City of Ann Arbor Employees' Retirement System v. Accuray Incorporated et al

Filing 132

ORDER by Judge Claudia Wilken REVISED ORDER PRELIMINARILY APPROVING 126 SETTLEMENT AND PROVIDING FOR NOTICE (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3) (ndr, COURT STAFF) (Filed on 6/10/2011)

1 ROBBINS GELLER RUDMAN
& DOWD LLP
2 SHAWN A. WILLIAMS (213113)
DANIEL J. PFEFFERBAUM (248631)
3 Post Montgomery Center
One Montgomery Street, Suite 1800
4 San Francisco, CA 94104
Telephone: [phone]
5 415/288-4534 (fax)
[e-mail]
6 [e-mail]
– and –
7 JOY ANN BULL (138009)
655 West Broadway, Suite 1900
8 San Diego, CA 92101
Telephone: [phone]
9 619/231-7423 (fax)
[e-mail]
10
LABATON SUCHAROW LLP
11 CHRISTOPHER J. KELLER
JONATHAN GARDNER
12 MARK GOLDMAN
CAROL C. VILLEGAS
13 140 Broadway
New York, NY 10005
14 Telephone: [phone]
212/818-0477 (fax)
15 [e-mail]
[e-mail]
16 [e-mail]
[e-mail]
17
Co-Lead Counsel for Plaintiffs
18
UNITED STATES DISTRICT COURT
19
NORTHERN DISTRICT OF CALIFORNIA
20
OAKLAND DIVISION
21
) Master File No. 4:09-cv-03362-CW
In re ACCURAY INC. SECURITIES
)
22 LITIGATION
) CLASS ACTION
)
23
) PROOF OF CLAIM AND RELEASE
This Document Relates To:
)
24
) EXHIBIT A-2
ALL ACTIONS.
)
25
26
27
28

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1 I.

GENERAL INSTRUCTIONS

2

1.

To recover as a Member of the Settlement Class based on your claims in the action

3 entitled In re Accuray Inc. Sec. Litig., Master File No. 4:09-cv-03362-CW (the “Litigation”), you
4 must complete and, on page 4 hereof, sign this Proof of Claim and Release form (“Proof of Claim”).
5 If you fail to file a properly addressed (as set forth in paragraph 3 below) Proof of Claim, your claim
6 may be rejected and you may be precluded from any recovery from the Net Settlement Fund created
7 in connection with the proposed Settlement of the Litigation.
8

2.

Submission of this Proof of Claim, however, does not assure that you will share in the

9 proceeds of settlement in the Litigation.
10

3.

YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM

11 POSTMARKED ON OR BEFORE SEPTEMBER 12, 2011, ADDRESSED AS FOLLOWS:
Accuray Securities Litigation
Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 8040
San Rafael, CA 94912-8040

12
13
14

15 If you are NOT a Member of the Settlement Class, as defined in the Notice of Pendency and
16 Proposed Settlement of Class Action (“Notice”), DO NOT submit a Proof of Claim.
17

4.

If you are a Member of the Settlement Class, you are bound by the terms of any

18 judgment entered in the Litigation, WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM.
19 II.

DEFINITIONS

20

1.

“Defendants” means Accuray Inc. and the Individual Defendants, as defined below.

21

2.

“Individual Defendants” means Euan S. Thomson, Robert E. McNamara, John R.

22 Adler, Jr., Wade B. Hampton and Ted Tu.
23

3.

“Released Parties” means each and all of the Defendants and each and all of their

24 Related Parties.
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1 III.

CLAIMANT IDENTIFICATION

2

1.

If you purchased Accuray common stock and held the certificate(s) in your name, you

3 are the beneficial owner as well as the record holder. If, however, the certificate(s) were registered
4 in the name of a third party, such as a brokerage firm or other nominee, you are the beneficial owner
5 and the third party is the record holder.
6

2.

Use Part I of this form entitled “Claimant Identification” to identify each holder of

7 record (“nominee”), if different from the beneficial owner of Accuray common stock that forms the
8 basis of this claim.

THIS CLAIM MUST BE FILED BY THE ACTUAL BENEFICIAL

9 OWNER(S), OR A PERSON AUTHORIZED TO ACT ON BEHALF OF SUCH OWNER(S) OF
10 THE ACCURAY COMMON STOCK UPON WHICH THIS CLAIM IS BASED.
11

3.

All joint owners (or a Person authorized to act on the owner’s behalf) must sign this

12 claim. Executors, administrators, guardians, conservators, trustees, or others authorized to act on
13 behalf of a beneficial owner, must complete and sign this claim on behalf of Persons represented by
14 them and their authority must accompany this claim and their titles or capacities must be stated. The
15 Social Security (or taxpayer identification) number and telephone number of the beneficial owner
16 may be used in verifying the claim. Failure to provide the foregoing information could delay
17 verification of your claim or result in rejection of the claim.
18 IV.

CLAIM FORM

19

1.

Use Part II of this form entitled “Schedule of Transactions in Accuray Common

20 Stock” to supply all required details of your transaction(s) in Accuray common stock. If you need
21 more space or additional schedules, attach separate sheets giving all of the required information in
22 substantially the same form. Sign and print or type your name on each additional sheet.
23

2.

On the schedules, provide all of the requested information with respect to all of your

24 purchases and all of your sales of Accuray common stock that took place at any time between
25 February 7, 2007 and August 19, 2008, inclusive (the “Settlement Class Period”), and any sales
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1 between August 20, 2008 and November 17, 2008, whether such transactions resulted in a profit or a
2 loss. Failure to report all such transactions may result in the rejection of your claim.
3

3.

List each transaction in the Settlement Class Period separately and in chronological

4 order, by trade date, beginning with the earliest. You must accurately provide the month, day and
5 year of each transaction you list.
6

4.

The date of covering a “short sale” is deemed to be the date of purchase of Accuray

7 common stock. The date of a “short sale” is deemed to be the date of the sale of Accuray common
8 stock.
9

5.

Broker confirmations or other documentation of your transactions in Accuray

10 common stock should be attached to your claim. Failure to provide this documentation could delay
11 verification of your claim or result in rejection of your claim.
12

6.

The above requests are designed to provide the minimum amount of information

13 necessary to process the most simple claims. The Claims Administrator may request additional
14 information as required to efficiently and reliably calculate your losses. In some cases where the
15 Claims Administrator cannot perform the calculation accurately or at a reasonable cost to the
16 Settlement Class with the information provided, the Claims Administrator may condition acceptance
17 of the claim upon the production of additional information and/or the hiring of an accounting expert
18 at the Claimant’s cost.
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1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

In re Accuray Inc. Sec. Litig.

4

Master File No. 4:09-cv-03362-CW

5

PROOF OF CLAIM AND RELEASE

6

Must Be Postmarked No Later Than:

7

September 12, 2011

8

Please Type or Print

9 PART I:
10
11

CLAIMANT IDENTIFICATION

Beneficial Owner’s Name (First, Middle, Last)

12
13 Street Address
14

City

State

Zip Code

15
16 Foreign Province

Foreign Country
Individual

17

Social Security Number or
18 Taxpayer Identification Number
19 Area Code

Corporation/Other
(work)
Telephone Number

20

(home)

21 Area Code

Telephone Number

22
23 Record Holder’s Name (if different from beneficial owner listed above)
24
25
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1 PART II:

SCHEDULE OF TRANSACTIONS IN ACCURAY COMMON STOCK

2

Purchases of Accuray common stock (February 7, 2007 – August 19, 2008,
inclusive):

A.

3
4
5
6

Trade Date
Month Day Year
1. _________________
2. _________________
3. _________________

7

10
11
12
13

1. __________________
2. __________________
3. __________________

Total
Purchase Price
1. ___________________
2. ___________________
3. ___________________

IMPORTANT: Identify by number listed above all purchases in which you covered a
“short sale”: _______________________________.

8
9

Number of Shares
Purchased

B.
inclusive):

Sales of Accuray common stock (February 7, 2007 – November 17, 2008,

Trade Date
Month Day Year
1. _________________
2. _________________
3. _________________

14

1. __________________
2. __________________
3. __________________

Total
Sales Price
1. ___________________
2. ___________________
3. ___________________

C.

Number of shares of Accuray common stock held at the close of trading on August
19, 2008: __________.

D.

Number of shares of Accuray common stock held at the close of trading on
November 17, 2008: ____________.

15
16

Number of Shares
Sold

17

If you require additional space, attach extra schedules in the same format as above. Sign and print
18 your name on each additional page.
19 YOU MUST READ AND SIGN THE RELEASE ON PAGE __________. FAILURE TO SIGN
THE RELEASE MAY RESULT IN A DELAY IN PROCESSING OR THE REJECTION OF
20 YOUR CLAIM.
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1 V.

SUBMISSION TO JURISDICTION OF COURT AND
ACKNOWLEDGMENTS

2
I (We) submit this Proof of Claim and Release form under the terms of the Stipulation of
3
Settlement, dated as of April 27, 2011 (“Stipulation”), described in the Notice. I (We) also submit to
4
the jurisdiction of the United States District Court for the Northern District of California, with
5
respect to my (our) claim as a Settlement Class Member (as defined in the Notice) and for purposes
6
of enforcing the release set forth herein. I (We) further acknowledge that I am (we are) bound by
7
and subject to the terms of any judgment that may be entered in the Litigation. I (We) agree to
8
furnish additional information to Lead Counsel to support this claim if required to do so. I (We)
9
have not submitted any other claim covering the same purchases or sales of Accuray common stock
10
during the Settlement Class Period and know of no other Person having done so on my (our) behalf.
11
VI.

RELEASE

12
1.

I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully,

13
finally and forever settle, release, relinquish and discharge, all of the Released Claims against each
14
and all of the Defendants and each and all of their “Related Parties” defined as each of a Defendant’s
15
past or present directors, officers, employees, partners, insurers, co-insurers, reinsurers, principals,
16
controlling shareholders, attorneys, accountants, auditors, underwriters, investment advisors,
17
personal or legal representatives, predecessors, successors, parents, subsidiaries, divisions, joint
18
ventures, assigns, spouses, heirs, estates, related or affiliated entities, any entity in which a
19
Defendant has a controlling interest, any members of an Individual Defendant’s immediate family,
20
any trust of which an Individual Defendant is the settlor or which is for the benefit of an Individual
21
Defendant and/or any member of an Individual Defendant’s immediate family, and any entity in
22
which a Defendant and/or any member of an Individual Defendant’s immediate family has or have a
23
controlling interest (directly or indirectly).
24
2.

“Released Claims” shall collectively mean all claims (including Unknown Claims as

25
defined below), demands, rights, liabilities and causes of action of every nature and description
26
whatsoever, known or unknown, contingent or absolute, mature or immature, discoverable or
27
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1 undiscoverable, whether concealed or hidden, suspected or unsuspected, which now exist, or
2 heretofore have existed, asserted or that could have been asserted by the Lead Plaintiffs or any
3 Settlement Class Member against the Defendants and their Related Parties based upon or arising out
4 of both (a) the facts, transactions, events, occurrences, disclosures, statements, acts, omissions or
5 failures to act which were or could have been alleged in the Litigation and (b) the purchase or
6 acquisition of Accuray securities by the Lead Plaintiffs or any Settlement Class Member during the
7 Settlement Class Period.
8

3.

“Unknown Claims” means collectively any Released Claims that the Lead Plaintiffs

9 or any Settlement Class Member does not know or suspect to exist in his, her or its favor at the time
10 of the release of the Released Parties which, if known by him, her or it, might have affected his, her
11 or its settlement with and release of the Released Parties, or might have affected his, her or its
12 decision not to object to or opt out of this Settlement. With respect to any and all Released Claims,
13 the Settling Parties stipulate and agree that, upon the Effective Date, Lead Plaintiffs shall expressly
14 waive, and each of the Settlement Class Members shall be deemed to have waived, and by operation
15 of the Judgment shall have waived, the provisions, rights and benefits of California Civil Code
16 §1542, which provides:
17
18

A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her
settlement with the debtor.

19
Lead Plaintiffs shall expressly waive and each of the Settlement Class Members shall be deemed to
20
have, and by operation of the Judgment shall have, expressly waived any and all provisions, rights
21
and benefits conferred by any law of any state or territory of the United States, or principle of
22
common law, which is similar, comparable or equivalent to California Civil Code §1542. Lead
23
Plaintiffs and Settlement Class Members may hereafter discover facts in addition to or different from
24
those which he, she or it now knows or believes to be true with respect to the subject matter of the
25
Released Claims, but Lead Plaintiffs shall expressly fully, finally and forever settle and release, and
26
each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation
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1 of the Judgment shall have, fully, finally, and forever settled and released, any and all Released
2 Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not
3 concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity
4 now existing or coming into existence in the future, including, but not limited to, conduct which is
5 negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to
6 the subsequent discovery or existence of such different or additional facts. Lead Plaintiffs
7 acknowledge, and the Settlement Class Members shall be deemed by operation of the Judgment to
8 have acknowledged, that the foregoing waiver was separately bargained for and a key element of the
9 Settlement of which this release is a part.
10

4.

This release shall be of no force or effect unless and until the Court approves the

11 Stipulation and it becomes effective on the Effective Date.
12

5.

I (We) hereby warrant and represent that I (we) have not assigned or transferred or

13 purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this
14 release or any other part or portion thereof.
15

6.

I (We) hereby warrant and represent that I (we) have included information about all

16 of my (our) transactions in Accuray common stock that occurred during the Settlement Class Period
17 as well as the number of shares of Accuray common stock held by me (us) at the close of trading on
18 August 19, 2008, and the number of shares of Accuray common stock held at the close of trading on
19 November 17, 2008.
20

7.

I (We) hereby warrant and represent that I am (we are) not excluded from the

21 Settlement Class, as defined in the Notice of Pendency and Proposed Settlement of Class Action.
22
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1

I (We) declare under penalty of perjury under the laws of the United States of America that

2 the foregoing information supplied by the undersigned is true and correct.
Executed this ___________ day of ________________________,
(Month/Year)

3
4
5

in _____________________, _______________________________________.
(City)
(State/Country)

6
7

________________________________
(Sign your name here)

8
9

________________________________
(Type or print your name here)

10
11
12
13

________________________________
(Capacity of person(s) signing, e.g.,
Beneficial Owner,
Executor or Administrator)

14

ACCURATE CLAIMS PROCESSING TAKES A

15

SIGNIFICANT AMOUNT OF TIME.

16

THANK YOU FOR YOUR PATIENCE.

17 Reminder Checklist:
1.
Please sign the above release and declaration.
18
2.
Remember to attach supporting documentation, if available.
19
3.
Do not send original stock certificates.
20
4.
Keep a copy of your claim form for your records.
21
5.
If you desire an acknowledgment of receipt of your claim form, please send it
22
Certified Mail, Return Receipt Requested.
23
6.
If you move, please send us your new address.
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