Lee v. Ambroseo et al

Filing 147

ORDER PRELIMINARILY APPROVING DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE (granting 144 ). Final Approval Hearing set for 11/9/2009 at 9:00 AM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 9/14/2009. (jflc2, COURT STAFF) (Filed on 9/14/2009)

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**E-Filed 9/14/2009**

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

11 In re COHERENT, INC. SHAHOLDER ) Lead Case No. C-07-0955-JF
------------12 ) (PROPOSED) ORDER-----PRELIMINARILY

DERIVATIVE LITIGATION )
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13 This Document Relates To: ) AND PROVIDING FOR NOTICE
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) APPROVING DERIV A TIVE SETTLEMENT

ALL ACTIONS.

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1 WHEREAS, the Settling Paries have made application, pursuant to Federal Rule of Civil
2 Procedure 23.1, for an order (i) preliminarly approving the proposed settlement (the "Settlement")
3 ofthe above-captioned consolidated shareholder derivative action (the "Action"), in accordance with
4 a Stipulation of

Settlement, dated August 12,2009 and the exhbits thereto (the "Stipulation"), and

5 (ii) approving for distribution, the Notice of Settlement;

6 WHEREAS, the Stipulation sets forth the terms and conditions for the Settlement, including
7 but not limited to: (i) a proposed Settlement and dismissal of

the Action with prejudice as to the

8 Released Persons; and (ii) an award of attorneys' fees and costs to Plaintiffs' Counsel in the Action,

9 upon the terms and conditions set forth in the Stipulation;

10 WHEREAS, the Settlement appears to be the product of serious, informed, non-collusive
11 negotiations and falls within the range of possible approval;

12 WHEREAS, all capitalized terms contained herein shall have the same meanngs as set forth

13 in the Stipulation (in addition to those capitalized terms defined herein); and
14 WHEREAS, this Cour, having considered the Stipulation and the Exhbits anexed thereto
15 and having heard the arguments of

the Settling Paries at the preliminar approval hearng:

16 NOW THEREFORE, IT is HEREBY ORDERED:
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1.

This Cour does hereby preliminarily approve, subject to fuher consideration at the

18 Settlement Hearing described below, the Stipulation and the Settlement set forth therein, including

19 the terms and conditions for: ( a) a proposed Settlement and dismissal of the Action with prejudice as

20 to the Released Persons; and (b) an award of attorneys' fees and costs to Plaintiffs' Counsel in the

21 Action, upon the terms and conditions set forth in the Stipulation.
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2.

A hearng (the "Settlement Hearng") shall be held before this Cour on
a .m., in Couroom 3 of
the United States Distrct Cour for the

November 9 ,2009, at 9:00

24 Nortern District of Californa San Jose Division, 280 South First Street, San Jose, Californa 95113,
25 to determine whether:

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(a)

the terms and conditions of

the Settlement provided for in the Stipulation are

27 fair, reasonable, adequate and in the best interests of Coherent and curent Coherent stockholders;
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(PROPOSED) ORDER PRELIMINARILY APPROVING DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE - C-07-0955-JF
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(b)

an order and

judgment as provided for in ~1.8 of

the Stipulation should be

2 entered; and

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(c)
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to award attorneys' fees and expenses to Plaintiffs' Counsel.

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The Cour approves, as to form and content, the notice anexed as Exhbit A-I hereto,

5 and finds that the distrbution and publication of the Notice of Settlement and the Stipulation

6 substatially in the maner and form set forth in paragraph 3.1 of the Stipulation, meets the
7 requirements of Federal Rule of

Civil Procedure 23.1 and due process, is the best notice practicable

8 under the circumstaces, and shall constitute due and sufficient notice to all Persons entitled thereto
9 of all matters relating to the Settlement.

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4.

Not later than ten (10) days following entr of

this Order, Coherent shall cause the

11 Notice of Settlement substatially in the form anexed as Exhbit A-I hereto and the Stipulation to
12 be published on its website, such that visitors to the website home page will readily find a hyperlink

13 to the Notice of Settlement and the Stipulation.
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5.

Not later than ten (10) days following entr of

ths Order, Coherent shall cause a copy

15 of the Notice of Settlement to be filed with the Securties and Exchange Commission via a Form 816 K.
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18 ofthe Notice of

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Not later than ten (10) days following entr of

ths Order, Coherent shall cause a copy

Settlement substatially in the form anexed as Exhbit A-I hereto to be published

19 once in Investor's Business Daily.

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7.

All costs incured in the filing and publication of

the Notice of

Settlement shall be

21 paid by Coherent and Coherent shall undertke all administrative responsibilty for fiing and
22 publication of the Notice of

Settlement.

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At least foureen (14) days prior to the Settlement Hearng, Coherent's counsel shall

24 serve on Lead Counsel and file with the Cour proof, by affdavit or declaration, of such filing and
25 publication of the Notice of

Settlement.

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All curent Coherent stockholders shall be bound by all orders, determinations and

27 judgments in the Action concernng the Settlement, whether favorable or unavorable to curent
28 Coherent shareholders.

(PROPOSED) ORDER PRELIMINARILY APPROVING DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE - C-07-0955-JF

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Pending final determation of whether the Settlement should be approved, no curent

2 Coherent shareholder shall commence or prosecute agaist any of the Released Persons any action or

3 proceeding in any cour or tribunal asserting any of the Released Claims.
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All papers in support of the Settlement and the award of attorneys' fees and expenses

5 shall be filed with the Cour and served at least seven (7) calendar days prior to the Settlement

6 Hearing.

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12.

Any curent record holders and beneficial owners of the common stock of Coherent

8 as of August 12,2009 may appear and show cause, ifhe, she or it has any reason why the terms of
9 the Settlement should not be approved as fair, reasonable and adequate, or why a judgment should

10 not be entered thereon, provided, however, uness otherwse ordered by the Cour, no curent
11 Coherent stockholder shall be heard or entitled to contest the approval of all or any of the terms and
12 conditions ofthe Settlement, or, if approved, the Judgment to be entered thereon approving the same,

13 uness that Person has, at least foureen (14) days prior to the Settlement Hearing, fied with the
14 Clerk of

the Cour at the address below and served on the following counsel (delivered by hand or

15 sent by first class mail) appropriate proof of stock ownership, along with written objections,

16 including the basis therefore, and copies of any papers and briefs in support thereof:
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Clerk of the Cour UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 280 South First Street San Jose, CA 95113
Counsel for Plaintif

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Jeffey D. Light

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COUGHLIN STOIA GELLER

RUDMA & ROBBINS LLP
655 West Broadway, Suite 1900 San Diego, CA 92101
Nichole T. Browning
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BAROW A Y TOPAZ KESSLER MELTZER & CHECK, LLP 580 Californa Street, Suite 1750 San Francisco, CA 94104

(PROPOSED) ORDER PRELIMINARILY APPROVING DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE - C-07-0955-JF

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Counsel for Coherent and the Coherent Special Litigation Committee
Michael D. Torpey Michael C. Tu ORRCK, HERRGTON & SUTCLIFFE LLP 777 S. Figueroa Street, Suite 3200 Los Angeles, CA 90017

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5 Any curent Coherent stockholder who does not make his, her or its objection in the maner
6 provided herein shall be deemed to have waived such objection and shall forever be foreclosed from
7 makng any objection to the fairness, reasonableness or adequacy of

the Settlement as incorporated

8 in the Stipulation and to the award of attorneys' fees and expenses to Plaintiffs' Counsel, unless

9 otherwse ordered by the Cour, but shall otherwise be bound by the Judgment to be entered and the

10 releases to be given.
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Neither the Stipulation nor the Settlement, nor any act performed or document

12 executed pursuant to or in fuherance ofthe Stipulation or the Settlement: (a) is or may be deemed

13 to be or may be offered, attempted to be offered or used in any way by the Settling Paries as a
14 presumption, a concession or an admission of, or evidence of, any fault, wrongdoing or liability of
15 the Settling Paries or of the validity of any Released Claim; or (b) is intended by the Settling Paries

16 to be offered or received as evidence or used by any other Person in any other actions or

17 proceedings, whether civil, criminal or administrative. The Released Persons may file the
18 Stipulation and/or the Judgment in any action that may be brought against them in order to support a
19 defense or counterclaim based on principles of res judicata, collateral estoppel, full faith and credit,

20 release, stading, good faith settlement, judgment bar or reduction, or any other theory of claim
21 preclusion or issue preclusion or similar defense or counterclai; and any of

the Settling Paries may

22 file the Stipulation and documents executed pursuant and in fuherance thereto in any action to

23 enforce the Settlement.
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The Cour reserves the right to adjour the date of the Settlement Hearing or modify

25 any other dates set forth herein without fuher notice to the curent Coherent stockholders, and
26 retains jursdiction to consider all fuher applications arising out of or connected with the

27 Settlement. The Cour may approve the Settlement, with such modifications as may be agreed to by

28 the Settling Paries, if appropriate, without fuher notice to the curent Coherent stockholders.
(PROPOSED) ORDER PRELIMINARILY APPROVING DERIVATIVE SETTEMENT AND PROVIDING FOR NOTICE - C-07-0955-JF

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1 IT is so ORDERED.
9/14/2009

THE HONORABLE ffREMY FOGEL UNITED STATES DISTRICT JUDGE

PROVIDING FOR NOTICE - C-07-0955-JF - 5 -

(PROPOSED) ORDER PRELIMINARILY APPROVING DERIVATIVE SETTLEMENT AND

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THE WEISER LAW FIRM, P.C. 2 ROBERTB. WEISER 121 N. Wayne Avenue, Suite 100
3 Wayne, PA 19087
Telephone: [phone] (fax)

5 Additional Counsel for Plaintiffs
6 S:\Settlement\Coherent Deriv.set\(v2) EA-00058729.doc

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(PROPOSED) ORDER PRELIMIARILY APPROVING DERIVATIVE SETTEMENT AND
PROVIDING FOR NOTICE - C-07-0955-JF

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EXHffIT A-I

1 COUGHLIN STOIA GELLER

RUDMA & ROBBINS LLP
2 TRAVIS E. DOWNS III (148274) ffFFREY D. LIGHT (159515) 3 KATHLEEN A. HERKNHOFF (168562) BENNY C. GOODMA III (211302)
4 655 West Broadway, Suite 1900

San Diego, CA 92101
5 Telephone: [phone]

619/231-7423 (fax)
6 travisd~csgrr.com

jeff~csgrr.com
7 kathyh~csgr.com

bennyg~csgrr.com
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BARROW A Y TOPAZ KESSLER

9 MELTZER & CHECK, LLP NICHOLE T. BROWNING (251937) 10 580 Californa Street, Suite 1750 San Francisco, CA 94104
11 Telephone: [phone]

415/400-3001 (fax) 12 nbrowning~btkmc.com

13 Co-Lead Counsel for Plaintiffs
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

18 In re COHERENT, INC. SHAHOLDER ) Lead Case No. C-07-0955-JF

D I TIVE LITIGATION 19ER)VANOTICE OF ) SETTLEMENT

20 This Document Relates To: ) EXHIBIT A-I
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ALL ACTIONS.

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1 TO: ALL CURRNT RECORD HOLDERS AN BENEFICIAL OWNERS OF THE COMMON STOCK OF COHERENT, INC. ("COHERENT" OR THE 2 "COMPANY") AS OF AUGUST 12,2009

3 PLEASE TAK NOTICE that the above-captioned consolidated shareholder derivative
4 litigation (the "Action"), is being settled on the terms set forth in a Stipulation of

Settlement, dated

5 August 12,2009 (the "Stipulation").! The terms of

the settlement set forth in the Stipulation (the

6 "Settlement") include: (1) a financial benefit to Coherent of over $6 milion; (2) the adoption and/or

7 implementation of a variety of corporate governance reforms, including measures that relate to and
8 address many of

the underlying issues in the Action, including director independence, director stock

9 ownership, board membership and board election procedures, and stock option granting procedures;
10 and (3) Coherent's payment of

Plaintiffs' Counsel's attorneys' fees and expenses in the amount of$3

11 milion.

12 IF YOU AR A CURRNT OWNER OF COHERENT COMMON STOCK, YOUR
13 RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THE LITIGATION. PLEASE NOTE

14 THAT BECAUSE THIS IS A DERIVATIVE ACTION AN NOT A CLASS ACTION, NO
15 INDIVIDUAL STOCKHOLDER HAS A RIGHT TO BE COMPENSATED AS A RESULT OF

16 THE SETTLEMENT.
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On

,2009, at _ _.m., a hearing (the "Settlement Hearing") wil be

18 held before the United States Distrct Cour for the Northern District of Californa, San Jose
19 Division, 280 South First Street, San Jose, California 95113, to determine whether: (1) the terms of
20 the Settlement should be approved as fair, reasonable and adequate to Coherent and Coherent's

21 shareholders; (2) the Action should be dismissed on the merits and with prejudice; and (3) to
22 approve the negotiated amount of attorneys' fees to Plaintiffs' Counsel.
23 Any shareholder of Coherent that objects to the Settlement of

the Action shall have a right to

24 appear and to be heard at the Settlement Hearng, provided that he or she was a shareholder of record
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26 Ths Notice should be read in conjunction with, and is quaified in its entirety by reference to,

the text of the Stipulation, which has been fied with the Cour and is available on Coherent's 27 website at ww.coherent.com. Allindicated. terms herein have the same meanngs as set forth in capitalized the Stipulation unless otherwse
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NOTICE OF SETTLEMENT - C-07-0955-JF

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1 or beneficial owner as of August 12, 2009. Any shareholder of Coherent who satisfies this
2 requirement may enter an appearance though counsel of such shareholder's own choosing and at
3 such member's own expense or may appear on their own. However, no shareholder of

Coherent

4 shall be heard at the Settlement Hearng uness no later than 14 days prior to the date of the
5 Settlement Hearng, such shareholder has filed with the Cour and delivered to Lead Counsel and

6 Defendants' counsel, a wrtten notice of objection, their ground for opposing the Settlement, and

7 proof of both their status as a shareholder and the dates of stock ownership of Coherent. Only
8 shareholders who have filed and delivered valid and timely written notices of objection wil be

9 entitled to be heard at the Settlement Hearng unless the Cour orders otherwse.

10 If you wish to object to the Settlement, you must fie a written objection setting forth the
11 grounds for such an objection with the Cour on or before
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following paries:

, 2009, with service on the

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Clerk of the Cour UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 280 South First Street San Jose, CA 95113
Counsel for Plaintif

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Jeffrey D. Light COUGHLIN STOIA GELLER

RUDMA & ROBBINS LLP
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655 West Broadway, Suite 1900 San Diego, CA 92101
Nichole T. Brownng BAROW A Y TOPAZ KESSLER MELTZER & CHECK, LLP 580 Californa Street, Suite 1750 San Francisco, CA 94104

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Counsel for Coherent and the Coherent Special Litigation Committee
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Michael D. Torpey Michael C. Tu ORRCK, HERRGTON & SUTCLIFFE LLP
777 S. Figueroa Street, Suite 3200

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Los Angeles, CA 90017

NOTICE OF SETTEMENT - C-07-0955-JF

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1 Inquiries about the Action or the Settlement may be made to a representative of Lead

2 Counsel: Rick Nelson, clo Shareholder Relations, Coughlin Stoia Geller Rudman & Robbins LLP,

3 655 West Broadway, Suite 1900, San Diego, CA 92101; telephone [phone].

4

DATED
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, 2009

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S:\Settlement\Coherent Deriv.set\(v2) A!-OOO58960.doc

BY ORDER OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

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NOTICE OF SETTLEMENT - C-07-0955-JF

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1 CERTIFICATE OF SERVICE
2 I hereby certify that on September 8, 2009, I electronically fied the foregoing with the Clerk

3 of the Cour using the CM/CF system which will send notification of such filing to the e-mail
4 addresses denoted on the attched Electronic Mail Notice List, and I hereby certify that I have
5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/CF
6 paricipants indicated on the attched Manual Notice List.

7 I certify under penalty of perjur under the laws of the United States of America that the
8 foregoing is true and correct. Executed on September 8, 2009.

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s/Jeffrey D. Light ffFFREY D. LIGHT

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COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301
Telephone: [phone]

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619/231-7423 (fax)

E-mail: jeffl~csgrr.com

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CAND-ECF -

Page 1 of 1

Mailng Information for a Case 5:07-cv-00955-JF
Electronic Mail Notice List
The following are those who are curently on the list to receive e-mail notices for this case.

. Norman J. Blears
njblears~aw.com,disalvi(§hhlaw.com,lasobolev~aw.com,rbuehler~aw .com,kelder~aw .com,mjclouse(§hhaw.com,laweiss~aw.com,kwong~aw .com

. Nichole T. Browning

nbrownig(§btkc.com
. Travi E. DOWDS. III

travisd(§csgr.com,e _file _ sd(§csgr.com
. Kristi Kaye Elder

kelder~aw.com
. Geoffrey M. Ezgar

gezgar(§slaw.com
. John K. Grant

johng(§csgr.com,khuang(§csgr.com,e _file _sf(§csgr.com,cwood(§csgr.com,e _fie _ sd(§csgr.com
. Caz Hashemi

CHASHEMI(§WSGR.COM,vmendoza(§wsgr.com
. Kathleen Ann Herkenhoff

kathyh(§csgr.com
. Joshua Hil

Joshua.HiII(§Hellerehran.com
. Charles Ralph Jaeger

cjaeger(§hewm.com
. Justin Clay Jeffries

.üeffes(§slaw.com
. Sebastian Andres Jerez

sjerez(§fbm.com

. Jeffrey Michael Kaban mcintoshjc(§cooley.com,kabanjm(§cooley.com
. Alan Roth Plutzik

aplutzik(§bramsonplutzk.com
. Timothy Tully Scott

tscott(§kslaw.com
. Michael R Smith

mrsmith(§slaw.com
. Michael David Torpey

mtorpey(§orrck.com
. Michael Carl Tn

mtu(§orrck.com
. Diane Marie Walters

dwalters(§wsgr.com,smills(§wsgr.com
. Robin Eve Wechkin

rwechkin§hlaw.com
. Shawn A. Wiliams

shawnw(§csgr.com,FileRoomSF (§csgr. cornjdecena(§csgr.com,FileRoomSD(§csgr.com,travisd(§csgrr.com,e _file _ sf(§csgr.com,cwood(§csgr.com,e _file _ sd(§csgr.com
. Carl Brandon Wisoff

bwisoff(§fbrn.com,inppas(§fbm.com,calendar(§fbm.com
. Douglas R. Young

dyoung(§fbm.com,calenda(§fbm.com

Manual Notice List
ths case The following is the list attorneys who are not on the list to receive e-mail notices for of (who therefore requie manual noticing). You may wish to use your mouse to select

and copy this list into your word processing program in order to create notices or labels for these recipients.

Darren Jay Robins
Coughlin stoia Geller Rudman & Robbins LLP 655 West Broadway Suite 1900 San Diegoi CA 92101

https:llecf.cand.uscourts.gov/cgi-bin/aiIList.pl?42783072384 7466-L _170_0-1

9/8/2009

Manual Notice List

Lee D. Rudy Baroway Topaz Kessler Meltzer & Check, LLP

280 King of Prussia Road Radnor, PA 19087 610/667-7706
610/667-7056 (Fax)

Fran J. Johnson
Brett M. Weaver Johnson Bottini, LLP 655 West Broadway, Suite 1400 San Diego, CA 92101 619/230-0063
619/233-5535 (Fax)

Robert B. Weiser The Weiser Law Firm, P.C. 121 N. Wayne Avenue, Suite 100
Wayne, P A 19087

610/225-2677
610/225-2678 (Fax)