5], in the offer or sale of any security by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly, etc. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall pay a civil penalty in t he amount of $130,000.00 to the Securities and Exchange Commission. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall reimburse BWI Liquidating Trust $1,200.00 See document for further details. (MD JS-6, Case Terminated). (gk)

JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. CV 11-05316-R

SECURITIES AND EXCHANGE
COMMISSION,

FINAL JUDGMENT AS TO
DEFENDANT THOMAS C.
TEKULVE, JR.

Plaintiff,
vs.

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PETER L. JENSEN AND THOMAS
C. TEKULVE, JR.,

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Defendants.

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The Securities and Exchange Commission (“SEC”) having filed a Complaint
and Defendant Thomas C. Tekulve, Jr. (“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 and except as

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otherwise provided herein in paragraph XV); waived findings of fact and conclusions

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of law; and waived any right to appeal from this Judgment:

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I.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is

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permanently restrained and enjoined from violating Section 17(a) of the Securities

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Act of 1933 (the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale of any

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security by the use of any means or instruments of transportation or communication

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in interstate commerce or by use of the mails, directly or indirectly:

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(a)

to employ any device, scheme, or artifice to defraud;

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(b)

to obtain money or property by means of any untrue statement of a

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material fact or any omission of a material fact necessary in order to

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make the statements made, in light of the circumstances under which

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they were made, not misleading; or

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(c)

to engage in any transaction, practice, or course of business which
operates or would operate as a fraud or deceit upon the purchaser.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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II.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from violating, directly or indirectly, Section

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10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. §

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78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using

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any means or instrumentality of interstate commerce, or of the mails, or of any

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facility of any national securities exchange, in connection with the purchase or sale of
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any security:

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(a)

to employ any device, scheme, or artifice to defraud;

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(b)

to make any untrue statement of a material fact or to omit to state a

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material fact necessary in order to make the statements made, in the light

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of the circumstances under which they were made, not misleading; or

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(c)

to engage in any act, practice, or course of business which operates or
would operate as a fraud or deceit upon any person.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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III.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from violating, directly or indirectly, Section

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13(a) of the Exchange Act [15 U.S.C. § 78t(a)], and Rules 12b-20, 13a-1 and 13a-13

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thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and 240.13a-13] [15 U.S.C. §

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78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by filing

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with the Commission required periodic reports that fail to include material

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information necessary to make the required statements, in light of the circumstances

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under which they were made, not misleading.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).
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IV.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from violating, directly or indirectly, Section

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13(b)(5) of the Exchange Act [15 U.S.C. §78m(b)(5)] and Rule 13b2-1 thereunder

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[17 C.F.R. §240.13b2-1], by knowingly falsifying books, records and accounts

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issuers are required to make and keep, in reasonable detail, that accurately and fairly

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reflect the issuer’s transactions and dispositions of its assets, and by directly or

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indirectly falsifying or causing to be falsified issuers’ books, records and accounts.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from violating, directly or indirectly, Rule

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13b2-2 [17 C.F.R. § 240.13b2-2], by

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a.

making or causing to be made materially false or misleading statements

to accountants in connection with; or
b.

omitting to state, or causing another person to omit to state, material

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facts necessary in order to make statements made, in light of the circumstances under

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which such statements were made, not misleading, to accountants in connection with:

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i.

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an audit, review or examination of the financial statements
of the issuer required to be made; or

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the preparation or filing of a document or report required to
be filed with the Commission.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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VI.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from violating, directly or indirectly, Rule

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13a-14 [17 C.F.R. § 240.13a-14], by falsely certifying that an issuer’s annual and

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quarterly reports fully comply with the requirements of the Exchange Act and fairly

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present, in all material respects, the financial condition and results of operations of

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the company, when, in fact, the reports contain untrue statements of material fact and

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omit material information necessary to make the reports not misleading

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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VII.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from violating, directly or indirectly, Section

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304(a) of the Sarbanes-Oxley Act of 2002 by failing to reimburse an issuer for any

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bonus or other incentive-based compensation and any profits realized from the sale of

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the issuer’s securities during the 12-month period following the first public issuance

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or filing with the Commission of any financial document, for which an issuer is

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required to prepare an accounting restatement due to the material noncompliance of
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the issuer, as a result of misconduct, with any financial reporting requirement under

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the securities laws.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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VIII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from, directly or indirectly, controlling any

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person who violates Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)], and

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Rule 10b-5 thereunder [17 C.F.R. § 240.10b-5], Section 13(a) of the Exchange Act

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[15 U.S.C. § 78t(a)], and Rules 12b-20, 13a-1 and 13a-13 thereunder [17 C.F.R. §§

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240.12b-20, 240.13a-1 and 240.13a-13], unless Defendant acts in good faith and does

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not directly or indirectly induce the act or acts constituting the violation.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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IX.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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is permanently restrained and enjoined from aiding and abetting any violation of

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Section 10(b) of the Exchange Act [15 U.S.C. § 78j(b)], and Rule 10b-5 thereunder

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[17 C.F.R. § 240.10b-5], Section 13(a) of the Exchange Act [15 U.S.C. § 78t(a)], and

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Rules 12b-20, 13a-1 and 13a-13 thereunder [17 C.F.R. §§ 240.12b-20, 240.13a-1 and
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240.13a-13],Section 13(a) of the Exchange Act [15 U.S.C. § 78m(a)] by knowingly

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or recklessly providing substantial assistance to an issuer’s violation of the aforesaid

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provisions.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as

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provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also

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binds the following who receive actual notice of this Final Judgment by personal

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service or otherwise: (a) Defendant’s officers, agents, servants, employees, and

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attorneys; and (b) other persons in active concert or participation with Defendant or

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with anyone described in (a).

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X.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, pursuant

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to Section 21(d)(2) of the Exchange Act [15 U.S.C. § 78u(d)(2)] and/or Section 20(e)

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of the Securities Act [15 U.S.C. § 77t(e)]], Defendant is prohibited for one (1) year

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following the date of entry of this Final Judgment, from acting as an officer or

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director of any issuer that has a class of securities registered pursuant to Section 12 of

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the Exchange Act [15 U.S.C. § 78l] or that is required to file reports pursuant to

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Section 15(d) of the Exchange Act [15 U.S.C. § 78o(d)].

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XI.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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shall pay a civil penalty in the amount of $130,000.00 to the Securities and Exchange

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Commission pursuant to Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and

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Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]. Defendant shall make

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this payment pursuant to the terms of the payment schedule set forth in paragraph XII

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below after entry of this Final Judgment.

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Defendant may transmit payment electronically to the Commission, which will

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provide detailed ACH transfer/Fedwire instructions upon request. Payment may also

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be made directly from a bank account via Pay.gov through the SEC website at

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http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified
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check, bank cashier’s check, or United States postal money order payable to the

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Securities and Exchange Commission, which shall be delivered or mailed to

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Enterprise Services Center

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Accounts Receivable Branch

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6500 South MacArthur Boulevard

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Oklahoma City, OK 73169

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and shall be accompanied by a letter identifying the case title, civil action number,

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and name of this Court; Defendant’s name as a defendant in this action; and

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specifying that payment is made pursuant to this Final Judgment.

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Defendant shall simultaneously transmit photocopies of evidence of payment

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and case identifying information to the Commission’s counsel in this action. By

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making this payment, Defendant relinquishes all legal and equitable right, title, and

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interest in such funds and no part of the funds shall be returned to Defendant. The

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Commission shall send the funds paid pursuant to this Final Judgment to the United

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States Treasury. Defendant shall pay post-judgment interest on any delinquent

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amounts pursuant to 28 USC § 1961.

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XII.
Defendant shall pay the civil penalty of $130,000.00 in four (4) installment

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payments to the Commission according to the following schedule: (1) $50,000,

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within fourteen (14) of days of entry of this Final Judgment; (2) $27,000, within 90

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days of the entry of Final Judgment; (3) $27,000, within 180 days of entry of the

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Final Judgment, and (4) $26,000 within 270 days of the entry of Final Judgment.

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Payments shall be deemed made on the date they are received by the Commission and

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shall be applied first to post judgment interest, which accrues pursuant to 28 U.S.C. §

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1961 on any unpaid amounts due after 14 days of the entry of Final Judgment. Prior

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to making the final payment set forth herein, Defendant shall contact the staff of the

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Commission for the amount due for the final payment.

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If Defendant fails to make any payment by the date agreed and/or in the

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amount agreed according to the schedule set forth above, all outstanding payments

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under this Final Judgment, including post-judgment interest, minus any payments

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made, shall become due and payable immediately at the discretion of the staff of the

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Commission without further application to the Court.

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XIII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant

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shall reimburse BWI Liquidating Trust $1,200.00 pursuant to Section 304 of the

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Sarbanes-Oxley Act of 2002, 15 U.S.C. 7243(a) within fourteen (14) of days of entry

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of this Final Judgment. Defendant may transmit payment electronically to BWI

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Liquidating Trust, c/o Walker Truesdell Roth & Associates, which will provide

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detailed ACH transfer/Fedwire instructions upon request. The payment shall be

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accompanied by a letter identifying Thomas C. Tekulve, Jr. as a defendant in this

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action; setting forth the title and civil action number of this actions and the name of

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this Court; and specifying that payment is made pursuant to this Final Judgment.

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Defendant shall simultaneously transmit photocopies of such payment and letter to

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the Commission’s counsel in this action. By making this payment, Defendant

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relinquishes all legal and equitable right, title, and interest in such funds, and no part

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of the funds shall be returned to Defendant.

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XIV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that

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Defendant’s Consent is incorporated herein with the same force and effect as if fully

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set forth herein, and that Defendant shall comply with all of the undertakings and

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agreements set forth therein.

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XV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, solely for

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purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code,

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11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant,
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and further, any debt for disgorgement, prejudgment interest, civil penalty or other

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amounts due by Defendant under this Final Judgment or any other judgment, order,

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consent order, decree or settlement agreement entered in connection with this

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proceeding, is a debt for the violation by Defendant of the federal securities laws or

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any regulation or order issued under such laws, as set forth in Section 523(a)(19) of

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the Bankruptcy Code, 11 U.S.C. §523(a)(19).

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XVI.

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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
Judgment.

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XVII.

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There being no just reason for delay, pursuant to Rule 54(b) of the Federal

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Rules of Civil Procedure, the Clerk is ordered to enter this Judgment forthwith and

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without further notice.

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Dated: September 12, 2017
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UNITED STATES DISTRICT JUDGE

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