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Benjamin L. Padnos, Derivatively On Behalf of China Education Alliance, Inc v. Xiqun Yu

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


October 15, 2012

BENJAMIN L. PADNOS, DERIVATIVELY ON BEHALF OF CHINA EDUCATION ALLIANCE, INC., PLAINTIFF,
v.
XIQUN YU, ZIBING PAN, SUSAN LIU, CHANQING WANG, JAMES HSU, LIANSHENG ZHANG, AND YIZHAO ZHANG,
DEFENDANTS,
CHINA EDUCATION ALLIANCE, INC., A NORTH CAROLINA CORPORATION, NOMINAL DEFENDANT.

The opinion of the court was delivered by: Christina A. Snyder United States District Judge

JS-6

[PROPOSED] ORDER & FINAL JUDGMENT

WHEREAS plaintiff Benjamin L. Padnos, on behalf of himself individually and derivatively on behalf of nominal defendant China Education Alliance, Inc. ("CEU"), CEU, and defendants Xiqun Yu, Zibing Pan, Liansheng Zhang, and Yizhao Zhang (collectively, the "Settling Parties"), by and through their respective counsel, entered into a Stipulation of Settlement (the "Stipulation"), dated July 13, 2012, setting forth the terms and conditions of settlement (the "Settlement") of the above-captioned action (the "Action");

WHEREAS, on July 16, 2012, the Plaintiff filed an Unopposed Motion for Preliminary Approval of Proposed Settlement (the "Motion") seeking preliminary approval of the Settlement;

WHEREAS, on August 13, 2012, this Court entered an order preliminarily approving the Settlement (the "Preliminary Approval Order") and requiring that notice thereof be disseminated to all shareholders of CEU common stock as of the date of the execution of the Stipulation in accordance with the provisions of the Stipulation;

WHEREAS, on October 15, 2012, the Court held a hearing for the purpose of:

a. determining whether to finally approve the Settlement pursuant to Rule 23.1 of the Federal Rules of Civil Procedure as fair, reasonable, adequate, and in the best interests of CEU and its shareholders;

b. considering an Order and Final Judgment dismissing the Action with prejudice and releasing and enjoining prosecution of any and all claims to be released pursuant to the Stipulation;

c. determining whether to approve attorneys' fees and expenses;

d. determining whether to award plaintiff's incentive fee; and

e. hearing other such matters as the Court may deem necessary and appropriate.

WHEREAS the Court has reviewed and considered all documents, evidence, objections (if any) and arguments presented in support of or against the Settlement;

WHEREAS this matter is now before the Court for final approval of the proposed Settlement; and

NOW, THEREFORE, it is ORDERED, ADJUDGED AND DECREED that: 1. This Court has jurisdiction over the subject matter of this litigation and over all parties to the litigation.

2. All capital terms not otherwise defined herein shall have the meaning ascribed to them in the Stipulation.

3. The Court finds that notice of the proposed Settlement has been disseminated in compliance with the Preliminary Approval Order and such notice satisfies due process and Federal Rule Civil Procedure 23.1 and constitutes due and sufficient notice of all matters relating to the Settlement;

4. The Court further finds that the Plaintiff and Plaintiff's Counsel fairly represent the interests of CEU and its shareholders.

5. Pursuant to Federal Rule Civil Procedure 23.1, this Court hereby approves the Settlement as fair, reasonable, adequate and in the best interests of CEU and its shareholders, and the Settling Parties are directed to consummate the terms of the Settlement in accordance with the terms of the Stipulation.

6. Upon the Effective Date, Plaintiff, on his own behalf and derivatively on behalf of CEU and CEU's shareholders, shall have, and by operation of the Judgment shall be deemed to have, fully, finally, and forever released, relinquished and discharged all Released Claims (including Unknown Claims) against the Released Persons.

7. Upon the Effective Date, each of the Released Parties shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged Plaintiff and Plaintiff's Counsel from all Released Claims, including Unknown Claims.

8. Upon the Effective Date, each of the Individual Defendants and their Related Persons shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged CEU, its officers, directors and employees from any and all Released Claims.

9. Neither the Settlement of the Action nor any act performed or document executed pursuant to or in furtherance thereof:

(i) is or may be deemed to be or may be used as an admission of or evidence of the validity of any Released Claim or of any wrongdoing or liability of the Released Persons; or,

(ii) is or may deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Released Persons in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal.

10. The Court hereby approves the Fee and Expense Award in the amount of $250,000.00 in accordance with the Stipulation, and finds that the Fee and Expense Award is fair and reasonable.

11. The Court hereby approves the Incentive Award of $3,000.00 for the Plaintiff to be paid from the total Fee and Expense Award before distribution among Plaintiff's Counsel.

12. The Action and all claims asserted therein are hereby dismissed with prejudice.

13. In the event that the Settlement does not become Final, this Order and Final Judgment shall become null and void and shall be vacated; in such event, all orders entered and releases delivered in connection with the Settlement shall be null and void to the extent provided by and in accordance with the Stipulation.

14. The Court retains jurisdiction over all matters relating to the consummation of the Settlement.

15. There being no reason for delay, the Clerk of the Court is hereby directed pursuant to Federal Rules of Civil Procedure 54 to enter this Order and Final Judgment.

IT IS SO ORDERED.

20121015

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