CLAUDIA WILKEN, District Judge.
WHEREAS, a class action is pending before the Court entitled In re Accuray Inc. Sec. Litig., Master File No. 4:09-cv-03362-CW (the "Litigation");
WHEREAS, the Court has received the Stipulation of Settlement, dated as of April 27, 2011 (the "Stipulation"), that has been entered into by the Lead Plaintiffs and Defendants, and the Court has reviewed the Stipulation and its attached Exhibits;
WHEREAS, the Settling Parties having made application, pursuant to Federal Rule of Civil Procedure 23(e), for an order preliminarily approving the settlement of this Litigation, in accordance with the Stipulation which, together with the Exhibits annexed thereto, sets forth the terms and conditions for a proposed Settlement of the Litigation and for dismissal of the Litigation with prejudice upon the terms and conditions set forth therein; and the Court having read and considered the Stipulation and the Exhibits annexed thereto; and
WHEREAS, all defined terms contained herein shall have the same meanings as set forth in the Stipulation;
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Court does hereby preliminarily approve the Stipulation and the Settlement set forth therein, subject to further consideration at the Final Approval Hearing described below.
2. A hearing (the "Final Approval Hearing") shall be held before this Court on September 1, 2011, at 2:00 p.m., at the Oakland Courthouse, 1301 Clay Street, Oakland California, to determine whether the proposed Settlement of the Litigation on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate to the Settlement Class and should be approved by the Court; whether a Judgment as provided in ¶1.14 of the Stipulation should be entered herein; whether the proposed Plan of Allocation should be approved; and to determine the amount of fees and expenses that should be awarded to Lead Counsel. The Court may reschedule the Final Approval Hearing without further notice to Members of the Settlement Class. Lead Counsel shall post notice of any change to the date or time of the Final Approval Hearing on the website, www.gilardi.com.
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court preliminarily certifies, for purposes of effectuating this Settlement, a Settlement Class of all Persons who purchased Accuray common stock during the period between February 7, 2007 and August 19, 2008, inclusive, and who were allegedly damaged thereby. Excluded from the Settlement Class are Defendants; any entity in which any Defendant has or had a controlling interest or that is a parent or subsidiary or is controlled by any Defendant; Defendants' officers and directors, including any person who was an officer or director during the Settlement Class Period; Defendants' affiliates, legal representatives, heirs, predecessors, successors or assigns; and members of the Individual Defendants' immediate families. Also excluded from the Settlement Class are those Persons who timely and validly request exclusion from the Settlement Class pursuant to the Notice of Pendency and Proposed Settlement of Class Action.
4. With respect to the Settlement Class, this Court preliminarily finds for purposes of effectuating this Settlement that (a) the Members of the Settlement Class are so numerous that joinder of all Settlement Class Members in the Litigation is impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over any individual questions; (c) the claims of the Lead Plaintiffs are typical of the claims of the Settlement Class; (d) the Lead Plaintiffs and Lead Counsel have fairly and adequately represented and protected the interests of all of the Settlement Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy, considering: (i) the interests of the Members of the Settlement Class in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by Members of the Settlement Class; (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum; and (iv) the difficulties likely to be encountered in the management of the class action.
5. The Court approves, as to form and content, the Notice of Pendency and Proposed Settlement of Class Action (the "Notice"), the Proof of Claim and Release form (the "Proof of Claim") and Summary Notice ("Summary Notice") annexed as Exhibits A-1, A-2 and A-3 hereto, and finds that the mailing and distribution of the Notice and publishing of the Summary Notice substantially in the manner and form set forth in ¶¶6-7 of this Order meet the requirements of Federal Rule of Civil Procedure 23, the Private Securities Litigation Reform Act of 1995 and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
6. Pursuant to Rule 53(c) of the Federal Rules of Civil Procedure, the Court appoints Gilardi & Co. LLC ("Claims Administrator") to supervise and administer the notice procedure as well as the processing of claims as more fully set forth below:
(a) Not later than June 14, 2011 (the "Notice Date"), Lead Counsel shall cause a copy of the Notice and the Proof of Claim, substantially in the forms annexed as Exhibits A-1 and A-2 hereto, to be mailed by first class mail to all Settlement Class Members who can be identified with reasonable effort;
(b) Not later than June 16, 2011, Lead Counsel shall cause the Summary Notice to be published once in Investor's Business Daily;
(c) Not later than June 14, 2011, Lead Counsel shall cause the Stipulation and its Exhibits to be posted on the following website:
(d) On or before July 15, 2011, Lead Counsel shall cause to be served on Defendants' counsel and filed with the Court proof, by affidavit or declaration, of such mailing, publishing and posting.
7. Nominees who hold or held Accuray common stock purchased between February 7, 2007 and August 19, 2008, inclusive, for the beneficial ownership of another Person, shall send the Notice and the Proof of Claim to such beneficial owners of such Accuray common stock within ten (10) days after receipt thereof, or send a list of the names and addresses of such beneficial owners to the Claims Administrator within ten (10) days of receipt thereof, in which event the Claims Administrator shall promptly mail the Notice and the Proof of Claim to such beneficial owners. Lead Counsel shall, if requested, reimburse banks, brokerage houses or other nominees solely for their reasonable out-of-pocket expenses incurred in providing notice to beneficial owners who are Settlement Class Members out of the Settlement Fund, which expenses would not have been incurred except for the sending of such notice, subject to further order of this Court with respect to any dispute concerning such compensation. Nominees who do not intend to comply with the provisions of this paragraph shall be requested to notify the Claims Administrator of that fact.
8. All Members of the Settlement Class shall be bound by all determinations and judgments in the Litigation concerning the Settlement, whether favorable or unfavorable to the Settlement Class.
9. Settlement Class Members who wish to participate in the Settlement shall complete and submit Proof of Claim forms in accordance with the instructions contained therein. Unless the Court orders otherwise, all Proof of Claim forms must be postmarked no later than September 12, 2011. Any Settlement Class Member who does not timely submit a Proof of Claim within the time provided for shall be barred from sharing in the distribution of the proceeds of the Net Settlement Fund, unless otherwise ordered by the Court or allowed by the Stipulation.
10. Any Person who desires to request exclusion from the Settlement Class shall do so within the time set forth and in the manner described in the Notice. Upon receiving any request(s) for exclusion the Claims Administrator shall promptly notify Lead Counsel and counsel for Defendants of such request(s) and provide them copies of such request(s) and documentation accompanying them by facsimile or electronic mail.
11. All Persons who submit valid and timely requests for exclusion in the manner set forth in the Notice shall have no rights under the Stipulation, shall not share in the distribution of the Net Settlement Fund, and shall not be bound by the Stipulation or the Judgment entered in the Litigation.
12. Any Member of the Settlement Class may enter an appearance in the Litigation, at his, her or its own expense, individually or through counsel of his, her or its own choice. If he, she or it does not enter an appearance, he, she or it will be represented by Lead Counsel.
13. Any Settlement Class Member may appear and show cause, if he, she or it has any reason, why the proposed Settlement of the Litigation should or should not be approved as fair, reasonable and adequate, why the Judgment should or should not be entered thereon, why the Plan of Allocation should or should not be approved, or why attorneys' fees and expenses should or should not be awarded to Lead Counsel; provided, however, that no Settlement Class Member or any other Person shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement, or, if approved, the Judgment to be entered thereon approving the same, or the order approving the Plan of Allocation, or the attorneys' fees and expenses to be awarded to Lead Counsel, unless that Person has postmarked and mailed on or before August 15, 2011 said objections to the Clerk of the United States District Court for the Northern District of California, and copies to Robbins Geller Rudman & Dowd LLP, Joy Ann Bull, 655 W. Broadway, Suite 1900, San Diego, CA 92101, and Wilson Sonsini Goodrich & Rosati, P.C., Ignacio E. Salceda, 650 Page Mill Road, Palo Alto, CA 94304. Any Settlement Class Member who does not make his, her or its objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed Settlement as set forth in the Stipulation, to the Plan of Allocation, or to the award of attorneys' fees and expenses to Lead Counsel, unless otherwise ordered by the Court.
14. All funds held by the Escrow Agent shall be deemed and considered to be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time as such funds shall be distributed pursuant to the Stipulation and/or further order(s) of the Court.
15. All papers in support of the Settlement, the Plan of Allocation, and the application for attorneys' fees or expenses shall be filed and served on or before July 15, 2011. These papers shall be made available on the website, www.gilardi.com. In its motion for final approval of the settlement Lead Counsel shall identify candidates for cy pres recipients and explain how their missions are related to the issues raised in this action. Any reply papers in response to objections shall be filed and served on or before August 26, 2011.
16. Neither the Defendants nor their Related Parties shall have any responsibility for, or liability with respect to, the Plan of Allocation or any application for attorneys' fees or expenses submitted by Lead Counsel, and such matters will be considered separately from the fairness, reasonableness and adequacy of the Settlement.
17. At or after the Final Approval Hearing, the Court shall determine whether the Plan of Allocation proposed by Lead Counsel, and any application for attorneys' fees or expenses shall be approved.
18. All reasonable expenses incurred in identifying and notifying Settlement Class Members, as well as administering the Settlement Fund, shall be paid as set forth in the Stipulation. In the event the Settlement is not approved by the Court, or otherwise fails to become effective, neither the Lead Plaintiffs nor Lead Counsel shall have any obligation to repay any amounts actually and properly disbursed from the Settlement Fund, as provided in the Stipulation.
19. Neither the Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by Defendants of the truth of any of the allegations in the Litigation, or of any liability, fault, or wrongdoing of any kind and shall not be construed as, or deemed to be evidence of, or an admission or concession that Lead Plaintiffs or any Settlement Class Members have suffered any damages, harm, or loss.
20. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation or the Effective Date does not occur, or in the event that the Settlement Fund, or any portion thereof, is returned to the Defendants, then this Order shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation.
21. The Court retains jurisdiction to consider all further applications arising out of or connected with the proposed Settlement. The Court may approve the Settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to the Settlement Class.
A federal court authorized this Notice. This is not a solicitation from a lawyer.
You or someone in your family may have purchased Accuray common stock between February 7, 2007 and August 19, 2008.
The Court sent you this Notice because you have a right to know about a proposed settlement of a class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement. If the Court approves the Settlement and after any objections or appeals are resolved, the Claims Administrator appointed by the Court will make the payments that the Settlement allows.
This package explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.
The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as In re Accuray Inc. Sec. Litig., Master File No. 4:09-cv-03362-CW. The individual and the pension fund that sued are called the Lead Plaintiffs, and the company and the individuals they sued, Accuray, Euan S. Thomson, Robert E. McNamara, John R. Adler, Jr., Wade B. Hampton and Ted Tu, are called the Defendants.
This case was brought as a class action alleging that Defendants made false and misleading statements and omissions between February 7, 2007 and August 19, 2008, inclusive, about Accuray's true financial and operational condition. The case asserts that the Defendants misrepresented and/or failed to disclose that Accuray's backlog of business was materially overstated with deals that did not have a substantially high probability of being booked as revenue, that Accuray misrepresented its contracting process with customers, that Accuray did not collect (or refunded) purportedly non-refundable deposits, and that Accuray recognized revenue upon shipment of international orders, as opposed to upon installation. Lead Plaintiffs assert that Defendants lacked a reasonable basis for the positive statements about Accuray's earnings and prospects, including its fiscal year 2008 revenue forecast, allegedly causing damage to the Settlement Class. Lead Plaintiffs assert that as a result of these matters, the market price of Accuray's common stock was artificially and improperly inflated between February 7, 2007 and August 19, 2008 and that, Settlement Class Members overpaid for Accuray common stock purchased during this time period. Defendants have denied and continue to deny that they did anything wrong or that Members of the Settlement Class were damaged. Among other things, Defendants deny that they misrepresented Accuray's financial results and that the revenue projections, statements regarding conversion of backlog to revenue, and statements about the amount of backlog are actionable.
In a class action, one or more people called class representatives (in this case the Court-appointed Lead Plaintiffs, Zhengxu He and the City of Brockton Retirement System) sue on behalf of people who have similar claims. Here, all these people are called the Settlement Class or Settlement Class Members. One court resolves the issues for all Settlement Class Members, except for those who timely and validly exclude themselves from the Settlement Class. Judge Claudia Wilken is in charge of this class action.
The Court did not decide in favor of the Lead Plaintiffs or Defendants. Instead, both sides agreed to a settlement. That way they avoid the cost and uncertainty of a trial, and eligible Settlement Class Members who submit valid claims will receive compensation. The Lead Plaintiffs and their attorneys think the Settlement is best for all Settlement Class Members.
To see if you will receive money from this Settlement, you first have to determine if you are a Settlement Class Member.
The Settlement Class includes
You are not a Settlement Class Member if you are a Defendant; or an entity in which any Defendant has or had a controlling interest or that is a parent or subsidiary or is controlled by any Defendant; a Defendant's officers and directors, including any person who was an officer or director during the Settlement Class Period; a Defendant's affiliates, legal representatives, heirs, predecessors, successors or assigns; or a member of an Individual Defendant's immediate family. You are also not a Settlement Class Member if you timely and validly request exclusion from the Settlement Class pursuant to this Notice.
If you sold Accuray common stock during the Settlement Class Period, that alone does not make you a Settlement Class Member. You are a Settlement Class Member only if you purchased Accuray common stock during the Settlement Class Period.
If you are still not sure whether you are included, you can ask for free help. You can call Rick Nelson of Robbins Geller Rudman & Dowd LLP at 619/231-1058 or Colin Holmes of Labaton Sucharow LLP at 888/219-6877 for more information. Or you can fill out and return the claim form described in question 10, to see if you qualify.
Defendants have agreed to pay $13.5 million in cash. The balance of this fund after payment of Court-approved attorneys' fees and expenses and the costs of claims administration, including the costs of printing and mailing this Notice and the cost of publishing newspaper notice (the "Net Settlement Fund") will be divided among all eligible Settlement Class Members who send in valid claim forms.
Your share of the Net Settlement Fund will depend on the number of valid claim forms that Settlement Class Members send in and the number of shares of Accuray common stock you purchased during the relevant period and when you bought and sold them. As discussed above in answer to Question 2, Lead Plaintiffs contend that, during the Settlement Class Period, Defendants misrepresented and/or failed to disclose certain important facts about Accuray's business and financial condition. Lead Plaintiffs assert that, as a result, the price of Accuray common stock was "artificially inflated" during the Settlement Class Period and Settlement Class Members paid more for Accuray common stock than they would have if the truth was known. The Plan of Allocation described below is based on this damage theory. As noted above in answer to Question 2, Defendants deny all of these contentions.
A claim will be calculated based on the following inflation per share amounts for Settlement Class Period common stock purchases and sales, as well as the statutory PSLRA 90-day look-back amount of $6.97:
For shares of Accuray common stock
(a) If sold on or between February 7, 2007 and August 19, 2008, the claim per share shall be the lesser of: (i) the inflation per share at the time of purchase, as shown in Table 1, less the inflation per share at the time of sale, as shown in Table 1; or (ii) the difference between the purchase price and the sales price.
(b) If held at the close of trading on August 19, 2008 and sold on or before November 16, 2008 the claim per share shall be the least of: (i) the inflation per share at the time of purchase, as shown in Table 1; (ii) the difference between the purchase price and the sales price; or (iii) the difference between the purchase price per share and the average closing price per share at the date of sale as set forth in Table 2 below.
(c) If held on November 17, 2008, or sold thereafter, the claim per share shall be the lesser of: (i) the inflation per share at the time of purchase, as shown in Table 1; or (ii) the difference between the purchase price per share and $6.97 (the statutory PSLRA 90-day look-back amount).
The date of purchase or sale is the "contract" or "trade" date as distinguished from the "settlement" date.
For Settlement Class Members who made multiple purchases or sales during the Settlement Class Period, the first-in, first-out ("FIFO") method will be applied to such holdings, purchases and sales for purposes of calculating a claim. Under the FIFO method, sales of common stock during the Settlement Class Period will be matched, in chronological order, against common stock purchased during the Settlement Class Period.
A Settlement Class Member will be eligible to receive a distribution from the Net Settlement Fund only if a Settlement Class Member had a net loss. All gains and losses (as calculated under the above plan) will be combined and thereafter netted against each other. In addition, no distribution will be made unless the amount of the check is at least $5.00.
To qualify for payment, you must be an eligible Settlement Class Member, send in a timely and valid claim form, and properly document your claim as requested in the claim form. A claim form is enclosed with this Notice. Read the instructions carefully, fill out the form, include all the documents the form asks for, sign it, and mail it in the enclosed envelope postmarked no later than September 12, 2011.
The Court will hold a hearing on September 1, 2011, at 2:00 p.m., to decide whether to approve the Settlement. If Judge Wilken approves the Settlement, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps several years. Everyone who sends in a claim form will be informed of the determination with respect to their claim. Please be patient.
Unless you timely and validly exclude yourself, you are a Member of the Settlement Class, and that means that you cannot sue, continue to sue, or be part of any other lawsuit against the Defendants about the Released Claims in this case. It also means that all of the Court's orders will apply to you and legally bind you and you will release your claims in this case against the Defendants. The terms of the release are included in the claim form that is enclosed.
If you do not want a payment from this Settlement, but you want to keep the right to sue or continue to sue the Defendants on your own for the Released Claims in this case, then you must take steps to get out of the Settlement Class. This is called excluding yourself or is sometimes referred to as opting out of the Settlement Class.
To exclude yourself from the Settlement Class you must send a letter by mail stating that you want to be excluded from In re Accuray Inc. Sec. Litig., Master File No. 4:09-cv-03362-CW. You must include your name, address, telephone number, your signature, and the number of shares of Accuray common stock you purchased between February 7, 2007 and August 19, 2008 and the dates of your purchases and any sales. You must mail your exclusion request postmarked no later than August 15, 2011, to:
You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you are not eligible to receive any settlement payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit.
No. Unless you timely and validly exclude yourself, you give up any right to sue the Defendants for the Released Claims in this Settlement. If you have a pending lawsuit against any of the Defendants, speak to your lawyer in that case immediately. Remember, the exclusion deadline is August 15, 2011.
No. If you exclude yourself, do not send in a claim form. But, you may be able to sue, continue to sue, or be part of a different lawsuit involving the Released Claims against the Defendants.
The Court appointed the law firms of Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP to represent you and other Settlement Class Members. These lawyers are called Lead Counsel. You will not be directly charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
Lead Counsel will ask the Court for attorneys' fees of 25% of the Settlement Fund and for expenses up to $325,000, plus interest which were incurred in connection with the litigation. In addition, Lead Plaintiffs may seek reimbursement of $500 for expenses incurred representing the Settlement Class. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses.
The attorneys' fees and expenses requested will be the only payment to Lead Counsel for their efforts in achieving this Settlement and for their risk in undertaking this representation on a wholly contingent basis. Lead Counsel have committed significant time and expenses in litigating this case for the benefit of the Settlement Class. To date, Lead Counsel have not been paid for their services in conducting this litigation on behalf of the Lead Plaintiffs and the Settlement Class, nor for their substantial expenses. The fees requested will compensate Lead Counsel for their work in achieving the Settlement Fund. The Court will decide what is a reasonable fee award and may award less than the amount requested by Lead Counsel.
You can tell the Court that you do not agree with the Settlement or some part of it.
The papers in support of approval of the Settlement, the Plan of Allocation and Lead Plaintiffs' counsel's fees and expense application will be filed and posted on
Objecting is simply telling the Court that you do not like something about the Settlement. You can object
The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to.
The Court will hold a fairness hearing at 2:00 p.m., on September 1, 2011, at the Oakland Courthouse, 1301 Clay Street, Oakland, California. At this hearing the Court will consider whether the Settlement is fair, reasonable, and adequate.
No. Lead Counsel will answer any questions Judge Wilken may have. But, you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you submitted your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.
You may ask the Court for permission to speak at the fairness hearing. To do so, you must send a letter saying that it is your intention to appear in In re Accuray Inc. Sec. Litig., Master File No. 4:09-cv-03362-CW. Be sure to include your name, address, telephone number, your signature, and the number of shares of Accuray common stock purchased between February 7, 2007 and August 19, 2008, inclusive. Your notice of intention to appear must be postmarked and mailed no later than August 15, 2011, to the Clerk of the Court, Lead Counsel, and Defendants' counsel, at the three addresses listed in question 18. If you intend to present evidence or witnesses, you must disclose that information and explain it in your letter. You cannot speak at the hearing if you exclude yourself from the Settlement Class.
If you do nothing, you will be a Settlement Class Member. However, you will not receive any money from this Settlement unless you submit a claim form. Unless you exclude yourself, you won't be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Defendants about the Released Claims in this case.
This Notice summarizes the proposed Settlement. More details are in the Stipulation of Settlement, dated as of April 27, 2011. You can obtain a copy of the Stipulation of Settlement by going to www.gilardi.com, or by writing to Rick Nelson, c/o Shareholder Relations, Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101, or from the Clerk's office at the United States District Court for the Northern District of California, 1301 Clay Street, Oakland, California during regular business hours.
You can call 619/231-1058 or write to Rick Nelson, c/o Shareholder Relations, Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101, or call 888/219-6877 or write to Colin Holmes, Labaton Sucharow LLP, 140 Broadway, New York, NY 10005, or visit the following website:
The Court has ordered that if you hold or held any Accuray common stock purchased between February 7, 2007 and August 19, 2008, inclusive, as nominee for a beneficial owner, then, within ten (10) days after you receive this Notice, you must either: (1) send a copy of this Notice by first class mail to all such Persons; or (2) provide a list of the names and addresses of such Persons to the Claims Administrator:
If you choose to mail the Notice and Proof of Claim yourself, you may obtain from the Claims Administrator (without cost to you) as many additional copies of these documents as you will need to complete the mailing. If you do not intend to comply with the provisions of this section you are requested to notify the Claims Administrator of that fact at the address listed above.
Regardless of whether you choose to complete the mailing yourself or elect to have the mailing performed for you, you may obtain reimbursement for, or advancement of, reasonable administrative costs actually incurred or expected to be incurred in connection with forwarding the Notice and which would not have been incurred but for the obligation to forward the Notice, upon submission of appropriate documentation to the Claims Administrator.
1. To recover as a Member of the Settlement Class based on your claims in the action entitled In re Accuray Inc. Sec. Litig., Master File No. 4:09-cv-03362-CW (the "Litigation"), you must complete and, on page 4 hereof, sign this Proof of Claim and Release form ("Proof of Claim"). If you fail to file a properly addressed (as set forth in paragraph 3 below) Proof of Claim, your claim may be rejected and you may be precluded from any recovery from the Net Settlement Fund created in connection with the proposed Settlement of the Litigation.
2. Submission of this Proof of Claim, however, does not assure that you will share in the proceeds of settlement in the Litigation.
3. YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM POSTMARKED ON OR BEFORE SEPTEMBER 12, 2011, ADDRESSED AS FOLLOWS:
If you are NOT a Member of the Settlement Class, as defined in the Notice of Pendency and Proposed Settlement of Class Action ("Notice"), DO NOT submit a Proof of Claim.
4. If you are a Member of the Settlement Class, you are bound by the terms of any judgment entered in the Litigation, WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM.
1. "Defendants" means Accuray Inc. and the Individual Defendants, as defined below.
2. "Individual Defendants" means Euan S. Thomson, Robert E. McNamara, John R. Adler, Jr., Wade B. Hampton and Ted Tu.
3. "Released Parties" means each and all of the Defendants and each and all of their Related Parties.
1. If you purchased Accuray common stock and held the certificate(s) in your name, you are the beneficial owner as well as the record holder. If, however, the certificate(s) were registered in the name of a third party, such as a brokerage firm or other nominee, you are the beneficial owner and the third party is the record holder.
2. Use Part I of this form entitled "Claimant Identification" to identify each holder of record ("nominee"), if different from the beneficial owner of Accuray common stock that forms the basis of this claim. THIS CLAIM MUST BE FILED BY THE ACTUAL BENEFICIAL OWNER(S), OR A PERSON AUTHORIZED TO ACT ON BEHALF OF SUCH OWNER(S) OF THE ACCURAY COMMON STOCK UPON WHICH THIS CLAIM IS BASED.
3. All joint owners (or a Person authorized to act on the owner's behalf) must sign this claim. Executors, administrators, guardians, conservators, trustees, or others authorized to act on behalf of a beneficial owner, must complete and sign this claim on behalf of Persons represented by them and their authority must accompany this claim and their titles or capacities must be stated. The Social Security (or taxpayer identification) number and telephone number of the beneficial owner may be used in verifying the claim. Failure to provide the foregoing information could delay verification of your claim or result in rejection of the claim.
1. Use Part II of this form entitled "Schedule of Transactions in Accuray Common Stock" to supply all required details of your transaction(s) in Accuray common stock. If you need more space or additional schedules, attach separate sheets giving all of the required information in substantially the same form. Sign and print or type your name on each additional sheet.
2. On the schedules, provide all of the requested information with respect to all of your purchases and all of your sales of Accuray common stock that took place at any time between February 7, 2007 and August 19, 2008, inclusive (the "Settlement Class Period"), and any sales between August 20, 2008 and November 17, 2008, whether such transactions resulted in a profit or a loss. Failure to report all such transactions may result in the rejection of your claim.
3. List each transaction in the Settlement Class Period separately and in chronological order, by trade date, beginning with the earliest. You must accurately provide the month, day and year of each transaction you list.
4. The date of covering a "short sale" is deemed to be the date of purchase of Accuray common stock. The date of a "short sale" is deemed to be the date of the sale of Accuray common stock.
5. Broker confirmations or other documentation of your transactions in Accuray common stock should be attached to your claim. Failure to provide this documentation could delay verification of your claim or result in rejection of your claim.
6. The above requests are designed to provide the minimum amount of information necessary to process the most simple claims. The Claims Administrator may request additional information as required to efficiently and reliably calculate your losses. In some cases where the Claims Administrator cannot perform the calculation accurately or at a reasonable cost to the Settlement Class with the information provided, the Claims Administrator may condition acceptance of the claim upon the production of additional information and/or the hiring of an accounting expert at the Claimant's cost.
I (We) submit this Proof of Claim and Release form under the terms of the Stipulation of Settlement, dated as of April 27, 2011 ("Stipulation"), described in the Notice. I (We) also submit to the jurisdiction of the United States District Court for the Northern District of California, with respect to my (our) claim as a Settlement Class Member (as defined in the Notice) and for purposes of enforcing the release set forth herein. I (We) further acknowledge that I am (we are) bound by and subject to the terms of any judgment that may be entered in the Litigation. I (We) agree to furnish additional information to Lead Counsel to support this claim if required to do so. I (We) have not submitted any other claim covering the same purchases or sales of Accuray common stock during the Settlement Class Period and know of no other Person having done so on my (our) behalf.
1. I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully, finally and forever settle, release, relinquish and discharge, all of the Released Claims against each and all of the Defendants and each and all of their "Related Parties" defined as each of a Defendant's past or present directors, officers, employees, partners, insurers, co-insurers, reinsurers, principals, controlling shareholders, attorneys, accountants, auditors, underwriters, investment advisors, personal or legal representatives, predecessors, successors, parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs, estates, related or affiliated entities, any entity in which a Defendant has a controlling interest, any members of an Individual Defendant's immediate family, any trust of which an Individual Defendant is the settlor or which is for the benefit of an Individual Defendant and/or any member of an Individual Defendant's immediate family, and any entity in which a Defendant and/or any member of an Individual Defendant's immediate family has or have a controlling interest (directly or indirectly).
2. "Released Claims" shall collectively mean all claims (including Unknown Claims as defined below), demands, rights, liabilities and causes of action of every nature and description whatsoever, known or unknown, contingent or absolute, mature or immature, discoverable or undiscoverable, whether concealed or hidden, suspected or unsuspected, which now exist, or heretofore have existed, asserted or that could have been asserted by the Lead Plaintiffs or any Settlement Class Member against the Defendants and their Related Parties based upon or arising out of both (a) the facts, transactions, events, occurrences, disclosures, statements, acts, omissions or failures to act which were or could have been alleged in the Litigation and (b) the purchase or acquisition of Accuray securities by the Lead Plaintiffs or any Settlement Class Member during the Settlement Class Period.
3. "Unknown Claims" means collectively any Released Claims that the Lead Plaintiffs or any Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties which, if known by him, her or it, might have affected his, her or its settlement with and release of the Released Parties, or might have affected his, her or its decision not to object to or opt out of this Settlement. With respect to any and all Released Claims, the Settling Parties stipulate and agree that, upon the Effective Date, Lead Plaintiffs shall expressly waive, and each of the Settlement Class Members shall be deemed to have waived, and by operation of the Judgment shall have waived, the provisions, rights and benefits of California Civil Code §1542, which provides:
Lead Plaintiffs shall expressly waive and each of the Settlement Class Members shall be deemed to have, and by operation of the Judgment shall have, expressly waived any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to California Civil Code §1542. Lead Plaintiffs and Settlement Class Members may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims, but Lead Plaintiffs shall expressly fully, finally and forever settle and release, and each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation PROOF OF CLAIM AND RELEASE - 4:09-cv-03362-CW of the Judgment shall have, fully, finally, and forever settled and released, any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. Lead Plaintiffs acknowledge, and the Settlement Class Members shall be deemed by operation of the Judgment to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement of which this release is a part.
4. This release shall be of no force or effect unless and until the Court approves the Stipulation and it becomes effective on the Effective Date.
5. I (We) hereby warrant and represent that I (we) have not assigned or transferred or purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this release or any other part or portion thereof.
6. I (We) hereby warrant and represent that I (we) have included information about all of my (our) transactions in Accuray common stock that occurred during the Settlement Class Period as well as the number of shares of Accuray common stock held by me (us) at the close of trading on August 19, 2008, and the number of shares of Accuray common stock held at the close of trading on November 17, 2008.
7. I (We) hereby warrant and represent that I am (we are) not excluded from the Settlement Class, as defined in the Notice of Pendency and Proposed Settlement of Class Action.
I (We) declare under penalty of perjury under the laws of the United States of America that the foregoing information supplied by the undersigned is true and correct.
Reminder Checklist:
1. Please sign the above release and declaration.
2. Remember to attach supporting documentation, if available.
3. Do not send original stock certificates.
4. Keep a copy of your claim form for your records.
5. If you desire an acknowledgment of receipt of your claim form, please send it Certified Mail, Return Receipt Requested.
6. If you move, please send us your new address.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Northern District of California, that a hearing will be held on September 1, 2011, at 2:00 p.m., before the Honorable Claudia Wilken at the Oakland Courthouse, 1301 Clay Street, Oakland, California, for the purpose of determining: (1) whether the proposed settlement of the claims in the Litigation for the sum of $13,500,000 in cash should be approved by the Court as fair, reasonable, and adequate; (2) whether a Settlement Class should be certified for purposes of the Settlement; (3) whether, thereafter, this Litigation should be dismissed with prejudice pursuant to the terms and conditions set forth in the Stipulation of Settlement, dated as of April 27, 2011 ("Stipulation"); (4) whether the Plan of Allocation is fair, reasonable, and adequate and therefore should be approved; and (5) whether the application of Lead Counsel for the payment of attorneys' fees (twenty-five percent of the Settlement Fund) and expenses incurred in connection with this Litigation should be approved.
If you purchased Accuray common stock during the period between February 7, 2007 and August 19, 2008, inclusive, and were allegedly damaged thereby, your rights may be affected by the settlement of this Litigation. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release form ("Proof of Claim"), you may obtain copies by writing to Accuray Securities Litigation, Claims Administrator, c/o Gilardi & Co. LLC, P.O. Box 8040, San Rafael, CA 94912-8040 or going to www.gilardi.com. If you are a Settlement Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim postmarked no later than September 12, 2011, establishing that you are entitled to recovery.
If you desire to be excluded from the Settlement Class, you must submit a request for exclusion postmarked by August 15, 2011, in the manner and form explained in the detailed Notice referred to above. All Members of the Settlement Class who do not timely and validly request exclusion from the Settlement Class will be bound by any judgment entered in the Litigation pursuant to the terms and conditions of the Stipulation.
Class members may submit an objection to the settlement and/or request for attorneys' fees. Any objection to the Settlement must be postmarked and mailed no later than August 15, 2011 to each of the following:
