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Huberman v. Tag-It Pacific

December 7, 2009

SETH HUBERMAN, ON BEHALF OF HIMSELF AND THE CERTIFIED CLASS, PLAINTIFFS,
v.
TAG-IT PACIFIC, INC., COLIN DYNE, MARK DYNE, RONDA FERGUSON AND AUGUST F. DELUCA, DEFENDANTS.



The opinion of the court was delivered by: The Honorable Manuel L. Real United States District Judge

CLASS ACTION

ORDER AND FINAL JUDGMENT

WHEREAS, pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure and by Order dated June 19, 2009, this Court certified the Action to proceed as a class action on behalf of the class consisting of all persons and entities who purchased or otherwise acquired Tag-It common stock on the open market between March 28, 2003 and August 22, 2005, inclusive (the "Class Period") and who were damaged thereby (the "Class") (excluding (i) Defendants; (ii) members of the immediate family of each of the Individual Defendants; (iii) any subsidiary or affiliate of Tag-It; (iv) the directors, officers, managing directors, principals and partners of Tag-It; (v) any entity in which any excluded person has a controlling interest; and (vi) the legal representatives, heirs, successors and assigns of any such excluded person); and

WHEREAS, this matter came before the Court for hearing pursuant to the Order of this Court, dated August 24, 2009, on the application of the Parties for final approval of the Settlement set forth in the Stipulation of Settlement dated as of July 31, 2009.

WHEREAS, on the 7th day of December, 2009, a hearing having been held before this Court : (1) to determine whether the terms and conditions of the Stipulation and the Settlement provided for therein are fair, reasonable, and adequate for the settlement of the claims asserted by the Class against the Defendants in the Class Action Complaint in the Action (the "Complaint") now pending in this Court under the above caption, including the release of the Released Claims against the Released Persons, including Defendants and the Related Parties, and whether the Settlement should be approved; (2) to approve the Plan of Allocation as a fair and reasonable method to allocate the Net Settlement Fund's proceeds among the members of the Class; (3) to determine the amount to award Plaintiffs' Counsel for attorneys' fees, reimbursement of expenses and other awards; (4) to determine the amount to award Lead Plaintiff pursuant to the Private Securities Litigation Reform Act; and (5) to enter judgment dismissing the Complaint with prejudice in favor of the Defendants and as against all persons or entities who are members of the Class herein who have not previously and effectively requested exclusion therefrom; and the Court having considered all matters submitted to it at the hearing and otherwise; and

WHEREAS due and adequate notice having been given to the Class as required in the Order for Notice and Hearing, entered on August 24, 2009, it appearing that a notice of the hearing in all material respects in the form approved by the Court, the Notice of Pendency and Proposed Settlement of Class Action and Settlement Hearing ("Notice") and Proof of Claim Form ("Proof of Claim") was mailed to all persons or entities reasonably identifiable, who purchased the common stock of Tag-It Pacific, Inc. (now known as Talon International, Inc.) ("Tag-It") on the open market between March 28, 2003 and August 22, 2005, inclusive (the "Class Period"), as shown by the records of Tag-It's transfer agent, at the respective addresses set forth in such records, and that a summary notice of the hearing in all material respects in the form approved by the Court was published in Investors' Business Daily, pursuant to the Order of the Court; and

WHEREAS, the Court having considered all papers filed and proceedings had herein and otherwise being fully informed; and

WHEREAS the Court having considered and determined the fairness, reasonableness and adequacy of the Settlement and of the award of attorneys' fees, expenses and other awards requested; and good cause appearing therefore;

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. This Order and Final Judgment ("Judgment") incorporates by reference the definitions in the Stipulation and all terms used herein shall have the same meanings as set forth in the Stipulation.

2. The Court has jurisdiction over the subject matter of the Action, the Lead Plaintiff, all Class Members, and the Defendants.

3. The Court reiterates its prior order certifying this action as a class action and finds that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the number of Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the Class; (c) the claims of the Court appointed Class Representative, Seth Huberman, are typical of the claims of the Class he represents; (d) the Class Representative has and will continue to fairly and adequately represent the interests of the Class; (e) the questions of law and fact common to the members of the Class predominate over any questions affecting only individual members of the Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby finally certifies this action as a class action on behalf of all persons and entities who purchased or otherwise acquired Tag-It Pacific, Inc. (now known as Talon International, Inc.) ("Tag-It") common stock on the open market during the period between March 28, 2003 and August 22, 2005, inclusive, and who were damaged thereby. Excluded from the Class are (i) Defendants; (ii) members of the immediate family of each of the Individual Defendants; (iii) any subsidiary or affiliate of Tag-It; (iv) the directors, officers, managing directors, principals and partners of Tag-It; (v) any entity in which any excluded person has a controlling interest; and (vi) the legal representatives, heirs, successors and assigns of any such excluded person. Also excluded from the Class are persons and entities who submitted valid and timely requests for exclusion in accordance with the Notice, who are listed on Schedule 1 hereto.

4. The Notice given to the Class was the best notice practicable under the circumstances, including the individual notice to members of the Class who could be identified through reasonable effort. The form, content and method of notifying the Class of the pendency and settlement of the action as a class action, the Settlement Hearing, and of the terms and conditions of the proposed Settlement, the applications for an award of Attorneys' Fees and Expenses, the Plan of Allocation, the application for awards for reimbursement of time and expense to the Lead Plaintiff, and other matters set forth in the Notice, to Persons entitled to such notice, met the requirements of Rule 23 of the Federal Rules of Civil Procedure, §21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7), as amended by the Private Securities Litigation Reform Act of 1995, due process, and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto. The notifications, along with their accompanying materials, to the Federal and/or State Officials fully apprised the appropriate officials of this settlement and fully complied with all the procedural and substantive requirements of the Class Action Fairness Act, 28 U.S.C. §§1711 et seq.

5. The Settlement set forth in the Stipulation is the product of substantial, good faith, arm's length negotiations, including ...


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