Maritime Asset Management, LLC v. Neurogesx, Inc. et al

Filing 94

ORDER PRELIMINARILY APPROVING SETTLEMENT AND CERTIFYING SETTLEMENT CLASS, APPROVING CLASS NOTICE AND SETTING SETTLEMENT HEARING [AS MODIFIED BY THE COURT] re 84 MOTION for an Order Granting Preliminary Approval of Class Action Settlemen t and Directing Dissemination of Notice to the Class filed by Maritime Asset Management, LLC. Signed by Judge Yvonne Gonzalez Rogers on 6/27/14. (Attachments: # (1A-1) Exhibit: Notice of Settlement, # (1A-2) Exhibit: Claim Form )(fs, COURT STAFF) (Filed on 6/27/2014)

EXHIBIT 1A-2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MARITIME ASSET MANAGEMENT, LLC,
on Behalf of Itself and All Others Similarly
Situated,

Case No. CV 12-05034-YGR
CLASS ACTION

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Plaintiff,
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CLAIM FORM AND RELEASE
v.

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EXHIBIT A-2
NEUROGESX, INC., ANTHONY A.
DITONNO, STEPHEN F. GHIGLIERI, and
JEFFREY K. TOBIAS, M.D.,

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Defendants.
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CLAIM FORM AND RELEASE
Case No. CV 12-05034-YGR

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PART I: CLAIM FORM
A.

CLAIMANT IDENTIFICATION

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Claimant’s Name

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Street Address

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City

State

Zip Code

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Telephone Number

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B.

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PURCHASE OF NEUROGESX SECURITIES IN PRIVATE PLACEMENT
Our records indicate that you purchased ____ shares of common stock and ____ warrants

in NeurogesX’s July 21, 2011 private placement at a total price of $______.

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Is this correct? Yes____ No____

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If you selected “No,” please provide the correct information about your purchase in the

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space below and submit supporting documentation with this Claim Form.

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_______

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Common stock

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$_______

Warrants

Total price

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PART II: RELEASE OF CLAIMS AND SIGNATURE
A.

DEFINITIONS

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“Released Claims” means all claims, demands, rights, liabilities, suits, debts, obligations,

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and causes of action, of every nature and description whatsoever, whether known or unknown,

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contingent or absolute, mature or unmature, discovered or undiscovered, liquidated or

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unliquidated, accrued or unaccrued, including those that are concealed or hidden, regardless of

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legal or equitable theory, that have been, could have been, or in the future might be asserted

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based upon, arising out of, or in any way relating to: (i) any purchase or sale by any member of

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the settlement class of NeurogesX securities; (ii) any act, failure to act, omission,

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misrepresentation, fact, event, transaction, occurrence, or other matter set forth, alleged,
CLAIM FORM AND RELEASE
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underlying, or otherwise referred to in the above-captioned action or that could have been

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asserted in the action; or (iii) the subject matter of the above-captioned action. Notwithstanding

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the foregoing, “Released Claims” does not include claims relating to the enforcement of the

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settlement.

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“Released Persons” means NeurogesX Inc., Anthony A. DiTonno, Stephen F. Ghiglieri,

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and Jeffrey K. Tobias, M.D., and each of their respective spouses, family members, trusts,

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estates, heirs, beneficiaries, executors, predecessors, successors, assigns, employees, agents,

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affiliates, assignees, attorneys, auditors, controlling shareholders, directors, insurers, managers,

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members, partners, officers, parent companies, personal or legal representatives, subsidiaries,

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trustees, underwriters, and retained professionals, in their respective capacities as such.

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“Unknown Claims” means all claims that any Plaintiff or any other settlement class

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member does not know or suspect to exist that are based upon, arise out of, or in any way relate

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to: (i) any purchase or sale by any settlement class member of NeurogesX Securities; (ii) any

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act, failure to act, omission, misrepresentation, fact, event, transaction, occurrence, or other

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matter set forth, alleged, underlying, or otherwise referred to in this lawsuit or that could have

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been alleged in the lawsuit; or (iii) the subject matter of the lawsuit. Unknown Claims include,

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without limitation, those claims in which some or all of the facts composing the claim may be

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unsuspected, undisclosed, concealed, or hidden. Notwithstanding the foregoing, “Unknown

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Claims” does not include claims relating to the enforcement of the settlement. Members of the

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settlement class expressly waive and relinquish all rights and benefits conferred by California

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Civil Code Section 1542, which provides:

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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.

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Members of the settlement class also waive any right or benefits afforded by any similar
statute or law in California or any other jurisdiction.

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CLAIM FORM AND RELEASE
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B.

THE RELEASE

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On behalf of the claimant listed above and his, her, or its spouse, family members, trusts,

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estates, heirs, executors, beneficiaries, predecessors, successors, assigns, employees, agents,

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affiliates, assignees, attorneys, auditors, shareholders, directors, insurers, managers, members,

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partners, officers, parent companies, personal or legal representatives, subsidiaries, trustees,

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underwriters, and retained professionals, in their respective capacities as such, and any other

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individual or business or legal entity claiming (now or in the future) through or on behalf of the

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claimant, directly or indirectly (collectively, the “Releasing Parties”), as of the date the

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settlement becomes effective, I hereby fully, finally, and forever release, relinquish, waive,

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discharge, and dismiss each and all of the Released Claims (including Unknown Claims) against

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each and all of the Released Persons, and covenant not to sue any Released Person with respect

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to any Released Claim.

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On behalf of the Releasing Parties, as of the date the settlement becomes effective, I

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hereby agree that the Releasing Parties are permanently barred, enjoined, and restrained from

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commencing, instituting, asserting, maintaining, enforcing, prosecuting, or otherwise pursuing,

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either directly or in any other capacity, any of the Released Claims (including any Unknown

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Claims) against any Released Person.

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CLAIM FORM AND RELEASE
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I declare, under penalty of perjury under the laws of the United States of America, that

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the statements made and answers given in this Claim Form are true and correct and that the

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documents submitted herewith are true and genuine.

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Signature of Claimant
Print Name of Claimant

Date

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If Claimant is other than an individual, or is not the person
completing this form, the following also must be provided:

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Signature of Person Completing Form

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Print Name of Person Completing Form

Date

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Capacity of Person Signing (Executor, President, Trustee, etc.)
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CLAIM FORM AND RELEASE
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