Mendoza v. Gigpeak, Inc. et al

Filing 7

STIPULATION AND ORDER CONCERNING PLAINTIFF'S VOLUNTARY DISMISSAL OF THE ABOVE ACTION AND PLAINTIFF'S COUNSEL'S ANTICIPATED APPLICATION FOR AN AWARD OF ATTORNEYS FEES AND EXPENSES. The Action is dismissed with prejudice as to Plainti ff only, and without prejudice as to any other member of the putative class. Plaintiff shall file his petition for an award of attorneys fees and expenses by no later than April 28, 2017. Signed by Judge William H. Orrick on 04/07/2017. (jmdS, COURT STAFF) (Filed on 4/7/2017)

1 ROSEMARY M. RIVAS (SBN 209147)
Email: [e-mail]

2 LEVI & KORSINSKY, LLP
44 Montgomery Street, Suite 650

3 San Francisco, CA 94104
Telephone: [phone]
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Facsimile: [phone]
5 Attorney for Plaintiff Felix Mendoza
and the Proposed Class

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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FELIX MENDOZA, individually and
on behalf of all others similarly
situated,

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Case No. 3:17-CV-1351-WHO
CLASS ACTION
STIPULATION AND ORDER
CONCERNING PLAINTIFF’S
VOLUNTARY DISMISSAL OF THE
ABOVE ACTION AND PLAINTIFF’S
COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF
ATTORNEYS’ FEES AND EXPENSES

Plaintiff,
v.

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GIGPEAK, INC., AVI KATZ, NEIL J.
MIOTTO, KIMBERLY D.C. TRAPP,
JOSEPH J. LAZZARA, JOHN J.
MIKULSKY, AND FRANK W.
SCHNEIDER,

Judge: William H. Orrick III

Defendants.

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STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY
DISMISSAL OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S
ANTICIPATED APPLICATION FOR AN AWARD OF
ATTORNEYS’ FEES AND EXPENSES

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WHEREAS, on February 13, 2017, GigPeak, Inc. (“GigPeak” or the “Company”) and

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21 Integrated Device Technology, Inc. (“Parent”) announced that they had entered into an
22 Agreement and Plan of Merger (the “Merger Agreement”), dated as of February 13, 2017,
23 among GigPeak, Parent, and Parent’s wholly-owned subsidiary, Glider Merger Sub, Inc.
24 (“Merger Sub,” and together with Parent, “IDT”) pursuant to which Merger Sub would acquire
25 all of the outstanding shares of GigPeak and GigPeak stockholders would receive $3.08 per share
26 of GigPeak common stock (the “Transaction”);
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-1STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY DISMISSAL
OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
CASE NO. 3:17-CV-1351-WHO

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WHEREAS, under the Merger Agreement, IDT was obligated to commence the Offer

2 within 15 business days after the date of the Merger Agreement. The Offer was commenced on
3 March 7, 2017 and was scheduled to expire at midnight on April 3, 2017;
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WHEREAS, on March 7, GigPeak filed a Recommendation Statement on a Schedule

5 14D-9 (the “Recommendation Statement”) with the SEC.
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Among other things, the

Recommendation Statement (i) summarized the Merger Agreement, (ii) provided an account of

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the events leading up to the execution of the Merger Agreement, (iii) stated that the GigPeak’s
board of directors determined that the Transaction was in the best interests of GigPeak’s

10 stockholders and recommended that the Company’s stockholders tender into the Tender Offer,
11 and (iv) summarized the valuation analyses and fairness opinions by Cowen & Company, LLC
12 (“Cowen”) and Needham and Company, LLC (“Needham”), the financial advisors to GigPeak;
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WHEREAS, on March 13, 2017, plaintiff Felix Mendoza (“Plaintiff”) filed a purported

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class action lawsuit in the District Court for the Northern District of California, on behalf of

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himself and other public stockholders of GigPeak, challenging the adequacy of the disclosures

17 made in the Recommendation Statement, captioned: Mendoza v. GigPeak, Inc., et al., Case No.
18 17-cv-01351 (the “Mendoza Action”);
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WHEREAS, this lawsuit alleged, among other things, that Defendants GigPeak, Inc., Avi

20 Katz, Neil J. Miotto, Kimberly D.C. Trapp, Joseph J. Lazzara, John J. Mikulsky, and Frank W.
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Schneider, (collectively, the “Defendants”) committed disclosure violations under Sections

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14(d)(4), 14(e) and 20(a) of the Securities and Exchange Act of 1934 (the “Exchange Act”), and
Rule 14d-9 promulgated thereunder;

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-2STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY DISMISSAL
OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
CASE NO. 3:17-CV-1351-WHO

WHEREAS, after negotiations between the parties, on March 24, 2017, GigPeak filed

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2 Amendment No. 5 to the Recommendation Statement with the SEC containing supplemental
3 disclosures to the Recommendation Statement (the “Supplemental Disclosures”);
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WHEREAS, at one minute following 11:59 P.M. (12:00 midnight) New York City time,

5 on Monday, April 3, 2017, the Tender Offer for GigPeak common stock expired and IDT
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successfully completed its acquisition of the Company;

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WHEREAS, Plaintiff agrees that as a result of the filing of the Supplemental Disclosures,

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the disclosure issues related to the Proposed Transaction identified in the complaint have become

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WHEREAS, no class has been certified in the Action;

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WHEREAS, for the avoidance of doubt, no compensation in any form has passed directly

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or indirectly to Plaintiff or his attorneys and no promise, understanding, or agreement to give any
such compensation has been made, nor have the parties had any discussions concerning the

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amount of any mootness fee;
WHEREAS, Plaintiff’s Counsel believes they may assert a claim for a fee in connection

18 with the prosecution of the Action and the issuance of the Supplemental Disclosure, and have
19 informed Defendants of their intention to petition the Court for such a fee if their claim cannot be
20 resolved through negotiations between counsel for Plaintiff and Defendants (the “Fee
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Application”);

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WHEREAS, all of the Defendants in the Action reserve all rights, arguments and
defenses, including the right to oppose any potential Fee Application; and
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned

26 attorneys for the respective parties:
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-3STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY DISMISSAL
OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
CASE NO. 3:17-CV-1351-WHO

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1.

R. Civ. P. 41(a)(1);

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Plaintiff hereby agrees to voluntarily dismiss the Action pursuant to Fed.

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Because the dismissal is as to the named Plaintiff only and has no effect

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upon the putative class, and because no consideration or compensation has

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been given or promised to Plaintiff or their counsel, no notice of this

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dismissal is required to the putative class;

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3.

This Court retains continuing jurisdiction over the parties in the Action

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solely for purposes of further proceedings related to the adjudication of

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Plaintiff’s petition for an award of attorneys’ fees and expenses. If the

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parties reach an agreement to compromise and resolve the petition for

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attorneys’ fees and expenses, they will notify the Court.

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Upon such

notification, the Court will close the Action. If no agreement can be

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reached, Plaintiff will file a petition for such fees and expenses by no later

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than April 28, 2017; and

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4.

This Stipulation is not intended to, and shall not, waive or prejudice any

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right or argument that may be asserted or presented by Plaintiff or

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Defendants in support of or in opposition to any claim by Plaintiff for

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attorneys’ fees and expenses.

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DATED: April 6, 2017

LEVI & KORSINSKY LLP
By: /s/ Rosemary M. Rivas
Rosemary M. Rivas

44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
-4STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY DISMISSAL
OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
CASE NO. 3:17-CV-1351-WHO

Donald J. Enright
Elizabeth K. Tripodi
1101 30th Street, N.W., Suite 115
Washington, DC 20007
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiff Felix Mendoza

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DATED: April 6, 2017

CROWELL MORING
By: /s/ Michelle Gillette
Michelle Gillette
3 Embarcadero Center, 26th Floor
San Francisco, CA 94111
[e-mail]
Attorneys for Defendants GigPeak, Inc., Avi
Katz, Neil J. Miotto, Kimberly D.C. Trapp,
Joseph Lazzara, John Mikulsky, and Frank
W. Schneider
FILER’S ATTESTATION

Pursuant to Civil Local Rule 5-1 regarding signatures, I attest under penalty of perjury that

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the concurrence in the filing of this document has been obtained from all signatories.

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/s/ Rosemary M. Rivas
Rosemary M. Rivas

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-5STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY DISMISSAL
OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
CASE NO. 3:17-CV-1351-WHO

ORDER

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Based on the foregoing stipulation and good cause being shown, the Court hereby GRANTS
the parties’ Stipulation. The Court hereby orders as follows:

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The Action is hereby dismissed with prejudice as to Plaintiff only, and

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without prejudice as to any other member of the putative class.

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2.

No notice of this dismissal is required to the putative class.

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This Court retains continuing jurisdiction over the parties in the Action

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solely for purposes of further proceedings related to the adjudication of

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Plaintiff’s anticipated application for an award of attorneys’ fees and

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expenses.

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4.

Plaintiff shall file his petition for an award of attorneys’ fees and expenses

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by no later than April 28, 2017.

15 SO ORDERED this 7th day of April, 2017
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___________________________
Honorable William H. Orrick III
United States District Court Judge

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-6STIPULATION AND ORDER CONCERNING PLAINTIFF’S VOLUNTARY DISMISSAL
OF THE ABOVE ACTION AND PLAINTIFF’S COUNSEL’S ANTICIPATED
APPLICATION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
CASE NO. 3:17-CV-1351-WHO