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Case 2:07-cv-02750-CAS-SH Document 196 Filed 11/12/2009 Page 2 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Howard Bailey, Steven M. Krausz, Robert B. Abbott, Thomas Weisel Partners LLC (“TWP”), USVP 5 Funds and USVP 7 Funds (“USVP”), Norwest Venture Partners, Norwest Venture VIII L.P. and NVP Entrepreneurs Fund VIII L.P. (“NVP”), PricewaterhouseCoopers LLP, and Singer Lewak Greenbaum & Goldstein LLP (“Singer Lewak”) (the “Defendants,” collectively the “Parties”), and the Court has reviewed the Stipulation and its attached Exhibits; and WHEREAS, the Parties having made application, pursuant to Federal Rule of Civil Procedure 23(e), for an order preliminarily approving the settlement of the 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 hereby certifies the following class for settlement purposes only: All Persons or entities (and their beneficiaries) who (a) purchased or otherwise acquired the common stock of Occam between April 29, 2004 and October 15, 2007, inclusive, and/or (b) purchased during the Class Period the common stock of Occam in or traceable to Occam’s November 2006 secondary public offering. Excluded from the Class are the Defendants, members of the immediate families of the Defendants, the former and current directors, officers, subsidiaries and affiliates of the Defendants, as well as any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest and the legal representatives, affiliates, heirs, - 2 -
Case 2:07-cv-02750-CAS-SH Document 196 Filed 11/12/2009 Page 3 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 successors-in-interest, or assigns of any such excluded party. Also excluded from the Class are those Persons who timely and validly request exclusion from the Class pursuant to the Notice of Pendency and Proposed Settlement of Class Action. 2. With respect to the Class, this Court finds that: (a) the members of the Class are so numerous that joinder of all Class Members is impracticable; (b) there are questions of law and fact common to members of the Class which predominate over any individual question; (c) the claims of Lead Plaintiff are typical of the claims of the Class; (d) Lead Plaintiff and its counsel have fairly and adequately represented and protected the interests of the respective members of the Class; 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 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 Class; (iii) the desirability or undesirability of concentrating the litigation of these claims in this particular forum; and (iv) the difficulties likely to be encountered in the management of the class action. 3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of settlement only, the Court certifies NECA-IBEW Pension Fund (The Decatur Plan) as class representative for the Class. Lead Counsel is authorized to act on behalf of the Class with respect to all acts required by, or which may be undertaken pursuant to, the stipulation or such other acts that are reasonably necessary to consummate the proposed settlement set forth in the Stipulation. 4. The Court does hereby preliminarily approve the Stipulation and the settlement set forth therein, subject to further consideration at the Settlement Hearing described below. 5. A hearing (the “Settlement Hearing”) shall be held before this Court on February 22, 2010, at 10:00 a.m., at the United States District Court, Central District - 3 -
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