Free Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa Civil Action No. 02-cv-02232-PSF-PAC ROBERT STUDER, NICHOLAS IMPERATO and PAUL KINNEY, derivatively on behalf of eVISION INTERNATIONAL, INC., SAMY SAMY, and PHILIP CALDERONE, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. FAI CHAN, in his individual and corporate capacities, TONG WAN CHAN, in his individual and corporate capacities, ROBERT TRAPP, in his individual and corporate capacities, KWOK JEN FONG, in his individual and corporate capacities, GARY COOK, in his individual and corporate capacities, JEFFREY BUSCH, in his individual and corporate capacities, ROBERT JEFFERS, JR., in his individual and corporate capacities, DORSEY & WHITNEY LLP, a Minnesota limited liability partnership, and EHRHARDT, KEEFE, STEINER & HOTTMAN, P.C. Defendants, and eVISION INTERNATIONAL, INC., a Colorado corporation, Nominal Defendant.

ORDER ON SETTLEMENT AND ENTRY OF FINAL JUDGMENT

This matter is before the Court on The Parties' Joint Motion for Final Approval of Settlements (Dkt. # 434), filed October 28, 2005; Plaintiffs' Motion and Memorandum of Law of Derivative Plaintiffs and Class Plaintiffs for Final Approval of Settlements (Dkt. # 435), filed October 28, 2005; and Plaintiffs' Motion to Approve Award of Plaintiffs'

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Counsel Attorneys' Fees and Reimbursement of Expenses (Dkt. # 436), filed October 28, 2005. I. DERIVATIVE SETTLEMENT WITH DEFENDANTS DORSEY AND EKS&H On May 20, 2005, Derivative Plaintiffs Robert Studer and Nicholas Imperato (" Plaintiffs" on behalf of themselves and derivatively on behalf of eVision International, ), Inc. (" eVision" and " ), Settling Defendants"Dorsey & Whitney LLP (" Dorsey" and ) Ehrhardt Keefe Steiner & Hottman, P. C. (" EKS&H" (collectively, the " ) Settling Parties" ) entered into a Stipulation and Settlement Agreement (" Settlement Agreement"or " Agreement" 1 The Settling Parties previously submitted the Settlement Agreement to ). this Court for preliminary approval of the partial settlement provided therein (" the Settlement" On August 10, 2005, this Court entered an Order Granting Preliminary ). Approval to Partial Settlement (" Preliminary Approval Order" On September 13 , ). 2005, Plaintiffs ' Counsel filed a declaration confirming the timely distribution of the Settlement Notice required by the Preliminary Approval Order. Now, the matter having come before the Court for a Fairness Hearing on November 9 2005, on the Settling Parties' request for entry of an order granting final approval to the proposed Settlement and for entry of final judgment in this matter, the Court finds and concludes that it has jurisdiction over all parties and the subject matter and finds, concludes, orders, and adjudges as follows:

For purposes of this Order, the Court adopts the Definitions set forth in the Settlement Agreement, a copy of which is attached hereto as Exhibit 1.

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A.

Appointment of eVision' Shareholder Representatives s

The Settlement Agreement provides for the settlement of Plaintiffs' shareholderderivative claims against Settling Defendants that are the subject of this litigation. As part of the Settlement Agreement, Settling Defendants have conditionally withdrawn any objections to Plaintiffs' ability to fairly and adequately represent eVision s interests in the shareholder-derivative litigation. In the Preliminary Approval Order, the Court granted conditional approval to Plaintiffs as the shareholder representatives of eVision. Having considered all submissions timely filed with the Court pursuant to the Preliminary Approval Order, the Court now finds and concludes that the provisions of the Preliminary Approval Order appointing Plaintiffs as the shareholder representatives of eVision and appointing Strategic Claims Services, Inc. as the Settlement Administrator should be, and hereby are, confirmed in all respects as a final order of the Court for purposes implementing the Settlement provided for in the Settlement Agreement and entering final judgment in this action. Plaintiffs and their attorneys,2 therefore, are authorized to act on behalf of eVision with respect to all acts required or contemplated by the Settlement Agreement. B. Notice to eVision' Shareholders s

The Preliminary Approval Order approved (1) the form and content of the Settlement Notice to be provided to eVision s Shareholders; (2) the form and content of the Publication Notice to be provided to eVision s Shareholders who might not receive
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Plaintiffs' attorneys are the law firms of Lilley & Garcia, LLP, by Charles W. Lilley and Karen Cody-Hopkins, and Jacob A. Goldberg, Esq. LLC, by Jacob A. Goldberg (collectively, " Plaintiffs' Counsel" ).

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the mailed Settlement Notice; and (3) the plan specified in the Settlement Agreement for distributing the Settlement Notice and the Publication Notice. The Settlement Notice and Publication Notice fairly, accurately, and reasonably informed eVision' s Shareholders of (1) appropriate information about the nature and history of this litigation, Plaintiffs' claims, Settling Defendants' defenses, and the essential terms of the Settlement Agreement; (2) appropriate information about how to obtain additional information regarding this litigation and the Settlement Agreement; and (3) appropriate information about how to challenge the Settlement, object to Plaintiffs' Counsel' s Application for an award of attorneys' fees, reimbursement of costs, and special incentive awards to Plaintiffs, or appear and be heard at the Fairness Hearing. The Settlement Notice and Publication Notice also fairly and adequately informed eVision' s Shareholders that failure to comply with the procedures and the deadline for filing Objections would constitute a waiver of any right to have their Objection considered at the Fairness Hearing, to otherwise contest approval of the Settlement, or to appeal from any order or judgment entered by the Court in connection with the Settlement.

The notice plan specified in the Preliminary Approval Order for distributing the Settlement Notice has been implemented and has provided to eVision' Shareholders s reasonable actual notice of the Settlement. There is no additional mode of distribution that would be reasonably likely to notify eVision' Shareholders who may not already s have received actual notice pursuant to that distribution plan. Plaintiffs' Counsel has caused the Settlement Administrator to mail, by first-class United States Mail, to all 4

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eVision Shareholders whose addresses reasonably could be identified in e Vision' s (or eVision' transfer agent's) records a copy of the Settlement Notice. Before the s Settlement Administrator mailed such copies of the Settlement Notice, the Settlement Administrator obtained address updates utilizing a National Change of Address (" NCOA" database. In mailing such notices, the Settlement Administrator ) has utilized any updated mailing addresses thus obtained. A copy of the Settlement Notice also has been linked to the Settlement Administrator s Internet website www.strategicclaims.net. Further, Plaintiffs' Counsel have released, or have caused to be released, over P.R. Newswire, a nationwide news wire service, a copy of the Publication Notice. Pursuant to the Preliminary Approval Order, Plaintiffs' Counsel have filed with the Court a declaration of Plaintiffs' Counsel' compliance with the foregoing notice s requirements. Based on the foregoing, the Court hereby finds and concludes that eVision Shareholders have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of due process and the Federal Rules of Civil Procedure. C. Final Approval of the Settlement

In the Preliminary Approval Order, the Court found that the Settlement Agreement appeared to be in good faith, fair, reasonable, and adequate to eVision and fell within the appropriate range of possible approval. In essence, the Settlement requires Settling Defendants to pay to eVision $334,500 in cash (" Cash Settlement the 5

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Payment" less any Court-ordered attorneys' ), fees and costs to Plaintiffs' Counsel, special incentive awards to Plaintiffs, and settlement Administration Expenses to the Settlement Administrator, and accruing interest from the date of funding until distribution to eVision or such other persons as the Court directs. The Settlement requires Dorsey to contribute $200,000 to the Cash Settlement Payment, and EKS&H to contribute $134,500 to the Cash Settlement Payment. The Settlement Agreement also requires that the Cash Settlement Payment be deposited and maintained in an escrow, interest-bearing account, subject only to deductions or expenditures that are expressly provided in the Settlement Agreement and approved or ordered by the Court. Further, the Settlement Agreement requires that Dorsey release its claims for any sum eVision owes to Dorsey for past professional services rendered to eVision by Dorsey. The Settlement Agreement provides for these benefits to eVision even though Dorsey and ESK&H at all time have disputed, and continue to dispute, Plaintiffs' derivative allegations in this lawsuit and have denied, and continue to deny, any liability for any of the claims that have been or could have been alleged by Plaintiffs or eVision. In exchange for the consideration to be paid or given by Settling Defendants, Plaintiffs and eVision will fully discharge and release Settling Defendants and the other Releasees from any and all claims Plaintiffs or eVision have or might in the future have against Dorsey, EKS&H, or any of the other Releasees, relating to, arising out of, or in connection with the facts and circumstances alleged in the Action. In determining whether to grant final approval to the Settlement, the Court has taken into account, among other things, (1) the defenses asserted by Settling 6

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Defendants in the motions to dismiss they have filed in response to Plaintiffs' pleadings, (2) the risk to Plaintiffs and eVision that Dorsey or EKS&H, or both of Settling Defendants, would successfully defend against the claims arising out of the facts and legal theories pled and asserted in the case, whether litigated by Plaintiffs on behalf of eVision or by eVision itself, and (3) the length of time and amount of money and other resources that would be required for Plaintiffs or e Vision to obtain a final judgment through one or more trials and appeals. Moreover, the Settling Parties have reached the Settlement after vigorous litigation, significant investigation and discovery conducted by the Settling Parties and their respective counsel, and an arm' s-length negotiation process, and is not in any way the product of collusion. Having considered the foregoing, the number of e Vision Shareholders who have commented on the Settlement, the level of opposition to the Settlement, the strength and weaknesses of the claims that have been and could be asserted by or on behalf of Plaintiffs and eVision, the strengths and weaknesses of the defenses that have been and could be asserted by Dorsey and EKS&H, the damages and other relief that have been and could be claimed on behalf of Plaintiffs and eVision, the value of the Settlement, and the complexity, length, expense, and uncertain outcome of continued litigation, and there being no legitimate suggestion of improper collusion among the Settling Parties, the Court finds that the Settlement is fair, reasonable, and adequate to Plaintiffs and eVision. The Court further finds that the releases to be provided to the Settling Defendants and other Releasees by and on behalf of Plaintiffs 7

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and eVision are being given in good faith for the purposes of Colorado Revised Statutes (" C.R.S." § 13-50.5-105. Still further, the Court finds that the releases to be ) provided to Plaintiffs and eVision by Settling Defendants are being given in good faith. Accordingly, the Court hereby grants final approval pursuant to F.R.Civ.P. 23.1 and other applicable laws, to the Settlement Agreement and enters this Judgment implementing its terms. The Court hereby adopts and incorporates the terms of the Settlement Agreement for the purposes of this Order and Judgment. D. Administration of the Settlement

Now, for the purposes of consummating the administration of the Settlement, the Court orders as follows: 1. Settling Defendants'Rights In or To the Settlement Fund The Settling Parties have executed, and are bound by each of the terms and conditions of, an Escrow Agreement relating to the handling of the Cash Settlement Payment, Settlement Fund, and Net Settlement Fund. Plaintiffs' Counsel is hereby authorized to execute such transactions as are consistent with the terms of that Escrow Agreement, the Settlement Agreement, and this Order and Judgment. All funds held by the Escrow Agent shall be deemed and considered to be in custodia legis until such time as the funds shall be distributed to eVision, the Settlement Administrator, Plaintiffs' Counsel, Plaintiffs, or such other Persons as the Court directs pursuant to further order. If, after the entry by this Court of this Order and Judgment, no notice of appeal of this Order and Judgment has been filed, the time provided for in F.R.App.P. 4 to take any such appeal has expired, and any right to take an appeal from this Order and 8

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Judgment has been waived, or if each such appeal has been finally adjudicated, this Order and Judgment have been upheld in all respects by each such final adjudication, and the Effective Date has occurred, the Settling Defendants' rights in or to the Settlement Fund shall be extinguished, except as expressly provided in paragraph 4 of the Settlement Agreement. All interest that has accrued on the Cash Settlement Payment, whether accrued before or after the Effective Date, shall become part of the Settlement Fund and be distributed pursuant to this Order and Judgment and any further order of the Court. If for any reason the Effective Date fails to occur, however, Dorsey and EKS&H shall receive a refund of their respective share of the Cash Settlement Payment, plus any interest that has accrued on their share of the Cash Settlement Payment after the Cash Settlement Payment was deposited with the Escrow Agent, but less any Administration Expenses that Settling Defendants previously paid up to the amount of $6,250, individually, and $12,500, collectively, as provided in paragraph 32 of the Settlement Agreement. Such refund shall be paid to Dorsey and EKS&H, respectively, within 21 days after Plaintiffs' Counsel have received Dorsey' or EKS&H' respective s s termination notice pursuant to paragraph 58 of the Settlement Agreement. 2. Distribution of Settlement Fund Plaintiffs' Counsel, subject to the supervision, direction, and approval of the Court as provided in this Order and Judgment, shall administer and oversee the distribution of the Settlement Fund to eVision, Plaintiffs, Plaintiffs' Counsel , the Settlement Administrator, and such other Persons who are approved by further order 9

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of the Court to receive payment. Until the Effective Date occurs, any withdrawal from the Settlement Fund may be made only with the joint authorization and signatures of Charles W. Lilley, Michael T. Williams, and Carla B. Minckley or Thomas D. Birge. After the Effective Date, withdrawals from the Settlement Fund shall be made only pursuant to the terms of this Order and any further order of the Court and shall be made under the signature of Charles W. Lilley. As soon as reasonably practicable after the Effective Date, the Settlement Fund, less any taxes on the income thereof, shall be used by Plaintiffs' Counsel to pay (a) Plaintiffs' Counsel' award of attorneys ' fees and reimbursement of costs, in the s amount determined by this Order or by separate order of the Court; (b) Plaintiffs' special incentive awards, in the amounts determined by this Order or by separate order of the Court; (c) any previously unpaid Administration Expenses; and (d) the Escrow Agent's expenses, if any. After the payments from the Settlement Fund have been made pursuant to this paragraph, the Net Settlement Fund shall continue to be held in escrow by the Escrow Agent until such time as the Court orders the Net Settlement Fund paid to e Vision or such other Persons as the Court directs. 3. Declaration of Payments to Plaintiffs, Plaintiffs'Counsel, the Settlement Administrator, and eVision Plaintiffs' Counsel shall, within 30 days after the payment of all distributions from the Settlement Fund pursuant to section B.2 above, (a) provide to all Defendants' respective counsel a statement summarizing the date and amount of all such payments made from the Settlement Fund (the " Final Accounting" and (b) promptly after the );

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submission of the Final Accounting to Defendants' respective counsel , file with the Court a declaration under penalty to perjury that Plaintiffs' Counsel has submitted to all Defendants ' counsel the required Final Accounting. E. Release, Covenant not to Sue, Settlement Contribution Bar, and Effect of Settlement Agreement 1. Releases In consideration of the terms of the Settlement Agreement, Plaintiffs and eVision are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged as of the Effective Date, all of the following claims they have or may have against (a) Dorsey, together with its predecessors and successors in interest, and its present and former parents, subsidiaries, affiliates, and assigns, whether foreign or domestic; (b) EKS&H, together with its predecessors and successors in interest, and its present and former parents, subsidiaries, affiliates, and assigns, whether foreign or domestic; and (c) the respective past, present, and future partners, members, owners, managers, principals, associates, shareholders, officers, directors, agents, representatives, trustees, administrators, fiduciaries, subrogees, executors servants, employees, attorneys, accountants, insurers, and reinsurers, whether foreign or domestic, of Dorsey or EKS&H, including, but not limited to, Thomas S. Smith, Kevin J. Kanouff, Camico Insurance, Attorneys' Liability Assurance Society, Inc., and any entity controlling, controlled by, or under common control of any of the foregoing (collectively, " Releasees" ):

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All claims, actions, causes of action, administrative claims, demands, debts, damages, costs, attorney s fees, obligations, judgments, expenses, compensation, or liabilities, in law or in equity, whether now known or unknown, contingent or absolute, that Plaintiffs, eVision, or any other Person represented by Plaintiffs now has or, absent this Settlement Agreement, may in the future have had, against any of the Releasees, by reason of any act, omission, harm, matter, cause, or event whatsoever that has occurred at any time up to and including the Effective Date has been alleged or could have been alleged in the Action, and relates to any act, omission, breach, defect, harm, matter, cause, or event whatsoever alleged in any pleading in the Action or arising out of the initiation, defense, or settlement of the Action (" Released Claims" ). The Released Claims shall not include claims to enforce any obligation expressly assumed by any of the Settling Parties under this Agreement. In consideration of the terms of the Settlement Agreement, Dorsey and EKS&H are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged as of the Effective Date, all of the following claims they have or may have against Plaintiffs, Plaintiffs' Counsel, eVision, and all agents, consultants, and experts employed by Plaintiffs or Plaintiffs' Counsel in connection with this Action as against Dorsey and EKS&H only: All claims arising out of, referring, or relating to the institution, prosecution, or resolution of this Action, except for Settling Defendants ' respective rights to enforce the Agreement or to recover, in the event the Settlement is terminated any amounts paid by Dorsey or EKS&H under the Settlement. The claims released by Dorsey also shall include claims by Dorsey for any sum eVision owes to Dorsey for past professional services rendered to eVision by Dorsey. The

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claims released by EKS&H, however, do not include claims by EKS&H for any amount e Vision owes to EKS&H for any past, present, or future professional services rendered or to be rendered to eVision by EKS&H. Notwithstanding anything to the contrary in this Order, the Released Claims do not include any claims asserted in the Action against any Defendant other than EKS&H or Dorsey. 2. Covenant Not to Sue In consideration of the terms of the Settlement Agreement, Plaintiffs and eVision are hereby found, deemed, and adjudged, as of the Effective Date, to have (1) covenanted and agreed that neither Plaintiffs nor eVision, nor anyone authorized to act on behalf of any of them, will commence, authorize, or accept any benefit from any judicial or administrative action or proceeding, other than as expressly provided for in the Settlement Agreement, against Releasees or any of them in either their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by any Releasee in connection with the Released Claims; (2) waived and disclaimed any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by Plaintiffs, eVision, or on either Plaintiffs' eVision' behalf; or s and (3) agreed that the Settlement Agreement shall be a complete bar to any such action or proceeding. 3. Settlement Agreement as Exclusive Remedy for Released Claims Upon the entry of this Order and Judgment, (1) enforcement of the Settlement Agreement shall be the exclusive remedy for the Settling Parties with respect to all 13

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Released Claims; and (2) the Releasees shall not be subject to liability or expense of any kind to Plaintiffs or eVision, all of whom shall be permanently barred and enjoined from initiating, asserting, or prosecuting against any of the Releasees, in any federal or state court or tribunal, the Released Claims. 4. Settlement Contribution Bar With respect to the claims that Plaintiffs have asserted or may attempt to assert against any Nonsettling Defendant or any other Person relating to or arising out of the facts and circumstances that are alleged or could have been alleged in the Action, Plaintiffs and eVision are hereby found, deemed, and adjudged to have fully discharged, credited, and satisfied against the total recovery from Nonsettling Defendants and any other Person that fraction or percentage or the total claim or damages that may be determined by the finder of fact to have been attributable to the fault or negligence of either Dorsey or EKS&H, or both of them, all pursuant to the provisions of C.R.S. § 13-50.5-105(1). Pursuant to this settlement contribution bar and C.R.S. § 13-50.5-105(1)(b), Dorsey and EKS&H shall obtain a dismissal of any claims brought in the future by any Nonsettling Defendant or other Person for contribution or indemnification where the damages sought by the claiming party are based in whole or in part on the claiming party' liability, directly or indirectly, to Plaintiffs or eVision. s Pursuant to C.R.S. § 13-50.5-105(1)(a), the aggregate claim against the Nonsettling Defendants and any other alleged tortfeasor shall be reduced to the extent of any degree or percentage of fault or negligence attributable by the finder of fact to either EKS&H or Dorsey, or both of them. Dorsey, EKS&H, and the other Releases are 14

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hereby barred from bringing any claims for contribution against any of the Nonsettling Defendants pursuant to C.R.S. § 13-50.5-102(4). 5. Effect of a Final Judicial Determination of Invalidity or Unenforceability If, after entry by this Court of this Order and Judgment, a notice of appeal of this Order and Judgment is timely filed by any party, Objector, or other person or entity, and if an appellate court makes a final determination that this Order and Judgment is in any respect invalid, contrary to law, or unenforceable, the Settling Parties' stipulation to the terms of the Settlement Agreement shall be null and void, the Settlement Agreement shall be null and void, and the Settling Parties shall return to their respective positions in this case as those positions existed immediately as of April 1, 2005, unless both Settling Defendants and Plaintiffs elect to exercise the waiver options provided in the Settlement Agreement. F. No Admission of Liability

The Settling Parties entered into the Settlement Agreement solely for the purpose of compromising and settling disputed claims. Nothing contained in the Settlement Agreement, the Preliminary Approval Order, or this Order shall be construed, deemed, or offered as an admission or concession by any of the Settling Parties for any purpose in any action or proceeding of any kind. In entering this Order with this provision and other limiting provisions this Court specifically refers to and invokes the Full Faith and Credit Clause of the United States Constitution and the

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doctrine of comity and requests that any court in any other jurisdiction reviewing, construing, or applying this Order implement and enforce each such limiting provision. G. Jurisdiction of the Court

Without affecting the finality of this Order and Judgment in any way, the Court reserves jurisdiction over (1) the implementation of the Settlement and payment of any attorneys' fees, costs, and special incentive awards; (2) the disposition of the Cash Settlement Payment Settlement Fund, and Net Settlement Fund; (3) the Action; (4) the Settling Parties for the purpose of administering the Settlement Agreement; and (5) Plaintiffs' claims in the Action against the Nonsettling Defendants. H. Entry of Final Judgment

The Court hereby orders the dismissal with prejudice of all claims alleged against Dorsey and EKS&H in Plaintiffs' pleadings in this Action. The Court further orders the entry of, and enters, this Judgment, incorporating the provisions of this Order, including the releases and covenant not to sue, on all claims, counts, and causes of action alleged in this Action by Plaintiffs on behalf of eVision. In entering this Judgment, the Court specifically refers to and invokes the Full Faith and Credit Clause of the United States Constitution and the doctrine of comity and requests that any court in any other jurisdiction reviewing construing or applying this Judgment implement and enforce its terms in their entirety. The Court finds that this Order and Judgment is final as to the Settling Parties and, there being no just reason for delay, the Clerk is directed, pursuant to F.R.Civ.P. 54(b), to enter final judgment as the claims asserted against Dorsey and EKS&H. 16

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II.

DERIVATIVE SETTLEMENT WITH EVISION MANAGEMENT DEFENDANTS AND CLASS ACTION SETTLEMENT On July 1, 2005, Derivative Plaintiffs Robert Studer and Nicholas Imperato and

Class Plaintiffs Samy Samy and Phillip Calderone (" Plaintiffs" on behalf of themselves ), and derivatively on behalf of eVision International, Inc. (" eVision" and on behalf of a ) Class of persons, consisting of all legal or beneficial holders of e Vision' Convertible s Series B Preferred Stock on November 28, 2001 , and on the dates eVision declared and paid dividends on such Preferred Stock in the years 2000, 2001, and 2002, and eVision and its predecessors successors and assigns, and the " eVision Management Defendants"consisting of Fai Chan, Tong Wan Chan, Kwok Jen Fong, Robert Trapp, Gary Cook, Robert Jeffers, Jr., and Jeffrey Busch (together with Plaintiffs and eVision " Settling Parties" entered into a Stipulation and Settlement Agreement (" ) Settlement Agreement"or "Agreement" 3 The Settling Parties previously submitted the Settlement ). Agreement to this Court for preliminary approval of the partial settlement provided therein ("the Settlement"). On August 9, 2005, this Court entered an Order Granting Preliminary Approval to Partial Settlement (" Preliminary Approval Order" On ). September 13, 2005, Plaintiffs' Counsel filed a declaration confirming the timely distribution of the Settlement Notices required by the Preliminary Approval Order. Now, the matter having come before the Court for a Fairness Hearing on November 9, 2005, on the Settling Parties request for entry of an order granting final approval to the proposed Settlement and for entry of final judgment in this matter, the Court finds and
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For purposes of this Order and Judgment, the Court adopts the Definitions set forth in the Settlement Agreement, a copy of which is attached hereto as Exhibit 1.

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concludes that it has jurisdiction over all parties and the subject matter and finds, concludes, orders, and adjudges as follows: A. Appointment of eVision' Shareholder Representatives s

The Settlement Agreement provides for the settlement of Plaintiffs' shareholderderivative claims against the eVision Management Defendants that are the subject of this litigation. As part of the Settlement Agreement, eVision and the eVision Management Defendants have conditionally withdrawn any objections to Plaintiffs' ability to fairly and adequately represent eVision' interests in the shareholders derivative litigation. In the Preliminary Approval Order, the Court granted conditional approval to Plaintiffs as the shareholder representatives of eVision. Having considered all submissions timely filed with the Court pursuant to the Preliminary Approval Order, the Court now finds and concludes that the provisions of the Preliminary Approval Order appointing Plaintiffs as the shareholder representatives of eVision and appointing Strategic Claims Services, Inc. as the Settlement Administrator should be, and hereby are, confirmed in all respects as a final order of the Court for purposes implementing the Settlement provided for in the Settlement Agreement and entering final judgment in this action. Plaintiffs and their attorneys, therefore, are authorized to act on behalf of eVision with respect to all acts required or contemplated by the Settlement Agreement. B. Class Certification

The Class certified and approved by the Court for the purposes of settlement (" Settlement Class" consists of all legal or beneficial holders of eVision' Convertible ) s 18

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Series B- 1 Preferred Stock on November 28, 2001, and on the dates eVision declared and paid dividends on such Preferred Stock in the years 2000, 2001, and 2002. In accordance with this Court' s Preliminary Approval Order, and as detailed below, Plaintiffs' Counsel caused Notice to be sent to each member of the Class by First Class Mail. C. Notice to eVision' Shareholders s

For purposes of the Derivative Claims, the Preliminary Approval Order approved (1) the form and content of the Settlement Notice to be provided to eVision' s Shareholders; (2) the form and content of the Publication Notice to be provided to eVision' Shareholders who might not receive the mailed Settlement Notice; and (3) the s plan specified in the Settlement Agreement for distributing the Settlement Notice and the Publication Notice. The Settlement Notice and Publication Notice fairly, accurately, and reasonably informed eVision' Shareholders of (1) appropriate information about s the nature and history of this litigation, the Derivative Claims, Defendants' respective defenses, and the essential terms of the Settlement Agreement; (2) appropriate information about how to obtain additional information regarding this litigation and the Settlement Agreement; and (3) appropriate information about how to challenge the Settlement, object to Plaintiffs' Counsel' Application for an award of attorneys' s fees, reimbursement of costs, and special awards to Derivative Plaintiffs, or appear and be heard at the Fairness Hearing. The Settlement Notice and Publication Notice also fairly and adequately informed eVision' Shareholders that failure to comply with the s procedures and the deadline for filing Objections would constitute a waiver of any right 19

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to have their Objection considered at the Fairness Hearing, to otherwise contest approval of the Settlement, or to appeal from any order or judgment entered by the Court in connection with the Settlement. The notice plan specified in the Preliminary Approval Order for distributing the Settlement Notice has been implemented and has provided to eVision' Shareholders s reasonable actual notice of the Settlement. There is no additional mode of distribution that would be reasonably likely to notify eVision' Shareholders who may not already s have received actual notice pursuant to that distribution plan. Plaintiffs' Counsel has caused the Settlement Administrator to mail, by first-class United States Mail, to all eVision Shareholders whose addresses reasonably could be identified in eVision' s (or eVision' transfer agent's) records a copy of the Settlement Notice. Before the s Settlement Administrator mailed such copies of the Settlement Notice, the Settlement Administrator obtained address updates utilizing a National Change of Address (" NCOA" database. In mailing such notices, the Settlement Administrator has utilized ) any updated mailing addresses thus obtained. A copy of the Settlement Notice also has been linked to the Settlement Administrator' Internet website, s www.strategicclaims.net. Further, Plaintiffs' Counsel have released, or have caused to be released, over P.R. Newswire, a nationwide news wire service, a copy of the Publication Notice. Pursuant to the Preliminary Approval Order, Plaintiffs' Counsel have filed with the Court a declaration of Plaintiffs' Counsel' compliance with the foregoing notice s requirements. 20

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Based on the foregoing, the Court hereby finds and concludes that eVision Shareholders have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of due process and the Federal Rules of Civil Procedure. Further, with respect to the Class Claims, the Preliminary Approval Order approved (1) the form and content of the Class Settlement Notice to be provided to eVision' Shareholders; and (2) the plan specified in the Settlement Agreement for s distributing the Class Settlement Notice. The Class Settlement Notice fairly, accurately, and reasonably informed members of the Class of (1) appropriate information about the nature and history of this litigation, the Class Claims, Settling Defendants' defenses , and the essential terms of the Settlement Agreement; and (2) appropriate information about how to obtain additional information regarding this litigation and the Settlement Agreement. The Class Settlement Notice also fairly and adequately informed members of the Class that failure to comply with the procedures and the deadline for filing Objections thereto would constitute a waiver of any right to have their Objection considered at the Fairness Hearing, to otherwise contest approval of the Settlement or to appeal from any order or judgment entered by the Court in connection with the Settlement. The notice plan to the Class as specified in the Preliminary Approval Order for distributing the Settlement Notice has been implemented and has provided to members of the Class reasonable actual notice of the Settlement. There is no additional mode of distribution that would be reasonably likely to notify members of the Class who may not 21

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already have received actual notice pursuant to that distribution plan. Plaintiffs' Counsel has caused the Settlement Administrator to mail, by first-class United States Mail, to all members of the Class whose addresses reasonably could be identified in eVision' (or eVision' transfer agent's) records a copy of the Settlement Notice. s s Before the Settlement Administrator mailed such copies of the Settlement Notice, the Settlement Administrator obtained address updates utilizing a National Change of Address (" NCOA" database. In mailing such notices, the Settlement Administrator ) has utilized any updated mailing addresses thus obtained. A copy of the Settlement Notice also has been linked to the Settlement Administrator' Internet website s www.strategicclaims.net. Pursuant to the Preliminary Approval Order, Plaintiffs' Counsel have filed with the Court a declaration of Plaintiffs' Counsel' compliance with the foregoing notice s requirements. Based on the foregoing, the Court hereby finds and concludes that members of the Class have been provided the best notice practicable of the Settlement and that such notice satisfies all requirements of due process and the Federal Rules of Civil Procedure. D. Final Approval of the Settlement

In the Preliminary Approval Order, the Court found that the Settlement Agreement appeared to be in good faith, fair, reasonable, and adequate to eVision and, separately to members of the Class, and fell within the appropriate range of possible approval. With respect to the Derivative Claims, the Settlement requires the eVision 22

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Management Defendants to pay or to cause to be paid in total $865,500 in cash (" Cash Settlement Payment" less any Court-ordered attorneys' the ), fees and costs to Plaintiffs' Counsel, special awards to Derivative Plaintiffs, and settlement Administration Expenses to the Settlement Administrator, and accruing interest from the date of funding until distribution to eVision or such other persons as the Court directs. The Settlement also requires the eVision Management Defendants or their designee to cause fully paid, non-assessable and unencumbered securities of eBanker USA.com, Inc. to be transferred and conveyed to eVision, equal to six percent of eBanker USA.com, Inc.' common stock in total, which has been found to have a reasonable s value of $500,000 or, in the eVision Management Defendants' discretion, make an additional cash payment to the Settlement Fund of $500,000 in total in lieu of such securities. In addition, the Settlement Agreement requires the eVision Management Defendants to use reasonable efforts to cause eVision to nominate and elect two independent directors to the eVision Board of Directors within 18 months of the Effective Date and to cause eVision to come current with any required Securities and Exchange Commission filings within 18 months of the Effective Date. The Settlement Agreement also requires that the Cash Settlement Payment be deposited and maintained in an escrow, interest-bearing account, subject only to deductions or expenditures that are expressly provided in the Settlement Agreement and approved or ordered by the Court. The Securities will be transferred to eVision free and clear of any encumbrance as specified in the Settlement Agreement after the Effective Date.

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Further, the Settlement Agreement provides for these benefits to eVision even though the eVision Management Defendants, at all times, have disputed, and continue to dispute Plaintiffs' Derivative Claims and have denied, and continue to deny, any liability for any of the claims that have been or could have been alleged by Plaintiffs or eVision. In exchange for the consideration to be paid or given by the eVision Management Defendants, Plaintiffs and eVision will fully discharge and release the eVision Management Defendants and the other Releasees as specified in the Settlement Agreement from any and all claims Plaintiffs or eVision have or might in the future have against the e Vision Management Defendants and all Releasees, that were or could have been alleged in the Action including all claims relating to, arising out of, or in connection with the facts and circumstances alleged in the Action. In determining whether to grant final approval to the Settlement of the Derivative Claims the Court has taken into account, among other things, (1) the defenses asserted by the eVision Management Defendants in the motions to dismiss and the motion for partial summary judgment they filed in response to Plaintiffs' pleadings and discovery from Plaintiffs, (2) the risk to Plaintiffs and eVision that the eVision Management Defendants would successfully defend against the claims arising out of the facts and legal theories pled and asserted in the case, whether litigated by Plaintiffs on behalf of eVision or by eVision itself, and (3) the length of time and amount of money and other resources that would be required for Plaintiffs or eVision to obtain a final judgment through one or more trials and appeals. Moreover, the Settling Parties have reached the Settlement after vigorous litigation, significant investigation and discovery 24

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conducted by the Settling Parties and their respective counsel, and an arm' s-length negotiation process, and is not in any way the product of collusion. Having considered the foregoing, the number of eVision Shareholders who have commented on the Settlement, the level of opposition to the Settlement, the strength and weaknesses of the claims that have been and could be asserted by or on behalf of Plaintiffs and eVision, the strengths and weaknesses of the defenses that have been and could be asserted by the eVision Management Defendants, the damages and other relief that have been and could be claimed on behalf of Plaintiffs and eVision, the value of the Settlement, and the complexity, length, expense, and uncertain outcome of continued litigation, and there being no legitimate suggestion of improper collusion among the Settling Parties, the Court finds that the Settlement is fair, reasonable, and adequate to Plaintiffs and eVision. The Court further finds that the releases to be provided to the e Vision Management Defendants and all other Releasees by and on behalf of Plaintiffs and eVision are being given in good faith for the purposes of C.R.S. § 13-50.5-105. Still further, the Court finds that the releases to be provided to Plaintiffs and eVision by the eVision Management Defendants are being given in good faith. Accordingly, the Court hereby grants final approval, pursuant to F.R.Civ.P. 23.1 and other applicable laws, to the Settlement Agreement, as it relates to the Derivative Claims and enters this Judgment implementing its terms. The Court hereby adopts and incorporates the terms of the Settlement Agreement for the purposes of this Order and Judgment.

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With respect to the Class Claims, the Settlement requires eVision to notify members of the Class substantively as follows: That Forms 1099 that they received in connection with previously declared and paid Convertible Series B-1 Preferred Stock dividends valued the in-kind portion of the dividend at the face value of the Preferred Stock as required by eVision Articles of Incorporation. The Articles of Incorporation required the company to pay 0. 07 shares annually for each share owned. Thus, the value of the shares paid as dividend remained constant at $10, the original issue price of the Series B-1 Preferred Stock. For tax purposes, the market or fair value of the in-kind portion of the dividend may have been less than the face value of the in-kind dividend they received at the time they received it. As such, holders of the Series B-1 Preferred Stock should consult a tax professional to determine whether to fie an amendment to previously filed tax returns that places a different value on the in-kind portion of the dividend they received. To the extent the Board declares a dividend in the future, holders of the Preferred Stock may want to make a similar effort to assess the market or fair value of the in-kind portion of any such dividend prior to calculating their tax liability with respect thereto. The Settlement Agreement further requires eVision to include a similar notice with any future Form 1099s reflecting an in-kind Series B-1 Preferred Stock dividend. Further, for the purpose of valuing any in-kind Series B-1 Preferred Stock dividend previously or prospectively declared by eVision, upon request, eVision shall make available for inspection and copying and, to the extent required by law, provide to the eVision Shareholders any and all records and information identified in C.R.S. §§ 7-116101(5), 7-116-102(2), 7-116-105 and 7-116-106, provided that any request for such information is made in compliance with C.R.S. § 7-116-101, et seq. Moreover, to the

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extent it has not previously done so, as soon as practicable after the Effective Date, eVision shall cause certificates evidencing all previously declared Series Preferred Stock dividends to be issued to Class Members. In exchange for this Class-wide relief, Class Plaintiffs and each member of the Class fully discharge and release eVision, the eVision Management Defendants and the other Releasees as specified in the Settlement Agreement. The Settlement Agreement contains an express acknowledgement by the Class Plaintiffs on behalf of themselves and the Class Members that the methodology was appropriate and correct according to eVision' Articles of Incorporation. s In determining whether to grant final approval to the Settlement of the Class Claims, the Court has taken into account, among other things, (1) the defenses asserted by the eVision and the eVision Management Defendants in their motions to dismiss and their opposition to Class Plaintiffs' motion for class certification, (2) the risk to the Class that eVision and the eVision Management Defendants, or both of Settling Defendants, would successfully defend against the claims arising out of the facts and legal theories pled and asserted in the case, whether litigated by Plaintiffs on behalf of eVision or by eVision itself, (3) the risk that Class Plaintiffs would fail to obtain certification of the Class; and (4) the length of time and amount of money and other resources that would be required for Plaintiffs or eVision to obtain a final judgment through one or more trials and appeals. Moreover, the Settling Parties have reached the Settlement after vigorous litigation, significant investigation and discovery

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conducted by the Settling Parties and their respective counsel, and an arm' s-length negotiation process, and is not in any way the product of collusion. Having considered the foregoing, the number of Class Members who have commented on the Settlement, the level of opposition to the Settlement, the strength and weaknesses of the claims that have been and could be asserted by or on behalf of the Class, related to the Forms 1099 distributed to them, the strengths and weaknesses of the defenses that have been and could be asserted by eVision and the e Vision Management Defendants to the Class Claims, the damages and other relief that have been and could be claimed on behalf of the Class, the value of the Settlement, and the complexity, length, expense, and uncertain outcome of continued litigation, and there being no legitimate suggestion of improper collusion among the Settling Parties, the Court finds that the Settlement is fair, reasonable, and adequate to Plaintiffs and eVision. The Court further finds that the releases to be provided to the eVision Management Defendants and eVision and all other Releasees by and on behalf of Class Plaintiffs and the Class are being given in good faith for the purposes of C.R.S. § 13-50.5-105. The Court further finds that the acknowledgment by the Class Plaintiffs on behalf of themselves and the Class Members regarding the methodology employed by eVision for calculating the proper amount of in-kind portion of the dividend payable on the Preferred Stock is correct and appropriate and binding. Still further, the Court finds that the releases to be provided to Class Plaintiffs by eVision and the eVision Management Defendants are being given in good faith. Accordingly, the Court hereby grants final approval, pursuant to F.R.Civ.P. 23 and other applicable laws, to the 28

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Settlement Agreement, as it relates to the Class Claims, and enters this Judgment implementing its terms. The Court hereby adopts and incorporates the terms of the Settlement Agreement for the purposes of this Order and Judgment. E. Administration of the Settlement

Now, for the purposes of consummating the administration of the Settlement, the Court orders as follows: 1. Settling Defendants'Rights In or To the Settlement Fund The Settling Parties have executed, and are bound by each of the terms and conditions of, an Escrow Agreement relating to the handling of the Cash Settlement Payment, Settlement Fund, and Net Settlement Fund. Plaintiffs' Counsel is hereby authorized to execute such transactions as are consistent with the terms of that Escrow Agreement, the Settlement Agreement, and this Order and Judgment. All funds held by the Escrow Agent shall be deemed and considered to be in custodia legis until such time as the funds shall be distributed to eVision, the Settlement Administrator, Plaintiffs' Counsel, Plaintiffs, or such other Persons as the Court directs pursuant to further order. If, after the entry by this Court of this Order and Judgment, no notice of appeal of this Order and Judgment has been filed, the time provided for in F.R.App.P. 4 to take any such appeal has expired, and any right to take an appeal from this Order and Judgment has been waived, or, if each such appeal has been finally adjudicated, this Order and Judgment have been upheld in all respects by each such final adjudication, and the Effective Date has occurred, the eVision Management Defendants' rights in or 29

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to the Settlement Fund shall be extinguished, except as expressly provided in paragraph 4 of the Settlement Agreement. All interest that has accrued on the Cash Settlement Payment, whether accrued before or after the Effective Date, shall become part of the Settlement Fund and be distributed pursuant to this Order and Judgment and any further order of the Court. If for any reason the Effective Date fails to occur, however, the eVision Management Defendants shall receive a refund of their respective share of the Cash Settlement Payment, plus any interest that has accrued on their share of the Cash Settlement Payment after the Cash Settlement Payment was deposited with the Escrow Agent, but less any Administration Expenses that Settling Defendants previously paid up to the amount of $6,250, or any such appropriate pro-rated lesser amount as provided in paragraph 31 of the Settlement Agreement. Such refund shall be paid to the eVision Management Defendants within 21 days after Plaintiffs' Counsel have received the eVision Management Defendants' termination notice pursuant to paragraphs 18 and 69 of the Settlement Agreement. 2. Distribution of the Settlement Fund Plaintiffs' Counsel, subject to the supervision, direction, and approval of the Court as provided in this Order and Judgment, shall administer and oversee the distribution of the Settlement Fund to eVision, Plaintiffs, Plaintiffs' Counsel, the Settlement Administrator, and such other Persons who are approved by further order of the Court to receive payment. Until the Effective Date occurs, any withdrawal from the Settlement Fund may be made only with the joint authorization and signatures of: 30

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(1) either Charles W. Lilley or Jacob A. Goldberg; (2) either Allan L. Hale or Scott A. Hyman; (3) either Carla B. Minckley or Thomas D. Birge; and (4) Michael T. Williams. After the Effective Date, withdrawals from the Settlement Fund shall be made only pursuant to the terms of this Order and any further order of the Court and shall be made under the signature of Charles W. Lilley or Jacob A. Goldberg. As soon as reasonably practicable after the Effective Date, the Settlement Fund, less any taxes on the income thereof, shall be used by Plaintiffs ' Counsel to pay (a) Plaintiffs' Counsel' award of attorneys' s fees and reimbursement of costs, in the amount determined by this Order or by separate order of the Court; (b) Derivative Plaintiffs' special awards, in the amounts determined by this Order or by separate order of the Court; (c) any previously unpaid Administration Expenses; and (d) the Escrow Agent's expenses, if any. After the payments from the Settlement Fund have been made pursuant to this paragraph, the Net Settlement Fund shall be paid to eVision consistent with the terms of the Settlement Agreement or as otherwise directed by this Court. 3. Declaration of Payments to Plaintiffs, Plaintiffs'Counsel, the Settlement Administrator, and eVision Plaintiffs' Counsel shall, within 30 days after the payment of all distributions from the Settlement Fund pursuant to section D.2 above, (a) provide to all Defendants' respective counsel a statement summarizing the date and amount of all such payments made from the Settlement Fund (the " Final Accounting" and (b) promptly after the ); submission of the Final Accounting to Defendants' respective counsel, file with the

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Court a declaration under penalty to perjury that Plaintiffs' Counsel has submitted to all Defendants' counsel the required Final Accounting. F. Release, Covenant not to Sue, Settlement Contribution Bar, and Effect of Settlement Agreement 1. Releases With respect to the Derivative Claims, in consideration of the terms of the Settlement Agreement, Plaintiffs and eVision are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged, as of the Effective Date, all of the following claims they have or may have against (I) the eVision Management Defendants and their respective agents, representatives, trustees, administrators, fiduciaries, subrogees, executors, servants, employees, attorneys, accountants, insurers, and reinsurers, whether foreign or domestic; (ii) any Affiliate of any of the eVision Management Defendants (other than any wholly owned or consolidated subsidiary of eVision) including such Affiliates' predecessors and successors in interest, present and former parents, subsidiaries, associated entities and assigns, whether foreign or domestic together with their respective past, present, and future partners, members, owners, managers, principals, associates, shareholders, officers, directors, agents, representatives, trustees, administrators, fiduciaries, subrogees, executors, servants, employees, attorneys, accountants, insurers, and reinsurers, whether foreign or domestic (collectively, " Releasees" ): all claims, actions, causes of action, administrative claims, demands, debts, damages, costs, attorney s fees, obligations, judgments, expenses, compensation, or liabilities of any type or nature, in law or in equity (" Claims" whether ), 32

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now known or unknown, contingent or absolute, that Derivative Plaintiffs, Class Plaintiffs, eVision, or any other Person represented by Derivative Plaintiffs or Class Plaintiffs now has or, absent this Settlement Agreement, may in the future have had, against any of the Releasees, by reason of any act, omission, harm, matter, cause, or event whatsoever that has occurred at any time up to and including the Effective Date that has been alleged or could have been alleged in the Action, including, without limitation, Claims related to any act, omission, breach, defect, harm, matter, cause, or event whatsoever alleged in any pleading in the Action or arising out of the initiation, defense, or settlement of the Action. The term "Released Claims" shall not include (a) claims to enforce any obligation expressly assumed by any of the Settling Parties under this Agreement; (b) any claim for indemnification asserted by the eVision Management Defendants, or their assigns or subrogees against eVision provided such claim is made in strict compliance with C.R.S. § 7-109-101, et seq.; or, (c) with the exception of the Derivative Plaintiffs and the Class Plaintiffs, any Claim that an eVision shareholder may have in their own right and in their individual capacity (as opposed to their capacity as an eVision shareholder or Class Member) that does not arise from or otherwise reasonably relate to: (I) the allegations made or claims asserted by either the Derivative Plaintiffs or the Class Plaintiffs in the Complaint or other pleadings filed by them in the Action or (ii) the initiation, defense, or settlement of the Action (" Released Claims" ). With respect to the Class Claims, in consideration of the terms of the Settlement Agreement, each and every member of the Class that has not opted out of the Class are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged, as of the Effective Date, all of the following claims they have or may have against (I) eVision, the eVision Management Defendants and their respective agents, representatives, trustees, administrators, fiduciaries, subrogees, executors, servants, employees, attorneys, accountants, insurers, and reinsurers, whether foreign 33

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or domestic; (ii) any Affiliate of eVision or any of the eVision Management Defendants including such Affiliates' predecessors and successors in interest, present and former parents, subsidiaries, associated entities and assigns, whether foreign or domestic together with their respective past, present, and future partners, members, owners, managers, principals, associates, shareholders, officers, directors, agents, representatives, trustees, administrators, fiduciaries, subrogees, executors, servants, employees, attorneys, accountants, insurers, and reinsurers, whether foreign or domestic (" Releasees" ): all claims, actions, causes of action, administrative claims, demands, debts, damages, costs, attorney s fees, obligations, judgments, expenses, compensation, or liabilities of any type or nature, in law or in equity (" Claims" ), whether now known or unknown, contingent or absolute, that Derivative Plaintiffs, Class Plaintiffs, eVision, or any other Person represented by Derivative Plaintiffs or Class Plaintiffs now has or, absent this Settlement Agreement, may in the future have had, against any of the Releasees, by reason of any act, omission, harm, matter, cause, or event whatsoever that has occurred at any time up to and including the Effective Date that has been alleged or could have been alleged in the Action, including, without limitation, Claims related to any act, omission, breach, defect, harm, matter, cause, or event whatsoever alleged in any pleading in the Action or arising out of the initiation, defense, or settlement of the Action. The term "Released Claims" shall not include (a) claims to enforce any obligation expressly assumed by any of the Settling Parties under this Agreement; (b) any claim for indemnification asserted by the eVision Management Defendants, or their assigns or subrogees against eVision provided such claim is made in strict compliance with C.R.S. § 7-109-101 et seq.; or (c) with the exception of the Derivative Plaintiffs and the Class Plaintiffs, any Claim that an eVision shareholder may have in their own right and in their individual capacity (as opposed to their capacity as an eVision shareholder 34

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or Class Member) that does not arise from or otherwise reasonably relate to: (I) the allegations made or claims asserted by either the Derivative Plaintiffs or the Class Plaintiffs in the Complaint or other pleadings filed by them in the Action or (ii) the initiation, defense, or settlement of the Action (" Released Claims" ). In consideration of the terms of the Settlement Agreement, eVision and the eVIsion Management Defendants are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged, as of the Effective Date, all of the following claims they have or may have against Plaintiffs, Plaintiffs' Counsel, eVision, and all agents, consultants, and experts employed by Plaintiffs or Plaintiffs' Counsel in connection with this Action as against them: All claims arising out of, referring, or relating to the institution, prosecution, or resolution of this Action, except for the eVision Management Defendants respective rights to (I) enforce the Agreement; (ii) to seek indemnification from eVision under, and only in strict compliance with, C.R.S. § 7-109-101 et seq.; or, (iii) to recover, in the event the Settlement is terminated, any amounts paid by them under the Settlement. 2. Covenant Not to Sue In consideration of the terms of the Settlement Agreement, Plaintiffs and eVision are hereby found, deemed, and adjudged, as of the Effective Date, to have (1) covenanted and agreed that neither Plaintiffs nor eVision, nor anyone authorized to act on behalf of any of them, will commence, authorize, or accept any benefit from any judicial or administrative action or proceeding, other than as expressly provided for in the Settlement Agreement, against Releasees or any of them in either their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises 35

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from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by any Releasee in connection with the Released Claims; (2) waived and disclaimed any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by Plaintiffs, eVision, or on either Plaintiffs' eVision' behalf; and or s (3) agreed that the Settlement Agreement shall be a complete bar to any such action or proceeding. 3. Settlement Agreement as Exclusive Remedy for Released Claims Upon the entry of this Order and Judgment, (1) enforcement of the Settlement Agreement shall be the exclusive remedy for the Settling Parties with respect to all Released Claims; and (2) the Releasees shall not be subject to liability or expense of any kind to Plaintiffs or eVision, all of whom shall be permanently barred and enjoined from initiating, asserting, or prosecuting against any of the Releasees, in any federal or state court or tribunal, the Released Claims. 4. Settlement Contribution Bar With respect to the claims that Plaintiffs have asserted or may attempt to assert against any other Person relating to or arising out of the facts and circumstances that are alleged or could have been alleged in the Action, Plaintiffs and eVision are hereby found, deemed, and adjudged to have fully discharged, credited, and satisfied against the total recovery from any other Person that fraction or percentage or the total claim or damages that may be determined by the finder of fact to have been attributable to the fault or negligence of the eVision Management Defendants, all pursuant to the provisions of C.R.S. § 13-50.5-105(1). Pursuant to this settlement contribution bar 36

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and C.R.S. § 13-50.5-105(1)(b), the