Opinion
Master File No. 02 Civ. 3288 (DLC), No. 04 Civ. 0233 (DLC).
November 14, 2005
FINAL ORDER AND JUDGMENT
WHEREAS, all plaintiffs (the "Settling Plaintiff") in the above captioned action (the "Action") have asserted, in their Amended Complaint dated July 11, 2003 (the "Complaint"), certain damages against Bernard J. Ebbers ("Ebbers") and other defendants named therein (the "Non-Settling Defendants"); and
WHEREAS, the Settling Plaintiffs and Ebbers have reached an agreement intended to settle, compromise and dismiss, on the merits and with prejudice, all claims asserted by this Settling Plaintiff against Ebbers (the "Settlement Agreement");
NOW THEREFORE, IT IS HEREBY ORDERED that:
1. This Order and Judgment incorporates by reference the definitions in the Settlement Agreement, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Settlement Agreement.
2. The Complaint and the Action are hereby dismissed without costs and on the merits and with prejudice in full and final discharge of any and all claims or obligations which were or could have been asserted by this Settling Plaintiff against Ebbers in the Complaint or the Action. The Court finds the Complaint was filed on a good faith basis in accordance with the Private Securities Litigation Reform Act and Rule 11 of the Federal Rules of Civil Procedure based upon all publicly available information.
3. "Released Claim" means:
a. with respect to the Ebbers Releasees (as defined herein), the release by this Settling Plaintiff of all claims and causes of action of every nature and description, known and unknown, whether under federal, state, common or foreign law, whether brought directly or derivatively, based upon, arising out of, or relating in any way to (a) investments (including, but not limited to, purchases, sales, exercises, and decisions to hold) in securities issued by WorldCom, including without limitation all claims arising out of or relating to any disclosures, public filings, registration statements or other statements by WorldCom or Ebbers; and (b) all claims asserted by or that could have been asserted by the Settling Plaintiffs against the Ebbers Releasees in the Action;
b. with respect to the Plaintiff Releasees (as defined herein), the release by Ebbers of any claims relating to the institution or prosecution of the Action.
4. "Ebbers Releasees" means Ebbers, his spouse and his family members, heirs, executors, administrators, successors, assigns, present and former attorneys, legal representatives, accountants, insurers, and agents, and any person or entity which is or was related to or affiliated with any Ebbers Releasee or in which any Ebbers Releasee has or had a controlling interest and the parents, subsidiaries, division, affiliates, predecessors, successors, present and former employees, officers and directors, attorneys, accountants, insurers, assigns and agents of each of them. The Ebbers Releasees shall not include any of the Non-Settling Defendants.
5. "Plaintiff Releasees" means this Settling Plaintiff and its respective present and former parents, subsidiaries, division and affiliates, the present and former employees, officers and directors of each of them, the present and former attorneys, accountants, insurers, and agents of each of them, and the predecessors, heirs, successors and assigns of each, and any person or entity in which this Plaintiff Releasee has or had a controlling interest or which is or was related to or affiliated with this Plaintiff Releasee.
6. "Released Parties" means:
a. with respect to Ebbers, the Ebbers Releasees;
b. with respect to this Settling Plaintiff, the Plaintiff Releasees.
7. This Settling Plaintiff, its successors and assigns of any of them, and anyone claiming through or on behalf of any of them, are hereby permanently barred and enjoined from commencing, instituting or prosecuting in this Action or any other litigation or proceeding any Released Claims against any of the Ebbers Releasees or from pursuing outside of this Action any claim against any of the Ebbers Releasees that arises from or relates to the facts alleged in the Complaint.
8. Ebbers, his successors and assigns of any of them, and anyone claiming through or on behalf of any of them, is hereby permanently barred and enjoined from commencing, instituting or prosecuting in this Action or any other litigation or proceeding any Released Claims against this Settling Plaintiff.
9. The Released Claims against each and all of the Released Parties shall be released and dismissed with prejudice and on the merits, without costs to any party, upon entry of this Order and Judgment.
10. Neither the Settlement Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, nor any of the documents or statements referred to therein shall be:
a. offered into evidence as proof of liability or a presumption, concession or an admission by the Released Parties of the truth of any fact alleged or the validity of any claim that has been, could have been or in the future might be asserted in the Complaint, or otherwise against the Released Parties, or of any purported liability, fault, wrongdoing, or otherwise of the Released Parties; or
b. offered or received in evidence as proof of a presumption, concession or an admission of any purported liability, wrongdoing, fault, misrepresentation or omission in any statement, document, report or financial statement heretofore or hereafter issued, filed, approved or made by any of the Released Parties or otherwise referred to for any other reason, other than for the purposes of and in such proceeding as may be necessary for construing, terminating or enforcing the Settlement Agreement; or
c. construed as a concession or admission that the Settling Plaintiff has suffered any damage; or
d. construed as or received in evidence as an admission, concession or presumption against this Settling Plaintiff that any of its claims are without merit.
11. The Non-Settling Defendants are hereby permanently BARRED, ENJOINED and RESTRAINED from (i) commencing, prosecuting, or asserting any claim for indemnity or contribution against the Ebbers Releasees or any other claim against the Ebbers Releasees where the injury to the entity/individual is the entity's/individual's actual or threatened liability to this Settling Plaintiff, arising out of or related to the claims or allegations asserted by this Settling Plaintiff in the Complaint, whether arising under state, federal or foreign law as claims, cross-claims, counterclaims, or third-party claims, whether asserted in the Complaint, in this Court, in any federal or state court, or in any other court, arbitration proceeding, administrative agency, or other forum in the United States or elsewhere. The Non-Settling Defendants shall be entitled to a judgment credit, on each claim for which contribution against Ebbers could be sought, in an amount that is the greater of the total consideration paid by Ebbers to the Settling Plaintiffs pursuant to the Settlement Agreement or the proportionate share of Ebbers' fault as determined at trial.
12. Subject to this Order and Judgment becoming final, the Ebbers Releasees are hereby permanently BARRED, ENJOINED and RESTRAINED from (i) commencing, prosecuting or asserting any claim for indemnity or contribution against the Non-Settling Defendants or any other claim against the Non-Settling Defendants where the injury to Ebbers is Ebbers' actual or threatened liability to this Settling Plaintiff, arising out of or related to the claims or allegations asserted by this Settling Plaintiff in the Complaint, whether arising under state, federal or foreign law as claims, cross-claims, counterclaims, or third-party claims, whether asserted in the Complaint, in this Court, in any federal or state court, or in any other court, arbitration proceeding, administrative agency or other forum in the United States or elsewhere.
13. The release of claims set forth herein does not release any claims of this Settling Plaintiff against the Non-Settling Defendants. The Settling Plaintiffs expressly reserve the right to pursue all their claims against the Non-Settling Defendants.
14. Exclusive jurisdiction is hereby retained over the parties to this Action for all matters relating to the settlement of this Action as provided in the Settlement Agreement, including the administration, interpretation, effectuation or enforcement of this Order and Judgment.
15. In the event this Order and Judgment does not become final, it shall be rendered null and void and shall be vacated, and in such event, all orders entered and releases delivered in connection herewith shall be null and void and any funds received by this Settling Plaintiff from the Settlement Fund shall be returned, with interest thereon, to the Trustee.
16. There is no just reason for delay in the entry of this Order and Judgment, and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
SO ORDERED: