Kleeberg et al v. Eber et al
Filing 455
FINAL JUDGMENT. It is now, therefore, ORDERED, ADJUDGED, AND DECREED that: The Eber Defendants are hereby enjoined and restrained from undertaking any acts to exercise the Transfer Restriction with respect to, or to otherwise obstruct, the final distribution of all EB&C stock from the corpus of the Allen Eber Trust CNB shall distribute the stock of EB&C one third to Wendy Eber in her capacity as executrix of Lester's estate, one third to Audrey Hays, one sixth to Daniel Kleeberg, and one sixth to Lisa Stein. The Eber Defendants forthwith shall execute such documents and take such actions as CNB or the plaintiffs reasonably may request, or that the Court may order, to effectuate that distribution. The Alexbay Foreclosure is vo id and set aside. The Court hereby imposes a constructive trust for the benefit of EBWLC on all property, whether personal or real, tangible or intangible, vested or contingent, that the Eber Defendants have received, or hereafter may receive, di rectly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the Alexbay Foreclosure including, without limitation, stock in Eber Metro and Eber-CT, as well as all distributions made to the Eber Defendants in relation thereto with prejudgment interest as set forth in the Opinion. The Eber Defendants shall transfer and forthwith assign to EBWLC all such property that they now have or hereafter may obtain. The August 2012 Employment Agreement is void and set aside. The Court hereby imposes a constructive trust for the benefit of EBWLC on all property, whether personal or real, tangible or intangible, vested or contingent, that the Ebe r Defendants have received, or hereafter may receive, directly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the August 2012 Employment Agre ement including, without limitation, the 2,000 shares of Eber Metro stock issued to Wendy Eber thereunder. The Eber Defendants shall transfer and forthwith assign to Eber Metro all such property that they now have or hereafter may obtain. The Cour t awards prejudgment interest at the annual rate of nine percent on any distributions received by the Eber Defendants in relation to the 2,000 shares of Eber Metro stock. The Polebridge Transaction is void and set aside. The Court hereby imposes a constructive trust for the benefit of Eber Metro on all property, whether personal or real, tangible or intangible, vested or contingent, that the Eber Defendants have received, or hereafter may receive, directly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the Polebridge Transaction including, without limitation, any stock in Eber-CT. The Eber Defendants shall transfer and forth with assign to Eber Metro all such property that they now have or hereafter may obtain. The Court hereby imposes a constructive trust for the benefit of Eber Metro on all property, whether personal or real, tangible or intangible, vested or cont ingent, that the Eber Defendants have received, or hereafter may receive, directly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the Slocum M aine Call Option including, without limitation, all stock in Slocum Maine. The Eber Defendants shall transfer and forthwith assign to Eber Metro all such property that they now have or hereafter may obtain. The Court awards prejudgment interest at the annual rate of nine percent on any distributions received by the Eber Defendants in relation to the Slocum Maine stock. The 750 shares of Class B junior preferred EBWLC stock issued to Lester Eber on February 15, 2017 are cancelled and deemed to have had no value. The Southern Consulting Agreements are void and set aside. The 2006 Notes are void and set aside. The April 2012 Employment Agreement is void and set aside. The Estate of Lester Eber shall pay EBWLC $4,903,957.06 of princi pal disgorgement (the net amount after credit for $803,265.86 owed by EBWLC to Lester) and $5,177,789.49 of interest through the date of the verdict-$10,081,746.60 combined-plus interest on any unpaid balance thereafter at the annua l rate of nine percent. The Estate of Lester Eber shall pay Eber-CT $3,367,278.86 of principal disgorgement and $1,960,172.16 of interest through the date of the verdict -$5,327,451.02 combined -plus interest on any unpaid balance thereafter at the annual rate of nine percent. Wendy Eber shall pay Eber-CT $2,481,413.97 of principal disgorgement and $1,382,729.14 of interest through the date of the verdict-$3,864,143.11 combined-plus interest on any unpaid ba lance thereafter at the annual rate of nine percent. The Estate of Lester Eber shall pay Slocum Maine $10,000 of principal disgorgement and $7,416.99 of interest through the date of the verdict -$17,416.99 combined - plus interest on any unpaid balance thereafter at the annual rate of nine percent. Wendy Eber shall pay Slocum Maine $10,000 of principal disgorgement and $7,416.99 of interest through the date of the verdict-$17,416.99 combined-plus interest on a ny unpaid balance thereafter at the annual rate of nine percent. Wendy Eber shall pay plaintiffs $650,000 of punitive damages, split evenly among the three Plaintiffs-$216,666.66 to each-plus interest on any unpaid balance thereafter a t the annual rate of nine percent. Wendy Eber is prohibited from serving as an officer or director of EB&C, EBWLC, Eber Metro, or Slocum Maine until March 30, 2025. Notwithstanding anything to the contrary in this Judgment, nothing herein enjoin s, restrains or otherwise prohibits the Eber Defendants from litigating this action or any appeal of any order or judgment issued in this action. In accordance with Federal Rule of Civil Procedure 65( d)(2), the injunctive and restraining provisi ons of this Judgment are binding upon the parties; their officers, agents, servants, employees, and attorneys; and other persons who are in active concert and participation with any, and have actual notice, of the foregoing. This Judgment finally disposes of all claims between and among Plaintiffs and the Eber Defendants. All other defendants have settled the action. Accordingly, the Clerk shall enter this Judgment as a final judgment and close the case. This Court retains jurisdiction of this case and over these parties for purposes of enforcing and resolving any disputes concerning this Judgment. (Signed by Judge Lewis A. Kaplan on 4/7/23) (yv)
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