Free Settlement Agreement - District Court of Colorado - Colorado

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EXHIBIT B

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00665-RPM DAVID HELLER, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. QUOVADX, INC., LORINE R. SWEENEY and GARY T. SCHERPING, Defendants. [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE EXHIBIT B

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This matter came before the Court for hearing pursuant to an Order of this Court, dated ______________, 2006, on the application of the Settling Parties for approval of the settlement set forth in the Stipulation of Settlement dated as of April 4, 2006 (the "Stipulation"). Due and adequate notice having been given of the settlement as required in said Order, and the Court having considered all papers filed and proceedings held herein and otherwise being fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. This Judgment incorporates by reference the definitions in the Stipulation, and all

terms used herein shall have the same meanings set forth in the Stipulation. 2. This Court has jurisdiction over the subject matter of the Action and over all parties to

the Action, including all Members of the Settlement Class. 3. Except as to any individual claim of those Persons (identified in Exhibit 1 attached

hereto) who have validly and timely requested exclusion from the Settlement Class, the Action and all claims contained therein, including all of the Released Claims, are dismissed with prejudice as to the Lead Plaintiff and the other Members of the Settlement Class, and as against each and all of the Released Persons. The parties are to bear their own costs, except as otherwise provided in the Stipulation. 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby

approves the settlement set forth in the Stipulation and finds that said settlement is, in all respects, fair, reasonable and adequate to, and is in the best interests of, the Lead Plaintiff, the Settlement Class and each of the Settlement Class Members. This Court further finds the settlement set forth in the Stipulation is the result of arm's-length negotiations between experienced counsel representing the interests of the Lead Plaintiff, the Settlement Class Members and the Defendants. Accordingly, the settlement embodied in the Stipulation is hereby approved in all respects and shall be -1-

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consummated in accordance with its terms and provisions. The Settling Parties are hereby directed to perform the terms of the Stipulation. 5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby

certifies, for purposes of effectuating this settlement, a Settlement Class of all Persons who purchased or acquired Quovadx common stock between October 22, 2003 and March 15, 2004, inclusive. Excluded from the Settlement Class are Defendants and their Related Parties. Also excluded from the Settlement Class are those Persons who timely and validly requested exclusion from the Settlement Class pursuant to the Notice of Pendency and Proposed Settlement of Class Action. 6. With respect to the Settlement Class, this Court finds for the purposes of effectuating

this settlement that (a) the Members of the Settlement Class are so numerous that joinder of all Settlement Class Members in the Action is impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over any individual questions; (c) the claims of the Lead Plaintiff are typical of the claims of the Settlement Class; (d) the Lead Plaintiff and Lead Counsel have fairly and adequately represented and protected the interests of all of the Settlement Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy, considering: (i) the interests of the Members of the Settlement Class in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by Members of the Settlement Class: (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum; and (iv) the difficulties likely to be encountered in the management of the Action. 7. Upon the Effective Date, the Lead Plaintiff and each of the Settlement Class

Members shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged all Released Claims against the Released Persons,

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whether or not such Settlement Class Member executes and delivers a Proof of Claim and Release form. 8. All Settlement Class Members are hereby forever barred and enjoined from

prosecuting the Released Claims against the Released Persons. 9. Upon the Effective Date hereof, each of the Released Persons shall be deemed to

have, and by operation of this Judgment shall have, fully, finally, and forever released, relinquished and discharged each and all of the Settlement Class Members and Lead Counsel from all claims (including Unknown Claims), arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of the Action or the Released Claims. 10. The distribution of the Notice of Pendency and Proposed Settlement of Class Action

and the publication of the Summary Notice as provided for in the Order Preliminarily Approving Settlement and Providing for Notice constituted the best notice practicable under the circumstances, including individual notice to all Members of the Settlement Class who could be identified through reasonable effort. Said notice provided the best notice practicable under the circumstances of those proceedings and of the matters set forth therein, including the proposed settlement set forth in the Stipulation, to all Persons entitled to such notice, and said notice fully satisfied the requirements of Federal Rule of Civil Procedure 23, the requirements of due process, and any other applicable law. 11. Any plan of allocation submitted by Lead Counsel or any order entered regarding the

attorneys' fee and expense application shall in no way disturb or affect this Final Judgment and shall be considered separate from this Final Judgment. 12. Neither the Stipulation nor the settlement contained therein, nor any act performed or

document executed pursuant to or in furtherance of the Stipulation or the settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of the Defendants or their Related Parties; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the -3-

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Defendants or their Related Parties in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal. Defendants and/or their Related Parties may file the Stipulation and/or the Judgment in any other action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim. 13. Without affecting the finality of this Judgment in any way, this Court hereby retains

continuing jurisdiction over (a) implementation of this settlement and any award or distribution of the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and determining applications for attorneys' fees and expenses in the Action; and (d) all parties hereto for the purpose of construing, enforcing and administering the Stipulation. 14. The Court finds that during the course of the Action, the Settling Parties and their

respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11. 15. In the event that the settlement does not become effective in accordance with the

terms of the Stipulation or the Effective Date does not occur, or in the event that the Settlement Fund, or any portion thereof, is returned to the Defendants, then this Judgment shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated and,

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in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation.

IT IS SO ORDERED. DATED: _________________________ THE HONORABLE RICHARD P. MATSCH UNITED STATES DISTRICT JUDGE Submitted by:

JOY ANN BULL JOY ANN BULL LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) Email: [email protected] JEFFREY W. LAWRENCE DENNIS J. HERMAN EX KANO S. SAMS II LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax) Email: [email protected] Email: [email protected] Email: [email protected] Lead Counsel for Plaintiffs
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