Opinion
MASTER FILE 02 Civ. 3288 (DLC), 03 Civ. 1785 (DLC).
November 3, 2005
FINAL ORDER AND JUDGMENT
WHEREAS, IQ Holdings, Inc., the plaintiff (the "Settling Plaintiff") in the above-captioned action (the "Action"), has asserted, in its Amended Complaint filed July 11, 2003 (the "Complaint"), certain claims against Scott D. Sullivan ("Sullivan") and other defendants named therein (the "Non-Settling Defendants"); and
WHEREAS, the Settling Plaintiff and Sullivan have reached an agreement intended to settle, compromise, and dismiss, on the merits and with prejudice, all claims asserted by the Settling Plaintiff against Sullivan (the "Settlement Agreement");
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. This Final 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 the Settling Plaintiff against Sullivan 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 Claims" means:
a. with respect to the Sullivan Releasees (as defined herein), the release by the 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) insecurities 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 Sullivan and (b) all claims asserted by or that could have been asserted by the Settling Plaintiff against the Sullivan Releasees in the Action; and
b. with respect to the Plaintiff Releasees (as defined herein), the release by Sullivan of any claims relating to the institution or prosecution of the Action.
4. "Sullivan Releasees" means Sullivan, 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 Sullivan Releasee or in which any Sullivan Releasee has or had a controlling interest and the parents, subsidiaries, divisions, affiliates, predecessors, successors, present and former employees, officers and directors, attorneys, accountants, insurers, assigns, and agents of each of them. The Sullivan Releasees shall not include any of the Non-Settling Defendants.
5. "Plaintiff Releasees" means the Settling Plaintiff and its respective present and former parents, subsidiaries, divisions, 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 any Plaintiff Releasee has or had a controlling interest or which is or was related to or affiliated with any Plaintiff Releasee.
6. "Released Parties" means:
a. with respect to Sullivan, the Sullivan Releasees; and
b. with respect to the Settling Plaintiff, the Plaintiff Releasees.
7. The Settling Plaintiff, its successors, and assigns, 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 Sullivan Releasees or from pursuing outside of this Action any claim against any of the Sullivan Releasees that arises from or relates to the facts alleged in the Complaint.
8. Sullivan, his successors, and assigns, 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 the 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 Final 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 in 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 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; and
d. construed as or received in evidence as an admission, concession, or presumption against the 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 Sullivan Releasees or any other claim against the Sullivan Releasees where the injury to the entity/individual is the entity's/individual's actual or threatened liability to the Settling Plaintiff, arising out of or related to the claims or allegations asserted by the 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 Sullivan could be sought, in an amount that is the greater of the total consideration paid by Sullivan to the Settling Plaintiff pursuant to the Settlement Agreement or the proportionate share of Sullivan's fault as determined at trial.
12. Subject to this Final Order and Judgment becoming final, the Sullivan 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 Sullivan is Sullivan's actual or threatened liability to the Settling Plaintiff, arising out of or related to the claims or allegations asserted by the 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 the Settling Plaintiff 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 Final Order and Judgment.
15. In the event this Final 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 the Settling Plaintiff from the Settlement Fund shall be returned, with interest thereon, to the counsel for Sullivan.
16. There is no just reason for delay in the entry of this Final 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.