IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION

Filing 441

ORDER RE: Dismissal of remaining claims against defendant Antonio Canova re 440 Stipulation filed by Brocade Communications Systems, Inc.. Signed by Judge Charles R. Breyer on 4/13/09. (be, COURT STAFF) (Filed on 4/14/2009)

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DEWEY & LEBOEUF LLP Barbara A. Caulfield ([e-mail]) SBN 108999 Peter E. Root ([e-mail]) SBN 142348 1950 University Avenue, Suite 500 East Palo Alto, California 94303 Telephone: [phone] Facsimile: [phone] DEWEY & LEBOEUF LLP 1101 New York Avenue, N.W., Suite 1100 Washington, DC 20005 Telephone: [phone] Facsimile: [phone] DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, New York 10019 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Brocade Communications Systems, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE BROCADE COMMUNICATIONS SYSTEMS, INC. DERIVATIVE LITIGATION This Document Relates to: ALL ACTIONS Case No. C 05-02233 CRB STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST DEFENDANT ANTONIO CANOVA PURSUANT TO SETTLEMENT

STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST CANOVA CASE NO.: C-05-02233 CRB

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This Stipulation is made by and between plaintiff Brocade Communications Systems, Inc. ("Brocade"), through the Special Litigation Committee of its Board of Directors (the "SLC"), and defendant Antonio Canova ("Canova"). RECITALS WHEREAS, beginning in June 2005, certain shareholder derivative actions were commenced in the United States District Court for the Northern District of California asserting a variety of claims arising from Brocade's historical equity options compensation practices and related matters, which actions were assigned to this Court and consolidated as In re Brocade Communications Systems, Inc. Derivative Litigation, No. 05-cv-2233-CRB (the "Consolidated Federal Derivative Action"); WHEREAS, the SLC, acting on behalf of Brocade, filed a Second Amended Complaint in the Consolidated Federal Derivative Action on August 1, 2008, asserting claims on behalf of Brocade against ten defendants, including Canova; WHEREAS, on October 6, 2008, Canova and the other nine defendants each filed a motion to dismiss the Second Amended Complaint; WHEREAS, on December 12, 2008, this Court issued an Order, supplemented by an opinion issued January 6, 2009, in which the Court dismissed all claims against Canova with the exception of the Fifth, Sixth, Seventh, Eighth, and Eleventh Causes of Action alleging various breaches of fiduciary duty and unjust enrichment; WHEREAS, Brocade and Canova entered into a settlement agreement on January 30, 2009 (the "Settlement Agreement"); WHEREAS, on February 3, 2009, Brocade submitted a copy of the Settlement Agreement to this Court, and filed a motion for approval of the settlement and entry of a Complete Bar Order barring contribution claims; WHEREAS, on March 13, 2009, this Court entered an Order Approving Settlement And Entry Of Complete Bar Order; WHEREAS, Canova has made full payment of the settlement consideration that he agreed to pay in the Settlement Agreement; -1STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST CANOVA CASE NO.: C-05-02233 CRB

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WHEREAS, the Settlement Agreement provides that Brocade shall move the Court for an order dismissing with prejudice the remaining claims against Canova in the Consolidated Federal Derivative Action; WHEREAS, the Settlement Agreement provides that Canova has continuing cooperation obligations as set forth in paragraphs 3 and 4 of the Settlement Agreement, and that Brocade and Canova each may terminate the Settlement Agreement under certain circumstances, as provided in subparagraphs (a) and (b) of paragraph 10 of the Settlement Agreement; WHEREAS, the Settlement Agreement further provides that Brocade and Canova will request the Court to retain continuing and exclusive jurisdiction to enforce the Complete Bar Order and to adjudicate any claims relating to the interpretation of the Complete Bar Order and the Settlement Agreement; WHEREAS, Brocade and Canova request the Court to retain jurisdiction to enforce the terms of their Settlement Agreement and the Complete Bar Order under the authority of Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381-82 (1994). NOW, THEREFORE, Brocade and Canova, through their respective undersigned counsel, hereby stipulate, subject to the Court's approval, as follows: 1. All remaining claims against Canova in the Consolidated Federal Derivative Action,

i.e., the Fifth, Sixth, Seventh, Eighth, and Eleventh Causes of Action of the Second Amended Complaint, shall be and hereby are dismissed with prejudice. 2. Brocade and Canova shall comply with the terms of their Settlement Agreement, a

copy of which is attached and incorporated by reference as if fully set forth. 3. By consent of Brocade and Canova, the Court shall retain jurisdiction for purposes of

enforcing the terms of the Settlement Agreement and the Complete Bar Order.

-2STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST CANOVA CASE NO.: C-05-02233 CRB

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Dated: April 9, 2009

DEWEY & LEBOEUF LLP By: /s/ Peter E. Root Peter E. Root Attorneys For Plaintiff Brocade Communications Systems, Inc.

Dated: April 9, 2009

HOGAN & HARTSON LLP By: /s/ Norman J. Blears Norman J. Blears Attorneys For Defendant Antonio Canova

ATTESTATION PURSUANT TO GENERAL ORDER 45 I, Peter E. Root, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Re: Dismissal of Remaining Claims Against Defendant Antonio Canova Pursuant to Settlement. In compliance with General Order 45.X.B, I hereby attest that concurrence in the filing of this document has been obtained from each of the other signatories. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 9th day of April 2009, at East Palo Alto, California. /s/ Peter E. Root Peter E. Root

-3STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST CANOVA CASE NO.: C-05-02233 CRB

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ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Charles R. Breyer United States District Judge

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ATTACHMENT TO STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST DEFENDANT ANTONIO CANOVA PURSUANT TO SETTLEMENT

STIPULATION AND PROPOSED ORDER RE: DISMISSAL OF REMAINING CLAIMS AGAINST CANOVA CASE NO.: C-05-02233 CRB