Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 1 of 31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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1 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 1 of 31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA SID MURDESHWAR, Individually and on Behalf of All Others Similarly Situated, v. Plaintiff Case No.: 1:11-cv KMW SEARCHMEDIA HOLDINGS LTD., et al., Defendants STIPULATION AND AGREEMENT OF PARTIAL SETTLEMENT This Stipulation and Agreement of Partial Settlement (the Stipulation ) is submitted pursuant to Rule 23 of the Federal Rules of Civil Procedure. Subject to the approval of the Court, this Stipulation is entered into among Lead Plaintiff Noel Upfall and Defendants SearchMedia Holdings Limited, Robert Fried, Phillip Frost, Rao Uppaluri, Steven Rubin, Glenn Halpryn, Thomas Beier, David Moskowitz, and Shawn Gold. DEFINITIONS As used in this Stipulation, the following capitalized terms shall have the following meanings: 1. Action means Sid Murdeshwar v. SearchMedia Holdings Ltd., et al., Case No. 11-cv KMW, pending in the Court and Hymie Akst v. SearchMedia Holding Limited et al., Case No CIV, filed in the Court. 2. Administration Expenses means all costs, disbursements, and expenses, other than Notification Costs, incurred in the implementation of this Settlement and that are approved by the Court, including, but not limited to, reasonable fees and expenses of the Claim 1

2 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 2 of 31 Administrator to administer the Settlement, review Claims filed by Class Members, and transfer payments to Authorized Claimants. 3. "Arbitration Claims" means the claims that have been or may be brought by SearchMedia in an arbitration proceeding pending in the International Centre for Dispute Resolution against China Seed Ventures, L.P., Qinying Liu, Deutsche Bank AG, Le Yang, Sun Hing Associates LTD., and Vervain Equity Investments Limited. 4. Authorized Claimant means a Class Member whose claim for recovery has been allowed pursuant to the terms of the Stipulation. 5. Cash Settlement Amount means $2,750,000 that the Settling Defendants shall cause to be delivered to the Settlement Account pursuant to the terms of this Stipulation. 6. Claim means a completed and signed Proof of Claim submitted to the Claims Administrator in accordance with the instructions on the Proof of Claim. 7. Claimant means a person or entity that submits a Proof of Claim to the Claims Administrator seeking to share in the proceeds of the Net Settlement Fund. 8. Claims Administrator means the Garden City Group, Inc., which shall administer the Settlement. 9. Class means all persons or entities who: (i) purchased or otherwise acquired SearchMedia securities between April 1, 2009 and August 20, 2010, inclusive; and/or (ii) held common stock of Ideation on October 2, 2009, and were eligible to vote at Ideation s October 27, 2009, special meeting. Excluded from the Class are Defendants, the officers and directors of Ideation, the officers and directors of SearchMedia, the officers and directors of SearchMedia International Limited, members of Defendants' immediate families and their legal representatives, heirs, successors or assigns and any entity in which Defendants have or had a 2

3 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 3 of 31 controlling interest, China Seed Ventures, L.P., Deutsche Bank AG, Le Yang, Sun Hing Associates LTD., and Vervain Equity Investments Limited. Also excluded from the Class are all persons and entities who submit a valid request for exclusion pursuant to the terms of this Stipulation. 10. Class Distribution Order means a Court order authorizing distribution of the Net Settlement Fund to Authorized Claimants. 11. Class Member means a person or entity who falls within the definition of the Class, and includes each of their respective past or present officers, directors, shareholders, employees, agents, attorneys, partners, managers, members, affiliates, subsidiaries, shareholders, spouses, heirs, executors, administrators, representatives, successors and assigns. Persons and entities who submit a valid request for exclusion pursuant to the terms of this Stipulation are not included in the Class. 12. Court means the United States District Court for the Southern District of Florida. 13. Counsel Fees and Expenses means fees and expenses allowed by the Court that are sought and were incurred by Lead Counsel in the prosecution of the Action. 14. Defendants means SearchMedia, Robert Fried, Phillip Frost, Rao Uppaluri, Steven Rubin, Glenn Halpryn, Thomas Beier, David Moskowitz, Shawn Gold, SearchMedia International Limited, Garbo Lee, Qinying Liu, Earl Yen, Jennifer Huang, and Paul Conway. 15. Effective Date means the first day after the Court enters the Order and Final Judgment and either (i) the expiration of any time for review or appeal of the Order and Final Judgment, or (ii) if any appeal is filed and not dismissed, the Order and Final Judgment is upheld on appeal in all material respects and is no longer subject to review upon appeal or review by 3

4 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 4 of 31 writ of certiorari. Any award of Counsel Fees and Expenses, Representative Reimbursement, and/or the approval of any Plan of Allocation shall not be considered a material provision of the Order and Final Judgment, and any appeal of Counsel Fees and Expenses, Representative Reimbursement, or Plan of Allocation shall not delay the Effective Date, and any modification as a result of such appeal shall not be considered a modification of a material term. 16. Escrow Agent means Saxena White P.A. 17. Fairness Hearing means the hearing held by the Court to consider final approval of the Settlement of the Action, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. 18. Ideation means Ideation Acquisition Corp. 19. Lead Counsel means the law firms of Saxena White P.A. and Glancy Binkow & Goldberg LLP. 20. Lead Plaintiff means Noel Upfall. 21. Net Settlement Fund means the Settlement Fund, less any Taxes, Tax Expenses, Notification Costs, Administration Expenses, Counsel Fees and Expenses, Representative Reimbursement, and any other expenses approved by the Court. The Net Settlement Fund shall be distributed to the Authorized Claimants as provided in this Stipulation. 22. Non-Settling Defendants means SearchMedia International Limited, Garbo Lee, Qinying Liu, Earl Yen, Jennifer Huang, and Paul Conway. 23. Notice means the Notice of Pendency of Class Action and Proposed Partial Settlement and Motion for Fairness Hearing, Attorneys Fees and Reimbursement of Expenses, which is to be posted to the Settlement website substantially in the form attached as Exhibit A. 4

5 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 5 of Notification Costs means the costs of identification of Class Members, mailing the Notice to the Class, publication of the Summary Notice, and related duplication and printing costs. 25. Order and Final Judgment means the partial final judgment and order entered by the Court approving the Settlement and dismissing the claims against the Settling Defendants with prejudice, substantially in the form attached as Exhibit F, or any alternative order and judgment entered by the Court which does not result in the election by Lead Counsel and/or Settling Defendants to terminate this Settlement. 26. Postcard Notice means the Postcard Notice of Pendency of Class Action and Proposed Partial Settlement and Motion for Fairness Hearing and Award of Attorneys Fees and Expenses, which is to be distributed to Class Members substantially in the form attached as Exhibit B. 27. Preliminary Order means the order, substantially in the form attached as Exhibit D, which shall provide, among other things, for preliminary approval of the proposed Settlement and a Fairness Hearing by the Court to consider the Settlement and the Notice contemplated to be provided to all reasonably identifiable Class Members. 28. Proof of Claim means the document which is substantially in the form attached to the Notice. 29. Released Parties and Released Party means the Settling Defendants and includes the Settling Defendants and Ideation s directors, officers, employees, agents, consultants, attorneys, accountants, auditors, underwriters, partners, insurers, reinsurers, personal representatives, spouses, issues, heirs, executors, administrators, predecessors, successors, assigns, parent corporations, subsidiaries, divisions, and affiliates, or any other individual or 5

6 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 6 of 31 entity in which the Settling Defendants or Ideation had or have a controlling interest. Released Parties shall not be construed to include the Non-Settling Defendants. 30. Representative Reimbursement means the payment that is approved by the Court to be paid to the Lead Plaintiff for reimbursement of his reasonable costs and expenses directly relating to this Action. 31. "SearchMedia" means SearchMedia Holdings Limited (formerly known as Ideation). 32. Settled Claims means any and all claims, debts, demands, rights, causes of action or liabilities, of every nature and description whatsoever, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, based in law or equity, or based on any foreign, federal, state, local, statutory or common law, or any other law, rule or regulation (including any claims for violations of Fed. R. Civ. P. 11), including both known claims and Unknown Claims that have been or could have been asserted in any forum by any Class Member, or the successors or assigns of any of them, whether directly, indirectly, derivatively, representatively or in any other capacity against any of the Released Parties, which arise out of, relate to, or are based upon, in any way, directly or indirectly, (a) the allegations, transactions, facts, events, matters, occurrences, acts, representations or omissions involved, set forth, or referred to, or that could have been asserted in the Action, or (b) the purchase, acquisition, sale, disposition or transfer of Ideation or SearchMedia securities by any Class Member, including without limitation all claims arising out of or relating to any disclosures, public filings, registration statements or other statement by any or all of the Released Parties. Settled Claims does not mean or include claims, if any, against the Released Parties arising under the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq., which are not common to all Class Members. Settled Claims 6

7 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 7 of 31 does not include claims relating to the enforcement of the Settlement or the terms of this Stipulation. Settled Claims also does not include any claim against the Non-Settling Defendants. 33. Settled Defendants Claims means any and all claims, rights, causes of action or liabilities, of every nature and description whatsoever, whether based in law or equity, on federal, state, local, statutory or common law or any other law, rule or regulation (including any claims for violations of Fed. R. Civ. P. 11), including both known claims and Unknown Claims, that have been or could have been asserted in the Action or any forum by the Released Parties, or any of them, or the successors and assigns of any of them against the Class Members or their attorneys, which arise out of or relate in any way to the institution, prosecution, or settlement of the Action. Settled Defendants' Claims does not include claims relating to the enforcement of the Settlement or the terms of this Stipulation. Settled Defendants' Claims also does not include the Arbitration Claims. 34. Settlement means the partial settlement of this Action contemplated by this Stipulation. 35. Settlement Account means a trust account at a federally chartered financial institution or successor institution selected by the Escrow Agent. The Settlement Account will be managed by the Escrow Agent. 36. Settlement Fund means all cash, accrued interest, or assets in the Settlement Account. 37. Settling Defendants means SearchMedia, Robert Fried, Phillip Frost, Rao Uppaluri, Steven Rubin, Glenn Halpryn, Thomas Beier, David Moskowitz, and Shawn Gold. 38. Settling Defendants Counsel means Holland & Knight LLP. 7

8 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 8 of Summary Notice means the Summary Notice of Pendency of Class Action and Proposed Partial Settlement and Motion for Fairness Hearing and Award of Attorneys Fees and Expenses, for publication in substantially the same form attached as Exhibit C. 40. Taxes shall mean all taxes from any governmental entity (including any estimated taxes, interest, or penalties) arising with respect to the income earned by the Settlement Fund. 41. Tax Expenses shall mean expenses and costs incurred in connection with the preparation, filing or litigation relating to the filing, of appropriate tax returns or related paperwork related to the Settlement. 42. Unknown Claims means any and all Settled Claims that any Class Member does not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties, and any of Settled Defendants Claims that Settling Defendants do not know or suspect to exist in its favor, which if known by him, her, or it might have affected his, her or its decision(s) with respect to the Settlement. With respect to any and all Settled Claims and Settled Defendants Claims, the Released Parties and each Class Member, acting through Lead Counsel, shall each, for themselves and all persons claiming by, through, or on behalf of them, be deemed to have waived, and by operation of the Order and Final Judgment shall have expressly waived, any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, that is similar, comparable, or equivalent to Cal. Civ. Code 1542 and Section of the South Dakota Codified Laws, each of which provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 8

9 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 9 of 31 Each Class Member s and the Released Parties successors and assigns and any persons or entities claiming through or on behalf of them shall, by operation of law, be deemed to have acknowledged, that the inclusion of Unknown Claims in the definition of Settled Claims and Settled Defendants Claims was separately bargained for and was a material element of the Settlement and Stipulation. SCOPE AND EFFECT OF SETTLEMENT 43. This Settlement was reached as a result of arms length negotiations and in good faith, undertaken in the context of a voluntary mediation between the Lead Plaintiff and Settling Defendants through the mediation services of Jed D. Melnick, Esq., and reflects a voluntary submission to the terms of the Settlement. 44. The obligations incurred pursuant to this Stipulation shall be in full and final disposition of the Action as against the Settling Defendants, and shall fully and finally release any and all Settled Claims as against all Released Parties and shall also release all Settled Defendants Claims. The Order and Final Judgment shall, among other things, provide for the dismissal with prejudice of the Action against the Settling Defendants, without costs to any party, as such costs are identified in 28 U.S.C The terms of this Stipulation shall not affect the prosecution of any claims in this Action as against the Non-Settling Defendants. 45. Upon the Effective Date of this Settlement, the Class Members, on behalf of themselves, their heirs, executors, administrators, predecessors, successors, and assigns, and any other person claiming by, through or on behalf of them, whether or not that Class Member executes and delivers a Proof of Claim or otherwise shares in the Settlement Fund, (a) shall be deemed to have released and discharged all Settled Claims; and (b) shall be enjoined from prosecuting, either directly or indirectly, any Settled Claims against any of the Released Parties. 9

10 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 10 of Upon the Effective Date of this Settlement, the Released Parties, on behalf of themselves, their executors, administrators, predecessors, successors, assigns, and all persons and entities claiming through or on behalf of them, (a) shall be deemed to have released all Settled Defendants Claims; (b) shall be enjoined from prosecuting, either directly or indirectly, any Settled Defendants Claim; and (c) shall forever be enjoined from prosecuting, either directly or indirectly, any action, suit, cause of action, claim or demand against any person or entity who may claim any form of contribution or indemnity from Class Members or their counsel in respect of any Settled Defendants Claim. Provided, however, that nothing in this paragraph or Stipulation shall preclude the Settling Defendants from continuing to pursue the Arbitration Claims. THE SETTLEMENT CONSIDERATION 47. In settlement of all Settled Claims against the Released Parties, and subject only to the terms and conditions of this Stipulation, Settling Defendants shall cause to be paid the Cash Settlement Amount ($2,750,000) into the Settlement Account within 14 days after the later of: (i) the Court s entry of the Preliminary Order; and (ii) the receipt by Settling Defendants of an address for the delivery of a check for the Cash Settlement Amount and the Settlement Account s Form W-9 necessary to effect payment. 48. The Settlement Fund shall be maintained in the Settlement Account from the date it is deposited until it is transferred in accordance with the provisions of this Stipulation or by Order of the Court. The Settlement Account shall be managed by the Escrow Agent. 49. The Net Settlement Fund shall be the sole source of funds for payment of valid Claims to the Class. Class Members will look solely to the Net Settlement Fund for settlement and satisfaction of any and all Settled Claims against the Released Parties. 10

11 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 11 of All Taxes and Tax Expenses shall be paid out of the Settlement Fund prior to distribution to Class Members without need for prior order from the Court. The Escrow Agent shall be obligated to withhold from distribution to Class Members any funds necessary to pay such amounts. The Escrow Agent shall indemnify and hold all Released Parties harmless for any Taxes and Tax Expenses (including without limitation taxes payable by reason of any such indemnification), if any, payable by any Released Party by reason of any income and gains earned on the Settlement Fund. A Released Party shall notify the Escrow Agent promptly if it receives any notice of any claim for Taxes relating to the Settlement Fund. 51. The Escrow Agent shall invest all Settlement Account funds in U.S. government issued securities or guaranteed instruments (or a mutual fund invested solely in such instruments), and shall collect and reinvest all interest accrued thereon. Any funds held in escrow in an amount not to exceed any applicable FDIC limits may be held in an interest-bearing bank account insured by the FDIC. 52. The Settlement Fund is intended to be a Qualified Settlement Fund within the meaning of Treasury Regulation 1.468B-1 and the Escrow Agent, as administrator of the Settlement Fund within the meaning of Treasury Regulation 1.468B-2(k)(3), shall be responsible for filing tax returns for the Settlement Fund and paying from the Settlement Fund any Taxes owed with respect to the Settlement Fund. The Settlement Fund shall be treated as a Qualified Settlement Fund from the earliest date possible, (including any relation-back election required to treat the Settlement Fund as a Qualified Settlement Fund from the earliest date possible). Settling Defendants' Counsel agrees to provide promptly to the Escrow Agent the statement described in Treasury Regulation 1.468B-3(e). 11

12 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 12 of If the Court approves the Settlement contemplated by this Stipulation, the Lead Plaintiff and the Settling Defendants shall jointly request that the Court enter a bar order (the "Bar Order") containing all of the following provisions: a) The Non-Settling Defendants and all other persons and entities, including but not limited to any other person or entity later named as a defendant or third-party defendant in this Action, are hereby permanently barred, enjoined and restrained from commencing, prosecuting, or asserting any claim for contribution (whether contractual or otherwise) against the Released Parties or any other claim against the Released Parties where the injury to such entity/individual is any person's or entity's actual or threatened liability to the Lead Plaintiff or any Class Member, including but not limited to any amounts paid in settlement of such actual or threatened liability, or any other costs or expenses (including attorneys' fees) incurred in connection with this Action; provided, however, that a Non-Settling Defendant shall not be barred from pursuing contractual claims against SearchMedia to recover attorneys' fees and costs actually and reasonably incurred in the successful defense of claims asserted against such Non-Settling Defendant in this Action, but only to the extent such contractual claims exist and only to the extent of such Non-Settling Defendant's success. b) The Released Parties are permanently barred, enjoined and restrained from commencing, prosecuting or asserting any claim for contribution (whether contractual or otherwise) against the Non-Settling Defendants or any other claim against the Non-Settling Defendants where the injury to the Released Parties is any person's or entity's actual or threatened liability to the Lead Plaintiff or Class 12

13 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 13 of 31 Members, including but not limited to any amounts paid in settlement of such actual or threatened liability, or any other costs or expenses (including attorneys' fees) incurred in connection with this action; provided, however, that SearchMedia may continue to pursue the Arbitration Claims. ADMINISTRATION OF THE SETTLEMENT 54. The Claims Administrator shall administer the Settlement subject to the supervision, direction, and approval of Lead Counsel and the Court; calculate the Claims submitted by Class Members; and oversee distribution of the Net Settlement Fund. The Claims Administrator shall be responsible for maintaining the Settlement website, distributing the Postcard Notice and Proofs of Claim, and publishing the Summary Notice, respectively. 55. Settling Defendants and Settling Defendants' Counsel shall have no responsibility for, interest in, or liability with respect to the investment or distribution of the Net Settlement Fund, the Plan of Allocation, the determination, administration, or calculation of Claims, the payment or withholding of Taxes, the payment of Tax Expenses, the payment of Notification Costs and Administration Expenses, or any losses incurred in connection therewith. 56. No monies will be disbursed from the Settlement Account until after the Effective Date, except: a) Lead Counsel may pay Administration Expenses and Notification Costs as set forth in 57; and b) Lead Counsel may pay Taxes and Tax Expenses as set forth in Lead Counsel may pay Administration Expenses and Notification Costs from the Settlement Fund without prior approval from Settling Defendants' Counsel. Notwithstanding this provision, prior to the Effective Date, Lead Counsel shall not pay more than $100,000 from 13

14 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 14 of 31 the Settlement Fund for such Administration Expenses and Notification Costs without the prior approval of Settling Defendants' Counsel, which shall not be unreasonably withheld. 58. Any Class Member who does not submit a valid Proof of Claim will not be entitled to receive any of the proceeds from the Net Settlement Fund but will otherwise be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Order and Final Judgment to be entered in the Action, and will be barred from bringing any action against the Released Parties concerning the Settled Claims. The Claims Administrator shall provide Lead Counsel with a list of all late-filed, but otherwise adequate Proofs of Claim for consideration by the Court for inclusion in the distribution. 59. The Claims Administrator shall process the Proofs of Claim and, after entry of the Class Distribution Order, distribute the Net Settlement Fund to the Authorized Claimants. 60. For purposes of determining the extent, if any, to which a Class Member shall be entitled to be treated as an Authorized Claimant, the following conditions shall apply: (a) Each Class Member shall submit a Proof of Claim (attached to Exhibit A), supported by sufficient documentary evidence (including proof of the transactions claimed and the losses incurred as a result), or such other documents or proof as the Claims Administrator, in its discretion, may deem acceptable; (b) All Proofs of Claim must be submitted by the date specified in the Notice, unless such period is extended by Order of the Court. All Class Members who fail to timely submit a valid Proof of Claim and all Class Members whose Claims are rejected by the Claims Administrator (or the Court if a timely contest to the rejection is filed), shall be barred from receiving any proceeds from the Net Settlement Fund, but will in all other respects be subject to and bound by the provisions of the Stipulation and 14

15 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 15 of 31 Settlement, including the terms of the Order and Final Judgment to be entered in the Action, and will be barred from bringing any action against the Released Parties concerning the Settled Claims; (c) Each Proof of Claim shall be submitted to and reviewed by the Claims Administrator, who shall determine in accordance with this Stipulation and the approved Plan of Allocation the extent, if any, to which each Claim shall be allowed, subject to review by the Court pursuant to subparagraph (e) below; (d) Proofs of Claim that do not meet the submission requirements may be rejected. Prior to rejection of a Proof of Claim, the Claims Administrator shall communicate with the Claimant in order to attempt to remedy the curable deficiencies in the Proofs of Claim submitted. The Claims Administrator shall timely notify in writing each Claimant whose Proofs of Claim it proposes to reject in whole or in part, setting forth the reasons therefore, and shall indicate in such notice that the Claimant whose Claim is to be rejected has the right to a review by the Court if the Claimant so desires and complies with the requirements of subparagraph (e) below; (e) If any Claimant whose Claim has been rejected in whole or in part desires to contest such rejection, the Claimant must, within 20 days after the date of mailing of the notice required in subparagraph (d) above, serve the Claims Administrator with a notice and statement of reasons indicating the Claimant s grounds for contesting the rejection along with any supporting documentation, and requesting a review thereof by the Court. If a dispute concerning a Claim cannot be otherwise resolved, Lead Counsel shall thereafter present the request for review to the Court; and 15

16 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 16 of 31 (f) The administrative determinations of the Claims Administrator accepting and rejecting Claims shall be presented to the Court for approval by the Court in the Class Distribution Order. 61. Each Claimant will be subject to investigation and discovery under the Federal Rules of Civil Procedure, provided that such investigation and discovery shall be limited to that Claimant s status as a Class Member, and the validity and amount of the Claimant s Claim. No discovery shall be allowed on the merits of the Action or Settlement in connection with processing the Proofs of Claim. 62. Payment pursuant to this Stipulation shall be deemed final and conclusive against all Class Members. All Class Members whose Claims are not approved by the Court shall be barred from participating in distributions from the Net Settlement Fund, but otherwise shall be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Order and Final Judgment to be entered in the Action, and will be barred from bringing any action against the Released Parties concerning the Settled Claims. 63. Lead Counsel shall request that the deadline for submitting exclusions from the Class by potential Class Members be at least 21 days prior to the Fairness Hearing. Copies of all requests for exclusion from the Class received by the Claims Administrator (or other person designated to receive exclusion requests) shall be provided to Lead Counsel and Settling Defendants' Counsel no later than 21 days prior to the Fairness Hearing. In addition, at the same time, the Claims Administrator shall also deliver to Lead Counsel and Settling Defendants' Counsel a report of all exclusion requests received setting forth (i) the number of exclusion requests received; (ii) the name, address and telephone number of persons or entities requesting exclusion; and (iii) the number of shares subject to such exclusion requests. In that report, the 16

17 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 17 of 31 Claims Administrator shall indicate which exclusion requests, if any, appear to fail to meet the requirements for obtaining exclusion from the Class as set forth in the Notice and therefore appear to be defective. The Claims Administrator s report is for convenience only and any conclusions in it shall not be binding on Lead Counsel, the Class Members, or Settling Defendants. 64. The Net Settlement Fund shall be distributed to Authorized Claimants by the Claims Administrator only after the Effective Date and after: (i) all Claims have been processed, and all Claimants whose Claims have been rejected or disallowed, in whole or in part, have been notified and provided the opportunity to be heard concerning such rejection or disallowance; (ii) all objections with respect to all rejected or disallowed Claims have been resolved by the Court, and all appeals therefrom have been resolved or the time therefor has expired; (iii) all appeals have been resolved or the time therefor has expired; and (iv) all costs of administration have been paid. 65. If, after 6 months from the date of distribution of the Net Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise) (the Reallocation Date ), there is a balance greater than 2% of the Cash Settlement Amount remaining in the Net Settlement Fund, the Claims Administrator shall reallocate the balance among Authorized Claimants in an equitable and economic fashion, but only to those Authorized Claimants who have cashed their first distribution check and would receive at least $10.00 from the reallocation. Any balance which still remains in the Net Settlement Fund four (4) months after the Reallocation Date (whether any reallocation was necessary), shall be donated to secular nonprofit organization(s) qualifying under Internal Revenue Code 501(c) as designated jointly by Lead Counsel and Settling Defendants' Counsel. 17

18 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 18 of 31 COUNSEL FEES AND EXPENSES 66. Lead Counsel will apply to the Court for an award from the Settlement Fund of attorneys fees not to exceed one-third of the Settlement Fund, and for reimbursement of actual expenses, plus any interest earned on such fees and expenses at the same rate and for the same period earned by the Settlement Fund (until paid) as may be awarded by the Court. Representative Reimbursement shall be paid only if ordered by the Court. The Released Parties will not take any position on such applications. 67. Should the Court award any Counsel Fees and Expenses, Lead Counsel shall be permitted to withdraw all awarded fees and expenses from the Settlement Fund 31 days after the entry of the Order and Final Judgment. If the Settlement is thereafter terminated pursuant to the terms of paragraphs 77-78, Lead Counsel will return to Settling Defendants all previously awarded fees or expenses paid, plus interest actually earned, within 7 business days of the termination of the Settlement. If, as a result of any appeal or further proceedings on remand, or successful collateral attack, the award of attorneys fees and/or actual expenses is reduced or reversed pursuant to a final court order, Lead Counsel will return to Settling Defendants the amount of previously awarded fees and expenses, plus interest actually earned, that are not ultimately approved or sustained on appeal or pursuant to further proceedings on remand, within 7 business days of the appropriate order, decision or judgment. Lead Counsel's obligation to return all previously awarded fees or expenses paid, plus interest actually earned, as set forth in this paragraph shall be joint and several between the law firms of Saxena White P.A. and Glancy Binkow & Goldberg LLP. Lead Counsel may allocate the Counsel Fees and Expenses among other counsel in a manner in which they in good faith believe reflects the contributions of such counsel to the initiation, prosecution, and resolution of the Action, provided, however, that Lead 18

19 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 19 of 31 Counsel may not distribute any Counsel Fees and Expenses to other counsel until the Effective Date. 68. The Settlement is not in any way conditioned upon the Court's award of Counsel Fees and Expenses or Representative Reimbursement. Moreover, the procedure for and the allowance or disallowance by the Court of any applications for Counsel Fees and Expenses or Representative Reimbursement is to be considered by the Court separately from the Court s consideration of the fairness, reasonableness, and adequacy of the Settlement set forth in the Stipulation, and any order or proceedings relating to such applications, or any appeal from any order relating thereto or reversal or modification thereof, shall not operate to terminate or cancel the Stipulation, or affect or delay the finality of the Order and Final Judgment approving the Stipulation and the Settlement. 69. Settling Defendants and Settling Defendants' Counsel shall have no responsibility for, and no liability whatsoever, with respect to: a) any payment to Lead Plaintiff or Lead Counsel or any other counsel or person who receives payment from the Settlement Fund; or b) the allocation among Lead Counsel and other counsel and/or any other person who may assert some claim thereto, of any fee and expense award that the Court may make in the Action, and Settling Defendants take no position with respect to such matters. DISTRIBUTION TO AUTHORIZED CLAIMANTS 70. Lead Counsel will apply to the Court for an order approving the Claims Administrator s determinations concerning the acceptance and rejection of the Claims submitted, and approving any fees and expenses not previously applied for (including the fees and expenses 19

20 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 20 of 31 of the Claims Administrator), and if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants. 71. The Claims Administrator shall determine each Authorized Claimant s pro rata share of the Net Settlement Fund based upon each Authorized Claimant s Recognized Claim, as defined in the Plan of Allocation that is approved by the Court. Each Authorized Claimant shall be allocated a pro rata share of the Net Settlement Fund based on that Authorized Claimant s Recognized Claim compared to the total Recognized Claims of all Authorized Claimants. 72. The Plan of Allocation is not a necessary term of this Stipulation and it is not a condition of this Stipulation that any particular Plan of Allocation be approved. 73. The Released Parties shall not be entitled to get back any of the settlement monies on or after the Effective Date. TERMS OF PRELIMINARY ORDER 74. Promptly after this Stipulation has been fully executed, Lead Counsel and Settling Defendants' Counsel shall jointly apply to the Court for entry of a Preliminary Order, substantially in the form attached as Exhibit D. TERMS OF ORDER AND FINAL JUDGMENT 75. If the Settlement contemplated by this Stipulation is preliminarily approved by the Court, Lead Counsel and Settling Defendants' Counsel shall request that the Court enter an Order and Final Judgment substantially in the form attached as Exhibit E. SUPPLEMENTAL AGREEMENT 76. Simultaneously with the execution of the Stipulation, Lead Counsel and Settling Defendants' Counsel are executing a Supplemental Agreement setting forth certain conditions under which this Settlement may be terminated by Settling Defendants if Class Members who, as 20

21 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 21 of 31 determined from their valid requests for exclusion, held in excess of a certain number of shares of Ideation or SearchMedia securities, validly exclude themselves from the Class. The Supplemental Agreement shall not be filed with the Court unless required by the Court or a dispute arises as to its terms. In the event of a termination of this Settlement pursuant to the Supplemental Agreement, this Stipulation shall be void, except that the provisions of shall apply. Notwithstanding this, the Stipulation shall not become null and void as a result of the election by the Settling Defendants to exercise their option to withdraw from the Stipulation pursuant to the Supplemental Agreement until the conditions set forth in the Supplemental Agreement have been satisfied. WAIVER OR TERMINATION 77. Settling Defendants or Lead Counsel shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so to all other parties to the Stipulation within 30 days of: (a) the Court s refusal to enter the Preliminary Order in any material respect without leave to resubmit the Settlement for preliminary approval in a form that Settling Defendants and Lead Counsel, on behalf of the Class Members, agree upon; (b) the Court s refusal to approve this Stipulation or any material part of it; (c) the Court's refusal to enter the Bar Order contained in paragraph 53 above; (d) the Court s refusal to enter the Order and Final Judgment approving the Settlement; (e) the date upon which the Order and Final Judgment is modified or reversed in any material respect by the Eleventh Circuit Court of Appeals or the United States Supreme Court; (f) Settling Defendants election to withdraw from the Settlement pursuant to the Supplemental Agreement; or (g) Settling Defendants refusal to enter into a litigation release with their insurers in a mutually acceptable form. However, any decision with respect to an application for Counsel Fees and Expenses or Representative 21

22 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 22 of 31 Reimbursement, or with respect to any Plan of Allocation, shall not be considered material to the Settlement or this Stipulation and shall not be grounds for termination. 78. Except as otherwise provided by this Stipulation, in the event the Settlement is terminated, then the parties to this Stipulation shall be deemed to have reverted to their respective statuses in the Action as of September 21, 2011 and, except as otherwise expressly provided: a) The parties to this Stipulation shall proceed in all respects as if this Stipulation and any related Judgments or Orders entered by the Court are vacated, nunc pro tunc; b) Neither the facts nor the specific terms of the Stipulation or Settlement shall be admissible in any action or proceeding; and c) The Settlement Fund and any interest earned on it, less any Taxes, Tax Expenses, Administration Expenses and Notification Costs shall be returned to Settling Defendants within 7 business days of the termination of the Settlement. If the Administration Expenses and Notification Costs deducted from the Settlement Fund exceed $100,000 and the Settling Defendants' Counsel did not approve such excessive deductions, Lead Counsel shall be obligated to reimburse the Settlement Fund for the amount deducted in excess of $100,000. At the written request of Settling Defendants' Counsel, the Escrow Agent or its designee shall apply for any tax refund owed to the Settlement Fund and pay the proceeds, after deduction of any Tax Expenses, to Settling Defendants. NO ADMISSION OF WRONGDOING 22

23 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 23 of Settling Defendants expressly deny all charges of wrongdoing or liability asserted against them in the Action. Settling Defendants also deny the allegations that Lead Plaintiff or the Class have suffered damage arising out of the conduct, statements, acts, or omissions to act of the Settling Defendants, or that Lead Plaintiff or the Class were harmed by the conduct of the Settling Defendants alleged in the Action. Nonetheless, Settling Defendants have concluded that further conduct of the Action against them would be protracted and expensive, and that it is desirable that the claims asserted against them in the Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Stipulation. Settling Defendants also have taken into account the uncertainty and risks inherent in any litigation, especially in complex cases like this Action. Settling Defendants have therefore determined that it is desirable and beneficial to them that the claims asserted against them in the Action be settled in the manner and upon the terms and conditions set forth in this Stipulation. 80. Lead Plaintiff believes that the claims asserted in the Action have merit and that the evidence developed to date supports the claims. However, Lead Plaintiff and Lead Counsel recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the Action against the Settling Defendants through trial and through appeals. Lead Plaintiff and Lead Counsel have also taken into account the uncertain outcome and the risk of any litigation, especially in complex actions such as this Action, as well as the difficulties and delays inherent in such litigation. Lead Plaintiff has therefore determined that it is desirable and beneficial that the claims against the Settling Defendants be settled in the manner and upon the terms and conditions set forth in this Stipulation. 81. This Stipulation, whether or not consummated, and any proceedings taken pursuant to it: 23

24 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 24 of 31 (a) shall not be offered or received against the Released Parties as evidence of, or construed to be evidence of, any presumption, concession, or admission by the Released Parties with respect to the truth of any fact alleged in the Action or the validity of any claim that has been or could have been asserted in the Action, or the deficiency of any defense that has been or could have been asserted in the Action, or of any liability, negligence, fault, or wrongdoing of the Released Parties; (b) shall not be offered or received against the Released Parties as evidence of a presumption, concession or admission of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any of the Released Parties; (c) shall not be offered or received against any of the Released Parties 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 Released Parties, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; provided, however, that if this Stipulation is approved by the Court, the Released Parties may refer to it to effectuate the liability protection granted them hereunder; (d) shall not be construed against any of the Released Parties as an admission or concession that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial; and (e) shall not be construed as or received in evidence as an admission, concession or presumption against any of the Class Members that any of their claims are 24

25 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 25 of 31 without merit, or that any defenses asserted by Settling Defendants have any merit, or that damages recoverable under the Complaint would not have exceeded the Settlement Fund. OBLIGATIONS OF THE RELEASED PARTIES 82. Settling Defendants shall be obligated to cause to be paid the Cash Settlement Amount into the Settlement Account. Settling Defendants and Settling Defendants' Counsel shall also cooperate in the production of information with respect to the identification of Class Members from Ideation s and SearchMedia's records. 83. Except as specifically provided by the terms of this Stipulation or otherwise mandated by law, the Released Parties shall have no obligation or responsibility in connection with providing Notice to the Class, the administration of the Settlement or the Claims process, the investment or administration of the Settlement Fund, the payment of Taxes or Tax Expenses from the Settlement Fund, reviewing or challenging Proofs of Claim submitted to the Claims Administrator, or disbursement of the Net Settlement Fund to Authorized Claimants, and shall have no liability whatsoever to any person, including, but not limited to, the Class Members, in connection with any such function or responsibility. Notwithstanding the foregoing, Settling Defendants shall be responsible for providing any and all notifications required under 28 U.S.C Settling Defendants agree that, in the event Lead Plaintiff pursues this Action against the Non-Settling Defendants, any discovery requests issued in this Action by Lead Plaintiff may be served upon Settling Defendants through Settling Defendants' Counsel, but Settling Defendants reserve all their rights to object to, or otherwise challenge, such discovery requests. 25

26 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 26 of 31 MISCELLANEOUS PROVISIONS 85. The Court shall retain jurisdiction over all parties to the Settlement (including all Claimants and Class Members) and all matters relating to the Settlement, and shall retain exclusive jurisdiction to interpret the scope of the Bar Order contained in paragraph 53 above. 86. All of the exhibits attached to this Stipulation and the Supplemental Agreement referenced herein are incorporated by reference as if fully set forth herein. 87. If a case is commenced in respect of any Released Party contributing the Cash Settlement Amount under Title 11 of the United States Bankruptcy Code, or a trustee, receiver or conservator is appointed under any similar law, and in the event of the entry of a final order of a court of competent jurisdiction determining the transfer to the Settlement Account or any portion thereof by or on behalf of such Released Party to be a preference, voidable transfer, fraudulent transfer or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited to the Settlement Account by others, then, at the election of Lead Counsel, the parties shall jointly move the Court to vacate and set aside the releases given and Judgment entered in favor of the Settling Defendants pursuant to this Stipulation, which releases and Judgment shall be void, and the parties shall be restored to their respective positions in the litigation as of September 21, 2011 and any cash amounts in the Settlement Account shall be returned within 7 business days. 88. The parties to this Stipulation agree that, other than disclosures required by law, any public comments from the parties regarding this resolution will not substantially deviate from words to the effect that the parties have reached a mutually acceptable resolution by way of a mediated settlement that will avoid protracted and expensive litigation, and that the parties are satisfied with this resolution. Settling Defendants retain the right to deny that the claims 26

27 Case 1:11-cv KMW Document 92 Entered on FLSD Docket 11/30/2011 Page 27 of 31 advanced in the Action against them were meritorious and that they have retained the right to continue prosecuting the Arbitration Claims. 89. This Stipulation may not be modified or amended, nor may any of its provisions be waived except by a writing signed by all parties or their successors-in-interest, or by Order of the Court. 90. The headings in this Stipulation are used for the purpose of convenience only and are not meant to have legal effect. 91. The waiver by one party of any breach of this Stipulation by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation. 92. This Stipulation and its exhibits, and the Supplemental Agreement, constitute the entire agreement among the parties to this Stipulation concerning the Settlement of the Action, and no representations, warranties, or inducements have been made by any party hereto concerning this Stipulation and its exhibits and the Supplemental Agreement other than those contained and memorialized in such documents. 93. This Stipulation may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument. 94. This Stipulation shall be binding upon, and inure to the benefit of, the successors and assigns of the parties to it. 95. The construction, interpretation, operation, effect and validity of this Stipulation, and all documents necessary to effectuate it, shall be governed by the internal laws of the State of Florida without regard to conflicts of laws, except to the extent that Federal law requires that Federal law governs. 27