Thiel v. TubeMogul,Inc. et al

Filing 7

STIPULATION WITH PROPOSED ORDER re 6 Re Dismissal of Case filed by William Thiel. Signed by Judge Edward M. Chen on 2/7/17. (bpfS, COURT STAFF) (Filed on 2/7/2017)

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David E. Bower (SBN 119546)
MONTEVERDE & ASSOCIATES PC
600 Corporate Pointe
600 W. Corporate Pointe, Suite 1170
Culver City, CA 90230
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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WILLIAM THIEL, individually and on
behalf of all others similarly situated,

Case No. 3:16-cv-07083

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Plaintiffs,

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v.
TUBEMOGUL, INC.; BRETT WILSON;
AJAY CHOPRA; RUSELL FRADIN;
JACK LAZAR; PAUL LEVINE; DAVIT
TOTH; ADOBE SYSTEMS
INCORPORTED; and TIGER
ACQUISITION CORPORATION,
Defendants.

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NOTICE OF DISMISSAL AND [PROPOSED] ORDER
CLOSING AND TERMINATING THE ACTIONS

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WHEREAS, on November 10, 2016, TubeMogul, Inc. (“TubeMogul”)

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announced that it had entered into an Agreement and Plan of Merger, dated the same

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day (the “Merger Agreement”), pursuant to which Adobe would acquire TubeMogul

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NOTICE OF DISMISSAL AND [PROPOSED] ORDER
CLOSING AND TERMINATING THE ACTIONS

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in a two-step transaction for $14.00 in cash for each outstanding share of TubeMogul

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in a transaction valued at approximately $540 million (the “Tender Offer” or

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“Proposed Transaction”);

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WHEREAS,

on

November

18,

2016,

TubeMogul

filed

its

Solicitation/Recommendation Statement on Schedule 14D-9 (the “Recommendation
Statement”) with the Securities and Exchange Commission (“SEC”) in support of the

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Proposed Transaction;
WHEREAS, on December 5, 2016, William Thiel filed a putative class action
complaint in the Superior Court of the State of California for Alameda County,

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captioned Thiel v. TubeMogul, Inc., Case No. RG16841232, subsequently removed to

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the United States District Court for the Northern District of California, captioned Thiel

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v. TubeMogul, Inc., Case No. 3:16-cv-07083 (the “Thiel Action”);

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WHEREAS, on December 6, 2016, Bahadir Yavuz filed a putative class action

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complaint in the United States District Court for the Northern District of California,

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captioned Yavuz v. TubeMogul, Inc., Case No. 4:16-cv-06996 (the “Yavuz Action,”
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together with the Thiel Action, the “Actions”);
WHEREAS, on December 8 and 13, 2016, the Company filed with the SEC

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additional

disclosures

that

amended

and

supplemented

the

Company’s

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Recommendation Statement (the “Supplemental Disclosures”) and that, among other

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things, mooted the disclosure claims in the Actions;

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NOTICE OF DISMISSAL AND [PROPOSED] ORDER
CLOSING AND TERMINATING THE ACTIONS

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WHEREAS, Plaintiffs believe that the Supplemental Disclosures addressed

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Plaintiffs’ disclosure allegations and claims and entitle them to recover an award of

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attorneys’ fees and expenses;

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WHEREAS, based on the proceedings to date, Plaintiffs have determined that

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certain claims asserted in the Actions have been mooted and the remaining claims are

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so unlikely to be successful as to warrant dismissal;

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WHEREAS, Defendants deny the allegations in the Actions, including, but not

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limited to, the disclosure allegations and expressly maintain that they acted diligently

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and scrupulously, and complied with all applicable fiduciary, disclosure, and other

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legal duties;
WHEREAS, Defendants dispute that Plaintiffs are entitled to an award of
attorneys’ fees and expenses or any other relief;

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WHEREAS, the Plaintiffs in both Actions, on behalf of themselves and not on

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behalf of any class of shareholders, and the Defendants to the Actions have agreed to

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settle their disputes pursuant to a confidential settlement agreement;
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WHEREAS, it is the intention of counsel for Plaintiff in the Action to dismiss
the Action with prejudice as to Plaintiffs;

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WHEREAS, no class has been certified in the Actions;
There being no further issue for the Court to consider, the Court, at the request
of Plaintiffs, hereby issues the following order:

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2
NOTICE OF DISMISSAL AND [PROPOSED] ORDER
CLOSING AND TERMINATING THE ACTIONS

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1.

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Plaintiff dismiss with prejudice the above-captioned Action against
Defendants as moot; and

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To close and terminate the Action.

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MONTEVERDE & ASSOCIATES PC

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/s/ David E Bower___________________
David E. Bower SBN 119546
600 Corporate Pointe, Suite 1170
Culver City, CA 90230
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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Counsel for Plaintiff

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RT
U
O

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UNIT
ED

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SO ORDERED.
2/7/2017
Dated: _________

RT

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NO

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n

M. Che

US District Court Judge
ER
C
N
Distribution To:
OF
D IS T IC T
R
All ECF-registered counsel of record via email generated through the court’s ECF
system.
H

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dward
Judge E

R NIA

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FO

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Juan E. Monteverde
Miles D. Schreiner
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, 59th Floor
New York, NY 10018
Telephone: [phone]
Facsimile: [phone]
S DISTRICT
TE
C
[e-mail]
[e-mail]
D
RDERE
Counsel for Plaintiff
S SO O
IT I

LI

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OF COUNSEL

A

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3
NOTICE OF DISMISSAL AND [PROPOSED] ORDER
CLOSING AND TERMINATING THE ACTIONS