3:99-cv-01244
Case Document 118 Filed 10/14/2003 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
FRANK GABLE, on Behalf of Himself and all Persons Similarly Situated, Plaintiff
V.
CIVIL ACTION NO.: 3-99 CV 1244-
1'
M
NO-R' rEr,,N D;SMICT OFFIEXAS 7_ -7 D OCT 1 4 203 -B.V
HORIZON PHARMACIES, INC., RICK D. MCCORD, SY S. SHAHID, JOHN N. STOGNER, and CHARLIE K. HERR, Defendants
-
CLERVVS.DZSTR1CTCOURT
ORDER AND FINAL JUDGMENT
On the 14th day of October, 2003, a hearing having been held before this Court to determine: (1) whether the terms and conditions of the Stipulation and Agreement of Settlement dated April 8, 2003, (the "Stipulation") is fair, reasonable and adequate for the settlement of all claims asserted by the Class in the Complaint in this action, including the release of the Defendants and the Released Parties, and should be approved; (2) whether judgment should be entered dismissing the Complaint on the merits and with prejudice in favor of Defendants and as against all persons or entities who are members of the Class herein who have not requested
rke's" b,CA : n 917-9 - 314
of
.
exclusion therefrom; (3) whether to approve the Plan of Allocation/as a fair and reasonable method to allocate the settlement proceeds among the members of the Class; and (4) whether, how, and in what amount, to award Lead Counsel's application to allocate fees and for reimbursement of expenses. The Court, having considered all matters submitted to it at the hearing and otherwise, and it appearing that a notice of the hearing substantially in the form approved by the Court was mailed to all persons or entities reasonably identifiable, who purchased or otherwise acquired the common stock of Horizon Pharmacies, Inc. ("Horizon")
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during the Class Period (August 14, 1996 through March 3, 1999), except those persons or entities excluded from the definition of the Class, as shown by the records of Horizon's transfer agent, at the respective addresses set forth in such records, and that a summary notice of the hearing substantially in the form approved by the Court was published in the national edition of Investor's Business Daily pursuant to the specifications of the Court; and the Court having considered and determined the fairness and reasonableness of the award of attorneys' fees and expenses requested; and all capitalized terms used herein having the meanings as set forth and defined in the Stipulation; NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Court has jurisdiction over the subject matter of the Action, the Plaintiffs, all
Class Members, and Defendants. 2. Pursuant to Rule 23 of the Federal Rules of Civil Procedure this Court hereby
reaffirms certification of this action as a class action on behalf of all persons who purchased or otherwise acquired the common stock of Horizon during the Class Period. Excluded from the Class are the Defendants herein, members of the immediate family of each of the individual Original Defendants, any entity in which any excluded person has a controlling interest, and the heirs of any excluded person. Also excluded from the Class are the persons and/or entities who requested exclusion from the Class. 3. Notice of the pendency of this Action as a class action and of the proposed
Settlement was given to all Class Members who could be identified with reasonable effort. The form and method of notifying the Class of the pendency of the action as a class action and of the terms and conditions of the proposed Settlement met the requirements of Rule 23 of the Federal Rules of Civil Procedure, Title I of the Securities Act of 1933, 15 U.S.C. 77z-l(a)(7) as amended by the Private Securities Litigation Reform Act of 1995, due process, and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto.
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4.
The Settlement is approved as fair, reasonable and adequate, and the Class
Members and the parties are directed to consummate the Settlement in accordance with the terms and provisions of the Stipulation. 5. 6. The Complaint is hereby dismissed with prejudice. Members of the Class and the successors and assigns of any of them, are hereby
permanently barred and enjoined from instituting, commencing or prosecuting, either directly or in any other capacity, any and all claims, rights or causes of action or liabilities whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including both known claims and unknown claims, that have been or could have been asserted in any forum by the Class Members or any of them against any of the Released Parties which arise out of or relate in any way to the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth, referred to or that could have been asserted in the Complaint relating to the purchase of shares of the common stock of Horizon during the Class Period and any and all claims arising out of, relating to, or in connection with the settlement or resolution of this Action, other than claims to enforce the Settlement or any of its terms (the "Settled Claims") against the Defendants, their past or present subsidiaries, affiliates, parents, successors and predecessors, officers, directors, shareholders, agents, employees, attorneys, insurers, advisors, and investment advisors, auditors, accountants and any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which related is to or affiliated with any of them, and the legal representatives, heirs, successors in interest or assigns of the Defendants (the "Released Parties"). The Settled Claims are hereby compromised, settled, released, discharged and dismissed as against the Released Parties on the merits and with prejudice by virtue of the proceedings herein and this Order and Final Judgment. 7. The Defendants and the successors and assigns of any of them, are hereby
permanently barred and enjoined from instituting, commencing or prosecuting, either directly or in any other capacity, any and all claims, rights or causes of action or liabilities whatsoever,
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whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including both known claims and unknown claims, that have been or could have been asserted in the Action or any forum by the Defendants or any of them or the successors and assigns of any of them against any of the Plaintiffs, Class Members or their attorneys, which arise out of or relate in any way to the institution, prosecution, or settlement of the Action (the "Settled Defendants' Claims") against any of the Plaintiffs, Class Members or their attorneys. The Settled Defendants' Claims are hereby compromised, settled, released, discharged and dismissed on the merits and with prejudice by virtue of the proceedings herein and this Order and Final Judgment. 8. Neither this Order and Final Judgment, the Stipulation, 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 or received against any Defendant or against the Plaintiffs or the Class as evidence of or construed as or deemed to be evidence of any presumption, concession, or admission by any of the Defendants or by any of the Plaintiffs or the Class with respect to the truth of any fact alleged by Plaintiffs or the validity of any claim that had been or could have been asserted in the Action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the Action or in any litigation, or of any liability, negligence, fault, or wrongdoing of the Original Defendants; b. offered or received against the Defendants as evidence of a presumption, concession or admission of any fact, misrepresentation or omission with respect to any statement or written document approved or made by any of them, or against the Plaintiffs and the Class as evidence of any infirmity in the claims of Plaintiffs and the Class;
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C.
offered or received against the Defendants or against the Plaintiffs or the Class as evidence of a presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the parties to the Stipulation, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; provided, however, that Defendants may refer to the Stipulation to effectuate the liability protection granted them thereunder;
d.
construed against the Defendants or the Plaintiffs and the Class as an admission or concession that the consideration to be given hereunder represen...