STATES UNITED DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 07-61333-CIV-HUCK/O SULLIVAN DENRA MAY, PHILIP MAY, STEPHANIE ) MAY, MICHAEL NEWMAN, SCOTT JAMES, ) LEONARD GREEN, WENDY GREEN, BRETT ) FRIEDMAN , LANDON AGOADO , BRIAN ) NOONAN, TRENTON MARTIN, KATHRYN ) MARTIN, KRISTEN MARTIN , and DONNA ) AlKMAN, on behalf of themselves and all others) similarly situated, ) Plaintiffs,
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DAVID C. LEVY, LES GARLAND, MARC GELBERG, GREGORY R. CATINELLA, JOHN W. POLING, D. PATRICK LAPLATNEY, CELESTINE F. SPODEN, JOHN P. GRANDINETTI, and THE TUBE MEDIA CORP., Defendants. ------------- x NOTICE OF CLASS ACTION SETTLEMENT TO: ALL PERSONS AND ENTITIES WHO PURCHASED COMMON STOCK ISSUED BY THE TUBE MEDIA CORP. ("TUBE MEDIA") DURING THE PERIOD FROM AUGUST 19, 2005 THROUGH AND INCLUDING NOVEMBER 21, 2006.
YOU ARE HEREBY NOTIFIED that a Settlement Hearing will be held on October 3, 2008, at 9:00 a.m., before the Honorable Paul C. Huck, United States District Judge, at the Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami Avenue, Courtroom 13-2, Miami, Florida 33128. The purpose of the Settlement Hearing is to determine, among other things: (a) whether the Settlement should be approved as fair, reasonable and adequate; (b) whether the proposed plan for distributing the proceeds of the Settlement (the "Plan of Allocation") is fair, reasonable and adequate; (c) whether the Action should be dismissed with prejudice; (d) whether the release by the plaintiffs in the Class Action and the members of the Class who do not request exclusion therefrom of the Released Parties should be approved; and, (e) whether the application of the Lead Plaintiffs' Counsel for an award of attorneys' fees, costs and expenses should be approved. The Court may adjourn or continue the Settlement Hearing without further notice to the Class. YOUR RIGHTS MAY BE AFFECTED BY THIS LITIGATION. PLEASE READ THIS NOTICE CAREFULLY. TO CLAIM YOUR SHARE OF THE SETTLEMENT PROCEEDS , YOU MUST SUBMIT A VALID PROOF OF CLAIM FORM POSTMARKED ON OR BEFORE NOVEMBER 17, 2008. For further information about this Action you may contact Lead Plaintiffs' Counsel at the following address and telephone number: Julie Prag Vianale, Vianale & Vianale LLP, 2499 Glades Road, Suite 112, Boca Raton, Florida 33431, [phone]. CERTAIN DEFINITIONS Many of the defined terms used in this Notice are set forth in quotation marks and/or parentheses in the body of this Notice. The following defined terms are also used in this Notice: "Class" means all Persons who purchased The Tube Media Corp. ("Tube Media") common stock during the Class Period. The following Persons are excluded from the Class: Defendants; members of the immediate family (parents, spouses, siblings and children) of any individual Defendant, any subsidiary or affiliate of Tube Media, and the directors and executive officers of Tube Media or its subsidiaries and affiliates, or any entity in which any Defendant has a controlling interest, and the legal representatives, heirs, successors and assigns of any excluded person. "Class Escrow Account" means an interest-bearing escrow account which shall be maintained by Plaintiffs' Lead Counsel until the Effective Date pursuant to the terms of the Settlement Agreement. "Class Period" means the period of time from August 19, 2005 through and including November 21, 2006.
"Defendants" means The Tube Media Corp., David C. Levy, Les Garland (a/k/a Les Sweckard), Marc Gelberg, Gregory R. Catinella, John W. Poling, D. Patrick LaPlatney, Celestine F. Spoden and John Grandinetti. The "Effective Date" means the date on which the Settlement contemplated by the Settlement Agreement shall become final and binding on all of the parties. "Exchange Act" is the Securities Exchange Act of 1934, the federal securities statute that the Class Plaintiffs allege the Defendants violated. "Final" means that with respect to any court order, including but not limited to the Final Judgment Order, that such order represents a final and binding determination of all issues within its scope and is not subject to further review on appeal or otherwise. Without limitation, an order (including the Final Judgment Order) becomes "Final" when: (a) the date as of which the time to seek review, alteration, amendment or appeal of the Court's order has expired without any review, alteration, amendment or appeal having been sought or taken; or (b) if a motion or other application for review, alteration, amendment or appeal is filed, sought or taken, the date as of which such request for review, alteration, amendment or appeal shall have been finally determined in such a manner as to affirm the Court's original order in its entirety and the time, if any, for commencing any further appeal has expired. For purposes of this definition, an "appeal" includes appeals as of right, discretionary appeals, interlocutory appeals, proceedings involving writs of certiorari, mandamus, or prohibition, and any other proceedings of like kind. Any appeal or other proceedings pertaining to any order adopting or approving a plan of allocation or to any order issued in respect of any application by Class Plaintiffs' Counsel for attorneys' fees and/or expenses, shall not in any way delay or preclude the Final Judgment Order from becoming Final. "Final Judgment Order" means the Court's order of judgment and dismissal with prejudice approving the settlement of the Class Action, which is substantially in the form attached to the Settlement Agreement as Exhibit B. "Insurer" means Tube Media's directors and officers' insurance policy carrier, Navigators Insurance Company. "Lead Plaintiffs' Counsel " means Vianale & Vianale LLP. "Person" means an individual, corporation, limited or general partnership, association, trust, joint venture, or any other entity or organization, including a governmental or political subdivision or an agent or instrumentality thereof, and their heirs, executors, successors and assigns. "Released Parties" means Tube Media, David C. Levy, Les Garland (a/k/a Les Sweckard), Gregory R. Catinella, John W. Poling, Patrick LaPlatney, Celestine F. Spoden, Marc Gelberg and John Grandinetti, and any of their present or former spouses, heirs, executors, estates, administrators, any entity in which a Defendant has or had a controlling interest, any members of the individual Defendants' immediate families, or any trust of which any individual Defendant is or was the settlor or which is or was for the benefit of any individual Defendant and/or member(s) of his or her family, and, with respect to all Defendants, each of his, her or its present and former attorneys, legal representatives, and assigns in connection with the Litigation, and all past and present directors, officers, agents, servants, employees, affiliates, insurers and attorneys. "Settled and Released Claims" means any and all claims, debts, demands, rights or causes of action or liabilities whatsoever (including but not limited to, any claims for damages, interest, attorneys' fees, expert or consulting fees, and any other costs, expenses or liability whatsoever), whether based on federal, state, local, statutory or common law or any other law, rule or regulation (whether foreign or domestic), including both known claims and Unknown Claims (as defined below), accrued claims and unaccrued claims, foreseen claims and unforeseen claims, matured claims and not matured claims, (i) that have been asserted in this Class Action by the Class Members or any of them against any of the Released Parties, or (ii) that could have been, or could in the future be, asserted in any forum by the Class Members or any of them against any of the Released Parties which arise out of or relate in any way to the allegations, transactions, conduct, facts, matters or occurrences, representations or omissions involved, set forth, referred to or that could have been asserted in the Class Action and relate to the purchase, transfer, acquisition, holding, or sale of Tube Media common stock, except claims relating to the enforcement of the Settlement or Settlement Agreement. With respect to the above, it is the intention of the Lead Plaintiffs, on behalf of themselves and all other Class Plaintiffs and Class Members to expressly waive and relinquish, to the fullest extent permitted by law: (a) the provisions, rights, and benefits of Section 1542 of the California Civil Code, 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"; and (b) the provisions, right and benefits of any similar statute or common law of any other jurisdiction that may be, or may be asserted to be, applicable. "Settling Class Member" means each and every Person who is a member of the Class who does not request to be excluded from the Class pursuant to a proper and timely written request for exclusion postmarked on or before the date set by the Court, and submitted according to the requirements set forth in the Preliminary Order and the Notice. "Settling Defendants" means The Tube Media Corp., David C. Levy, Les Garland (a/k/a Les Sweckard), Marc Gelberg, Gregory R. Catinella, John W. Poling, D. Patrick LaPlatney, Celestine F. Spoden. "Settling Parties" means the Settling Defendants and the Settling Plaintiffs. "Settling Plaintiffs" means all Class Plaintiffs, and Settling Class Members. 2
"Unknown Claims" means any and all Settled and Released Claims which any Lead Plaintiff or 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 Settled Defendants ' Claims which any Defendant does not know or suspect to exist in his , her or 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 such Unknown Claims the Parties stipulate and agree that upon the Effective Date , the Lead Plaintiffs and Defendants shall expressly, and each Class Member and Released Party shall be deemed to have , and by operation of the Final Judgment Order shall have , expressly waived any and all provisions , rights and benefits conferred by Cal. Civ. Code 1542, or by any law of any state or territory of the United States , or principle of common law, which is similar, comparable, or equivalent to Cal. Civ. Code 1542, which provides 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. SUMMARY OF THE SETTLEMENT The Lead Plaintiffs, purchasers of Tube Media common stock during the Class Period, have agreed to the Settlement of this Action for six hundred thousand dollars ($600,000), including any award of attorneys' fees and expenses. As part of this Settlement, the Class Members will release the Defendants and others (the "Released Parties," as defined above) from liability. This Notice is not an expression of any opinion by the Court about the fairness of the Settlement or about the merits of any of the claims or defenses asserted by the Lead Plaintiffs or Defendants (collectively, the "Parties"). Those who purchased during the Class Period any common stock publicly issued by Tube Media are Class Members unless they are members of any excluded group defined by the Class. If the Settlement is approved by the Court, Class Members who submit a valid and timely Proof of Claim and Release will receive a pro rata share of the Gross Settlement Fund, minus court-approved fees, costs and expenses, pursuant to the Court-approved Plan of Allocation. Lead Plaintiffs' Counsel will also apply to the Court for attorneys' fees of no greater than thirty percent (30%) of the Gross Class Settlement Fund, for the reimbursement of their out-of-pocket expenses in an amount not to exceed $50,000 and payments and/or expense reimbursements to the Lead Plaintiffs in connection with the prosecution of this Class Action. Under no circumstances will you or any other Class Member be personally liable for any attorneys' fees or expenses awarded to the Lead Plaintiffs' Counsel. Ill. BACKGROUND OF THE CLASS ACTION A. The Commencement Of The Class Action And The Naming Of Lead Plaintiffs And Lead Plaintiffs Counsel On September 19, 2007, investors commenced a putative class action against Tube Media and its former officers and directors David C. Levy, Les Garland, Marc Gelberg, Gregory R. Catinella, John W. Poling, D. Patrick LaPlatney, Celestine F. Spoden. By Order, dated December 11, 2007, the Court named Brett Friedman, Trent and Kathy Martin, Wendy Rhodes Frisone and Philip May ("Plaintiffs") as lead plaintiffs for the Class, and the law firm of Vianale & Vianale LLP as Plaintiffs' Lead Counsel. The Plaintiffs filed an amended complaint on January 14, 2008 alleging violations of Section 10(b) of the Exchange Act, Rule 1 Ob-5 promulgated thereunder, and Section 20(a) of the Exchange Act. Among other things, the Lead Plaintiffs alleged that the Defendants engaged in a fraud by failing to inform shareholders that the Company had illegally failed to remit payroll taxes, and had failed to inform shareholders of prior legal entanglements of David Levy and John Grandinetti. Plaintiffs failed in their attempt to serve the Amended Complaint on Defendant John P. Grandinetti (who was added as a defendant by the amended complaint). Mr. Grandinetti has not appeared in the Litigation, and is not a party to the Settlement Agreement. The case will, however, be dismissed as to him, as well as the other defendants. B. The Settling Defendants Motions To Dismiss In February, 2008, the Settling Defendants moved to dismiss this Action. In their motions to dismiss, the Settling Defendants argued, among other things, that the Lead Plaintiffs had failed to adequately allege that the defendants made any materially false statements and failed to allege that any actionable losses resulted from the alleged misstatement. These motions were fully submitted and awaiting a decision from the Court when the settlement was reached. C. Settlement Discussion After the motions to dismiss were fully briefed, the Settling Parties agreed to engage in discussions regarding a possible settlement of the case. As a result of full and frank discussions regarding the strengths and weaknesses of the case, Plaintiffs and the Settling Defendants agreed in principle to settle the Class Action for the sum of six hundred thousand dollars ($600,000). IV. THE TERMS OF THE SETTLEMENT A. The Settlement Consideration In full settlement and compromise of all Settled and Released Claims against the Released Parties by the Class Plaintiffs and the Settling Class Members, and subject to the terms and conditions of the Settlement Agreement, the 3
Settling Defendants have paid into the Class Escrow Account six hundred thousand dollars ($600,000) (hereinafter, the "Gross Class Settlement Fund"). The funds in the Class Escrow Account are invested and shall be re-invested in short-term United States Agency or Treasury Securities (or a mutual fund invested solely in such instruments) or, in the case of any funds held in escrow in an amount of less than $100,000, in an interest-bearing bank account insured by the FDIC. The Gross Class Settlement Fund shall be used to pay, among other things: (a) Administration Costs; (b) any taxes owed on the income of the Gross Class Settlement Fund and any reasonable expenses incurred in connection with the calculation or payment of such taxes; (c) the Lead Plaintiffs' Counsel's fee and expense award discussed below in Section X; and (d) reimbursements to the Lead Plaintiffs in connection with the prosecution of this Class Action. The balance of the Gross Class Settlement Fund after those payments is the "Net Class Settlement Fund." As soon after the Effective Date as is possible, the Net Class Settlement Fund will be distributed, according to the Plan of Allocation described below, to the Qualified Claimants. The Lead Plaintiffs estimate that the average distribution to each Class Member that files a valid and timely Proof of Claim ("Qualified Claimants") will be approximately $ 0.13 per allegedly damaged Tube Media share (before the deduction of court-approved fees, costs and expenses). The actual recovery of Qualified Claimants will depend upon a number of variables, including: the number of Qualified Claimants; the amount of Tube Media common stock that they purchased; the timing of their purchases and sales (if any); the expenses of providing notice to the Class and administering the claims process (the "Administration Costs"); the amount of attorneys' fees and expenses awarded by the Court; and the amount of interest (if any) paid to the Class. B. The Releases If the Settlement is approved, the Court will enter the Final Judgment Order, which provides for: (a) all of the Settling Class Members to release all of the Settled and Released Claims against all of the Released Parties; and (b) all of the Released Parties to release all of the Settled Defendants' Claims upon the occurrence of the Effective Date. Each Class Member is hereby advised of the statutory language of California Civil Code Section 1542, which provides as follows: 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. Class Members are further advised of the potential existence of similar, comparable or equivalent statutes or common law principles in other states. Submission of a Proof of Claim constitutes a Class Member's certification that: (a) the Class Member has waived any rights or benefits, if available, under Section 1542 of the California Civil Code or any similar, comparable or equivalent state statutes or principles of common law; (b) the Class Member expressly assumes all risks for claims heretofore and hereafter arising, whether known or Unknown, from the subject matter of the Settled and Released Claims; and (c) if the facts with respect to which the release provided for under the Settlement Agreement is given or the dismissal with prejudice contained in the Final Judgment Order is entered are found hereafter to be other than, or different from, the facts the Class Member now believes to be true, the Class Member expressly accepts and assumes the risk of such possible differences and facts, and agrees that the Settled and Released Claims shall be and remain released notwithstanding such differences in facts. In order to receive a payment in connection with the Settlement, a Class Member must submit a valid and timely Proof of Claim and Release form. The Lead Plaintiffs' Counsel shall have the right, but not the obligation, to waive what they deem to be formal or technical defects in any Proofs of Claim filed by Class Members in the interests of achieving substantial justice. The Court will retain jurisdiction over the Class Action to resolve the validity of any disputes that arise regarding the validity of Proofs of Claim submitted by Class Members. The Lead Plaintiffs and the Released Parties may, under certain circumstances defined in the Settlement Agreement, terminate the Settlement. V. THE LEAD PLAINTIFFS REASONS FOR SETTLEMENT The Lead Plaintiffs and lead counsel for the Class (the "Lead Plaintiffs' Counsel") believe that the claims asserted in the Class Action have merit and believe that the evidence that they collected supports the claims they have alleged. Nevertheless, the Lead Plaintiffs and the Lead Plaintiffs' Counsel believe that the Settlement represents a substantial recovery for the Class and is in the best interests of all Class Members. The Lead Plaintiffs' Counsel considered numerous factors in assessing the merits of the Settlement, although none of those factors, standing alone, was determinative. Among other things, the Lead Plaintiffs have been able to conduct a substantial investigation of the facts related to their That claims. investigation has included, among other things: the review of hundreds of pages of filings made by Tube Media with the SEC; the review of numerous news stories available on multiple databases concerning Tube Media; and extensive investigation of prior legal proceedings involving certain of the Defendants and other persons associated 4
with Tube Media . Moreover, the Lead Plaintiffs' Counsel have conducted substantial legal research to assist in analyzing the legal bases of the Class ' s claims against the Defendants. The Lead Plaintiffs ' Counsel believe that the foregoing analysis and investigation provided them with an adequate basis for advising the Class Plaintiffs to accept the terms of the proposed settlement of the Class Action with the Released Parties as set forth herein . Because of the risks associated with continuing to litigate and proceeding to trial, there was a danger that the Class Members would not have prevailed on any of their claims against the Defendants, in which case Class Members would have received no compensation from the Released Parties . Additionally, the Class had not yet been certified at the time the Settlement was reached. The Defendants would have opposed the certification of the Class had the Settlement not been reached and appealed the certification of the Class had such a decision been reached by the Court. Had the Class not been certified , or had the Class been decertified on appeal , the members of the Class would have received no compensation from the Released Parties . Moreover, the Settling Defendants ' motions to dismiss the complaint in the Class Action were undecided when the case was settled . Had these motions been granted , the Class would have received nothing . The Lead Plaintiffs' Counsel also considered the fact that the primary source of funds available to the Settling Defendants to resolve the claims asserted against them in the Class Action were the proceeds of a directors ' and officers' liability insurance policy. The Gross Class Settlement Fund represents a substantial percentage of those proceeds . Even if the Lead Plaintiffs had prevailed at summary judgment and at trial , there is a danger that the total damages that would be awarded to the Class would be less than the settlement consideration provided for in the Settlement . Among other things , the Settling Defendants ' costs of defending against the Class Action would have consumed large amounts of the available insurance proceeds that are presently available to fund the Settlement. Additionally, even if the Lead Plaintiffs successfully proved liability on the part of the Defendants at trial , the damages phase of the trial, or a subsequent appeal , could result in a damage award materially less than the settlement consideration provided for in the Settlement. VI. SETTLING DEFENDANTS REASONS FOR SETTLEMENT The Settling Defendants have denied and continue to deny all charges of fault, wrongdoing or liability against them arising out of any of the conduct , statements , acts or omissions alleged , or that could have been alleged , in this Action. The Settling Defendants further rely on those portions of the Settlement Agreement that indicate that their entry into the Settlement shall not be construed or be deemed to be evidence or an admission or a concession on the part of any Defendant of any fault or liability or damages whatsoever, and the Settling Defendants do not concede any infirmity in the defenses which they have asserted or intended to assert in the Class Action . Nonetheless, the Settling Defendants have concluded that further litigation could be protracted and expensive , and that it is desirable that the Class Action be fully and finally settled in the manner and upon the terms and conditions set forth in the Settlement Agreement. The Settling Defendants have also taken into account the uncertainty and risks inherent in any litigation , especially in complex cases like the Class Action. The Settling Defendants have therefore determined that it is desirable and beneficial for them to settle the Class Action in the manner and upon the terms and conditions set forth in the Settlement Agreement. THE COURT HAS NOT FINALLY DETERMINED THE MERITS OF THE PLAINTIFFS' CLAIMS OR THE DEFENDANTS' DEFENSES THERETO. THIS NOTICE DOES NOT IMPLY THAT THERE HAS BEEN OR WOULD BE ANY FINDING OF VIOLATION OF THE LAW OR THAT RECOVERY COULD BE HAD IN ANY AMOUNT IF THE ACTION WERE NOT SETTLED. PLAN OF ALLOCATION OF SETTLEMENT PROCEEDS AMONG CLASS MEMBERS The Net Settlement Fund will be allocated among the Authorized Claimants in accordance with this " Plan of Allocation ." The amount allocated to each Authorized Claimant is referred to as the Authorized Claimant' s "Payable Claim." The Plan of Allocation is based upon Plaintiffs ' Lead Counsel's assessment of the merits and the relative strengths and weaknesses , including recoverable damages , of the claims of the members of the Class. An Authorized Claimant's recognized loss ("Recognized Loss") is determined by the date (s) the Authorized Claimant purchased or sold any shares of Tube Media stock during the Class Period , as set forth below: A. For shares sold at a profit during the Class Period , the Recognized Loss is zero; B. For shares purchased between August 19, 2005 and November 20, 2006 , inclusive, and held at the close of trading on November 20, 2006, the Recognized Loss shall be the difference between the purchase price per share and $0.66 per share , the closing price of the stock on November 21, 2006. C. If the Settlement Fund is not exhausted as a result of payments made under ( B) above , then any remaining funds shall be distributed to Authorized Claimants who purchased shares between August 19 , 2005 and November 20, 2006 and sold those shares prior to the close of trading on November 20, 2006. The recognized loss for such claimants shall be the lesser of $0.66 per share or the difference between the purchase price per share and the sale price per share. For purposes of applying the Plan of Allocation , purchases and sales of Tube Media ' s stock will be matched, on a "first-in, first-out" ("FIFO") basis , by matching the first shares sold against the first shares purchased . Sales will be first applied to shares held at the close of trading on August 18, 2005. The matching under FIFO will be applied irrespective of the different accounts in which the shares of Tube Media stock were purchased and sold unless the title or ownership of the accounts differed. The date of purchase or sale is the "contract" or "trade" date as distinguished from the "settlement date." 5 VII.
You can only make a claim for shares of Tube Media stock you purchased with cash during the Class Period. Tube Media stock acquired in whole or part in return for services rendered to the Company, in return for barter, or in return for any other form of non-cash consideration will not be eligible for recovery in this case. The restrictions on computing Recognized Losses set out in the 2 bullet points below apply to all claims. As a practical matter, however, they apply primarily to certain transactions engaged in by sophisticated traders or certain corporate or institutional Claimants: "Short" sales will not be recognized for any amount of loss on the cover or purchase transaction, and no Recognized Loss will be computed for any such covering purchase transaction. No Recognized Loss will be computed for any option premium paid or received portion where the shares of Tube Media stock were purchased or sold by reason of having exercised or been assigned an option.
An Authorized Claimant's "Payable Claim" represents a percentage of the Authorized Claimant's total Recognized Loss. This percentage is determined by dividing the Net Settlement Fund by the total Recognized Loss sustained by all Authorized Claimants. The resulting fraction, or payout percentage, is then multiplied by each Authorized Claimant's Recognized Loss to determine the amount of each Claimant's Payable Claim, subject to the further limitations below. In the interest of economy, no payment will be made to any Authorized Claimant whose Payable Claim would be less than $10 based on the initial allocation of the Net Settlement Fund to the Authorized Claimants. Plaintiffs' Lead Counsel reserves the right to seek permission from the Court, without further notice to the class, to increase in an equitable manner the amounts claimants will be eligible to receive, up to the total loss amount, in the event that distribution pursuant to this Plan of Allocation leaves an excess of undistributed funds. If you inherited or received a gift of Tube Media stock during the Class Period, that inheritance or gift is not considered a purchase of Tube Media stock unless your ancestor or donor was the actual purchaser of Tube Media stock during the Class Period. You, as a recipient of a gift or inheritance, and the original purchaser may not both file a claim with regard to the same shares of Tube Media stock. If both you and the donor (or you and your ancestor's estate) make such a claim, only the claim filed by the recipient (or heir) will be honored. Shares "transferred into," "delivered into" or "received into" the Claimant's account, will not be considered as a purchase of shares unless the Claimant submits documentation demonstrating that the original purchase of these shares occurred during the Class Period. Also, shares purchased and subsequently "transferred out" or "delivered out" of Claimant's account will not be considered part of Claimant's claim, as the right to file for those shares belongs to the person or party receiving the shares. Nothing in this Plan of Allocation represents an admission by any of the Defendants that there is liability or damage of any kind as a result of the allegations in the Complaint or that the dollar amounts set forth in this Plan of Allocation reflect actual or potential damages to the Class. Payment in the manner set forth above will be deemed conclusive compliance with the Settlement Agreement as to all Authorized Claimants. All Class Members who fail to submit valid and timely Proofs of Claim will be barred from participating in the distribution of the Net Settlement Fund but otherwise will be bound by all of the terms of the Settlement Agreement, including the terms of any final orders or judgments entered and the releases given to Defendants and others. No Authorized Claimant will have any claim against Plaintiffs, Plaintiffs' Lead Counsel or the Claims Administrator, or any other agent designated by Plaintiffs' Lead Counsel based on distributions made substantially in accordance with the Settlement Agreement, the Plan of Allocation, and further orders of Court. In addition, in the interest of achieving substantial justice, Plaintiffs' Lead Counsel will have the right, but not the obligation, to waive what they deem to be formal or technical defects in any Proofs of Claim filed. VIII. THE PROOF OF CLAIM IN ORDER TO BE ELIGIBLE TO RECEIVE ANY PAYMENT IN CONNECTION WITH THE SETTLEMENT, YOU MUST COMPLETE AND RETURN THE ENCLOSED PROOF OF CLAIM FORM. THE PROOF OF CLAIM MUST BE: (A) SENT BY PRE-PAID FIRST-CLASS MAIL; (B) POSTMARKED ON OR BEFORE NOVEMBER 17, 2008; AND (C) ADDRESSED AS FOLLOWS: Tube Media Securities Litigation Settlement c/o Gilardi & Co. LLC P.O. Box 990 Corte Madera , CA 94976-0990 IF YOU DO NOT COMPLETE AND RETURN A PROPER PROOF OF CLAIM, YOU WILL NOT BE ENTITLED TO ANY SHARE OF THE SETTLEMENT PROCEEDS. IF YOU ARE A CLASS MEMBER AND DO NOT PROPERLY EXCLUDE YOURSELF FROM THE CLASS, THE COURT APPROVES THE SETTLEMENT AND THAT SETTLEMENT BECOMES FINAL, YOU WILL BE BOUND BY THE FINAL JUDGMENT ORDER, WHICH DISMISSES THE CLASS ACTION AGAINST THE DEFENDANTS ON THE MERITS AND WITH PREJUDICE AND RELEASES ALL OF THE SETTLED AND RELEASED CLAIMS AGAINST THE RELEASED PARTIES, EVEN IF YOU DO NOT FILE A PROOF OF CLAIM. IF YOU EXCLUDE YOURSELF, YOU WILL 6
NOT BE BOUND BY THE FINAL JUDGMENT ORDER, BUT YOU WILL NOT BE ENTITLED TO ANY SHARE OF THE SETTLEMENT PROCEEDS. Each Class Member who submits a Proof of Claim shall be deemed to have submitted to the jurisdiction of the Uni...