HomeMy WebLinkAbout981609.tiff RESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASES WITH REFCO
ENTITIES AND AUTHORIZE CHAIR TO SIGN -WYMER
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Settlement Agreement and Mutual
Release concerning the OCM litigation between the County of Weld, State of Colorado, by and
through the Board of County Commissioners of Weld County, on behalf of Refco Group, Inc.,
and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a
copy of which are attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Settlement Agreement and Mutual Release between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
and Refco Group, Inc., be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 31st day of August, A.D., 1998.
BOARD OF COUNTY COMMISSIONERS
WE9 COUNTY, COLORADO
ATTEST: (-4;2721- tr-c.C.,X64..�iCrc
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BY: •„
Deputy CP@ OS �i i�tisr�c�
�' E. Baxter
APPROVED AS TO FORM: V`
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Ii�// Dad K. Hall
unty Attorney ale L >G
arbara J. Kirkmeyer
981609
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DEPARTMENT OF FINANCE AND ADMINISTRATION
PHONE (303) 356-4000, EXT.4218
I FAX: (970) 352-0242
WI 915 10TH STREET
C. P.O. BOX 758
GREELEY, COLORADO 80632
COLORADO
September 9, 1998
STATE OF COLORADO )
ss
COUNTY OF WELD )
RE: Resolution #981609, dated August 31, 1998.
I, Donald D. Warden, Clerk to the Board of County Commissioners, in and for the County of
Weld, State of Colorado, do hereby certify that the attached copy is a true and correct duplicate of
said resolution.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said County
at Greeley, Colorado, this 9th day of September, 1998.
CLERK TO THE BOARD
•
;r 'hN. f 7 Oct` BY: / v ; - /2a,cc�'
(C)r " --7--";,..s' ti Deputy Clerk to the Board
981609
GRAUBARD MOLLEN & MILLER
600 THIRD AVENUE
NEW YORK, N. Y. 10016-2097
FACSIMILE: (212) 818-8800 DIRECT DIAL NUMBER
(212) 818-8881
818-8797
August 27, 1998
VIA FEDEX ._.,_. �
1-'y fin' y_;r.:;;: _' '-
Lee D. Morrison, Esq. 1 r'lfa I)
Assistant Weld County Attorney .._
915 10th Street / AUG 2 8 1998
Greeley, Colorado 80632
ELD COUNTY
Re: Sanger v. Refco Group, Inc. AT+ C RNEY:S
Dear Mr. Morrison:
Pursuant to Michael Willoughby's instructions, I have enclosed the
Settlement Agreement and Mutual Releases with respect to the claims by Weld County
against certain Refco Entities. Please have the agreement fully executed on behalf of
Weld County. If you have any questions, please call Mr. Willoughby.
'n r ly
Therese M. Doh rty
TMD/mam
Enclosures
cc: VIA FEDEX
Michael L. Willoughby, Esq. (w/enc.)
981609
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This SETTLEMENT AGREEMENT AND MUTUAL RELEASES (the
"Agreement") is made and entered as of August 24, 1998, among Refco, Inc., Refco
Securities, Inc., Refco Capital Corporation and Refco Group, Ltd. (collectively, "Refco
Entities") and Francis M. Loustalet ("Loustalet"), Arthur L. Willis II, as successor to
Loustalet ("Willis"), and Board of County Commissioners of Weld County, Colorado
("Weld").
WHEREAS, on or about February 17, 1994, Loustalet and Weld filed a
Second Amended Complaint ("Complaint") in the United States District Court for the
Central District of California ("Court"), against the Refco Entities, and others, in a case
entitled Francis M. Loustalet, et ano. v. Refco, Inc., et al., Case No. CV 92-7628-RJK
("Action"); and
WHEREAS, Loustalet and Weld have asserted claims in the Action against
the Refco Entities relating to losses suffered in Weld's investment portfolio; and
WHEREAS, the Refco Entities deny all material allegations of the
Complaint, maintain that their conduct has been legal and proper in all respects and
continue to deny any and all fault or liability thereunder; and
WHEREAS, the parties hereto, in order to save the expense of a protracted
trial and avoid the uncertainties associated with continuing the Action, wish to settle and
discontinue the Action and to release each other from any and all liability connected
therewith, with the understanding that the releases do not constitute an admission of any
liability, wrongdoing of any nature, or the lack of merit of any claims or defenses
asserted in the action, or illegal conduct, or any fault of the parties;
IT IS HEREBY STIPULATED AND AGREED, by and among the parties
hereto, that:
981609
1. In order to induce the Refco Entities to enter into this Agreement and
to pay Weld the amount referred to in paragraph 3 hereof, Loustalet, Willis and Weld
represent and warrant that they knows of no claim or claims that have been asserted
against Loustalet, Willis or Weld regarding or stemming from the alleged activities of
Steven D. Wymer, Denman & Company, Institutional Treasury Management, Inc. or any
entity affiliated with Mr. Wymer (collectively, "Wymer"). Loustalet, Willis and Weld further
represent that they have has not been informed by any entity that it intends to assert
claims against Loustalet, Willis or Weld regarding or stemming from Wymer's alleged
activities.
2. Loustalet, Willis and Weld further represent and warrant that they
have not assigned, conveyed or otherwise transferred to any person or entity any claim
or right of action of any kind against the Refco Entities or other persons or entities
released pursuant to paragraphs 5 and 6 of this Agreement.
3. Upon execution of this Agreement by all parties, and receipt by
Graubard Mollen & Miller, counsel for the Refco Entities, of this Agreement duly signed
by Loustalet, Willis and Weld, as provided in paragraph 14 hereof, together with the
documents referred to in that paragraph 14, and in settlement of the Action, the Refco
Entities shall pay to Weld the sum of Nine Hundred Thousand Dollars ($900,000.00).
The payment shall be made by wire-transfer to Norwest Bank, La Salle Branch, ABA
102000076, Account No. 4428004375, Attention: Weld County Treasury, Collection and
Clearing Account.
4. Upon receipt of the payment described in paragraph 3 above,
Borchard & Willoughby, P.C., counsel for Loustalet, Willis and Weld, shall file with the
Court a stipulation of dismissal, with prejudice and without costs, of the Action
("Stipulation of Dismissal").
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5. Weld, for itself and its past and present public officials, elected
representatives, attorneys, administrators, agents, employees, other representatives, and
successors and assigns, does hereby release, and discharge the Refco Entities, and
each of them, and their respective present and former affiliates, parents, subsidiaries,
officers, directors, trustees, partners, stockholders, employees, attorneys, agents,
representatives, administrators, insurers, sureties, successors and assigns (collectively,
"Released Parties"), from all actions, causes of action, suits, debits, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controver-
sies, agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, which against
Released Parties Weld, its present and former public officials, elected representatives,
employees, agents, attorneys, administrators, representatives, successors and assigns
ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing which in any way relates to or arises out of any matter asserted,
or which could have been asserted in the Action, or elsewhere, including, without
limitation, for any conduct or inaction of Kimberly Goodman, from the beginning of the
world to the day and date of this Agreement.
6. Loustalet and Willis, for themselves and each of their past and
present attorneys, administrators, agents, employees, other representatives, and
successors and assigns, does hereby release, and discharge the Released Parties from
all actions, causes of action, suits, debits, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and demands
whatsoever, in law, admiralty or equity, which against Released Parties Loustalet and
Willis, their present and former employees, agents, attorneys, administrators, other
representatives, successors and assigns ever had, now have or hereafter can, shall or
may have, for, upon, or by reason of any matter, cause or thing which in any way relates
to or arises out of any matter asserted, or which could have been asserted in the Action,
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or elsewhere, including, without limitation, for any conduct or inaction of Kimberly
Goodman, from the beginning of the world to the day and date of this Agreement.
7. The Refco Entities, and each of them, for themselves and their
respective present and former affiliates, parents, subsidiaries, officers, directors, trustees,
partners, stockholders, employees, attorneys, agents, representatives, administrators,
successors and assigns do hereby release and discharge Weld and its present and
former public officials, elected representatives, employees, agents, representatives,
attorneys, insurers, sureties, successors and assigns (collectively, "Weld's Rep-
resentatives"), from all actions, causes of action, suits, debits, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty or equity, which against Weld and
Weld's Representatives the Released Parties ever had, now have or hereafter can, shall
or may have, for, upon, or by reason of any matter, cause or thing which in any way
relates to or arises out of any matter asserted, or which could have been asserted in the
Action, or elsewhere, from the beginning of the world to the day and date of this
Agreement.
8. The Refco Entities, and each of them, for themselves and their
respective present and former affiliates, parents, subsidiaries, officers, directors, trustees,
partners, stockholders, employees, attorneys, agents, representatives, administrators,
successors and assigns do hereby release and discharge Loustalet, Willis and their
present and former employees, agents, administrators, other representatives, attorneys,
successors and assigns (collectively, "Loustalet's Representatives"), from all actions,
causes of action, suits, debits, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims, and demands whatsoever,
in law, admiralty or equity, which against Loustalet, Willis and Loustalet's Rep-
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resentatives the Released Parties ever had, now have or hereafter can, shall or may
have, for, upon, or by reason of any matter, cause or thing which in any way relates to
or arises out of any matter asserted, or which could have been asserted in the Action,
or elsewhere, from the beginning of the world to the day and date of this Agreement.
9. Notwithstanding the foregoing, Loustalet, Willis and Weld do not
release Kimberly Goodman, individually, from any claims, liabilities, judgments, orders,
or obligations to Loustalet, Willis and Weld. However, it is the intent of the parties by
this Agreement to release fully and completely the Refco Entities from any and all claims
relating to Goodman's activities, as set forth in paragraphs 5 and 6, above.
10. The parties to this Agreement agree, represent and warrant that the
matters released herein are not limited to matters which are known or disclosed, and
waive any and all rights and benefits which they now have, or in the future may have,
conferred upon them by virtue of the provisions of Section 1542 of the Civil Code of the
State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AF-
FECTED HIS SETTLEMENT WITH THE DEBTOR.
All parties expressly acknowledge that the effect and import of this
provision has been fully explained to them by their own counsel.
11. The parties to this Agreement agree that they will execute any and
all additional documents necessary to effect the implementation of the provisions
contained herein.
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12. The parties to this Agreement hereby acknowledge that, except as
provided for elsewhere herein, this Agreement is a complete accord and satisfaction of
all disputes, claims, causes of action, and counterclaims that have been or may have
been asserted or filed. No party shall seek any further remedy, including an order
compelling discovery, from the other party in the Action.
13. This Agreement shall be deemed to fall within the broadest
protections afforded compromises and offers to compromise by Rule 408 of the Federal
Rules of Evidence and any comparable provisions of state law.
14. Each of the parties to this Agreement represents and warrants that
it has full authority to execute the Agreement and to bind itself to the Agreement by
execution hereof, that each party has obtained all necessary legal approvals to enter into
this Agreement, and that the execution and delivery of this Agreement will not violate any
agreement, court order, administrative order of any governmental entity, or any law or
governmental regulation. Each party to this Agreement, with the exception of Loustalet,
shall submit concurrent with the execution of this Agreement a resolution or other
satisfactory document indicating that the signatory for that party is vested with the
authority to bind the party for purposes of this Agreement.
15. Loustalet, Willis and Weld hereby acknowledge that the Agreement
was negotiated and executed in good faith and that the terms of this Agreement,
including those set forth in paragraph 3 hereof, are within the reasonable range of the
Refco Entities' potential share and percentage of liability, if any, for Loustalet, Willis
and/or Weld's damages, taking in to account the facts and circumstances of the Action,
as enunciated in Tech-Bilt v. Woodward Clyde & Assoc., 38 Cal. 3d 488, 213 Cal. Rptr.
256 (1985). Loustalet, Willis and Weld further agree to assist the Refco Entities should
the Refco Entities seek a judicial determination regarding the good faith nature of the
Agreement and/or an order barring contribution claims. This assistance may include, but
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981.609
is not limited to, providing the Refco Entities with declarations and/or other evidence
supporting the good faith nature of the Agreement, consistent with preserving the
confidentiality of information or documents protected from disclosure by the attorney-
client privilege and/or attorney work product doctrine.
16. This Agreement may be executed in multiple counterparts and shall
become effective when it has been signed by duly authorized representatives of each
of the parties, the sum set forth in paragraph 3 has been paid, and the Stipulation of
Dismissal is filed.
17. This Agreement is binding upon, and shall inure to the benefit of, the
Refco Entities, Loustalet, Willis, Weld and their respective successors and assigns.
18. This Agreement reflects the joint drafting efforts of each party hereto
in consultation with their respective legal counsel. In the event of any dispute,
disagreement, or controversy regarding the Agreement, the parties shall be considered
joint authors and no provision shall be interpreted against any party because of putative
authorship. The parties agree that the canon of contract interpretation set forth in
Section 1654 of the California Civil Code shall not be applied in the construction or
application of this Agreement.
19. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
20. This Agreement, the Stipulation of Dismissal, and the documents
referred to in paragraph 14 hereof, represent the entire agreement of the parties and is
made without reliance upon any statement or representation not contained herein, the
making of any such statements or representations being specifically denied.
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II):
21. THE UNDERSIGNED HEREBY CERTIFY THEY HAVE READ ALL
OF THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASES AND FULLY
UNDERSTAND ALL OF THE SAME.
►.,. °y !r+-yc ±a Qa
FRANCIS M. LO ST T
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WELD COUNTY - E•
icci By: .4-JI X�i�
BY: ' ,'�u�l!"!-�' _ BOARD OF COUN COMMISSIONERS OF
DEPUTY CLE1 "!� , UN , C LORADO� +may -'
(08/31/98)
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ARTHUR L. WILLIS II
By:
REFCO, INC.
By:
REFCO SECURITIES, INC.
By:
REFCO CAPITAL CORPORATION
By:
REFCO GROUP, LTD.
8
981609
21. THE UNDERSIGNED HEREBY CERTIFY THEY HAVE READ ALL
OF THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASES AND FULLY
UNDERSTAND ALL OF THE SAME.
By:
FRANCIS M. LOUSTALET
By:
BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY, COLORADO
By:
ARTHUR L. WILLIS II �I
By: /11/4,:j1 ' .-
REFCO, INC.
By: '!A,
FCO SECU IE ,
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By: !` •
REFCO CAPITAL CORPORATION
By: Lit
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REFCO GROUP, LTD.
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