UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
| TROY LOWRY, derivatively on behalf of VIOLIN MEMORY, INC. Plaintiff, vs. DONALD G. BASILE, CORY J. SINDELAR, DIXON R. DOLL, JR., JEFFERY J. NEWMAN, HOWARD ALLEN BAIN III, LAWRENCE J. LANG, DAVID B. WALROD and MARK N. ROSENBLATT, Defendants, -and- VIOLIN MEMORY, INC., Nominal Defendant. |
CASE NO.: 4:13-cv-05768-YGR |
NOTICE OF SETTLEMENT OF STOCKHOLDER DERIVATIVE LITIGATION
TO: ALL PERSONS WHO OWN SHARES OF VIOLIN MEMORY, INC. (“COMPANY”)
COMMON STOCK AS OF JUNE 29, 2016 AND CONTINUE TO OWN SUCH SHARES (“COMPANY STOCKHOLDERS”):
THIS NOTICE IS GIVEN pursuant to an Order of the United States District Court for the United States District Court for the Northern District of California (the “Court”), to inform you of a proposed stipulated settlement (the “Settlement”) in the above-captioned derivative action (the “Action”).
Because this is a stockholder derivative action brought for the benefit of Violin Memory, Inc., no individual Company stockholder has the right to receive any individual compensation as a result of the settlement of this Action.
The Action involves breach of fiduciary and other claims, brought derivatively on behalf of the Company, against certain of its current and former directors and officers (the “Individual Defendants”), asserting that: (i) the Individual Defendants, while acting as members of the Company’s Board of Directors or as a Company officer, breached their fiduciary duties to the Company by failing to ensure the accurate and timely reporting of the Company’s operating results and financial condition; (ii) certain Individual Defendants were unjustly enriched through, among other things, the compensation they received from the Company at a time when the Company was experiencing losses; and (iii) the Individual Defendants wasted corporate assets in connection with certain Individual Defendants’ compensation, the Company’s initial public offering, and the alleged breaches of fiduciary duties.
YOU ARE HEREBY NOTIFIED THAT, a hearing will be held on October 25, 2016, at 2:00 p.m., before the Honorable Yvonne Gonzalez Rogers, at the United States District Court for the Northern District of California, Oakland Courthouse, Courtroom 1 – 4th Floor, 1301 Clay Street, Oakland, California 94612, for the purpose of determining whether the Settlement should be approved as fair, reasonable and adequate, and to consider other matters, including plaintiff’s counsel’s application for an award of attorneys’ fees and expenses in the amount of $280,000 and whether a final judgment dismissing the Action should be entered.
In accordance with the terms of the Settlement, and in consideration for certain broad releases, the Company has agreed to implement certain corporate-governance reforms within ninety days following final approval of the Settlement. These reforms include:
(i) the formalization of a disclosure committee, to be overseen by the Audit Committee, and to put effective procedures and protocols in place at the Company designed to:
(b) for reviewing with management and the Board its ongoing compliance with these protocols and procedures;
(ii) modifications to the Company’s Corporate Governance Guidelines:
(b) to help ensure that each director fulfills his or her fiduciary oversight duties by devoting sufficient attention to the Company’s business and operations;
(c) to impose a term limit on directors of 10 years; and
(d) to require that a majority of the members of the Board be independent;
(iii) providing for a formal process for stockholder proposals to be evaluated, including an initial evaluation by a committee of at least three independent directors;
(iv) modifications to the charter of the Company’s Audit Committee to provide that at least two members of the Audit Committee possess the expertise requirements for audit committee members of the SEC and to require that the Audit Committee shall meet, at a minimum, at least eight times annually;
(v) institution of director orientation and continuing education;
(vi) modifications to the Company’s charter for the Compensation Committee to provide that the Compensation Committee shall recommend to the Board annual and long-term performance goals for the CEO, and that compensation will be based on whether those performance goals are achieved;
(vii) the formalized reporting of any hotline reports to the Chairman of the Audit Committee;
(viii) disclosure of the Company’s Insider Trading policy; and
(ix) annual training for the Company’s employee regarding the Company’s Code of Business Conduct and Ethics.
Additionally, the Company has made certain changes to the Company’s policies, including the Compensation Committee Charter, Corporate Governance Guidelines, and Insider Trading and Communications Policy, in response to Plaintiff’s efforts in prosecuting the Action.
IF YOU ARE AN OWNER OF COMPANY COMMON STOCK, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT. This notice contains only a summary of the Action and the terms of the Settlement. If you are a current Company Stockholder, you may obtain a copy the Stipulation of Settlement, by visiting the website http://investor.violin-memory.com. Should you have any other questions regarding the proposed Settlement or the Action, please contact:
| Counsel for Plaintiff: | KAHN SWICK & FOTI, LLC Melinda A. Nicholson 206 Covington Street Madisonville, LA 70447 |
| Counsel for the Individual Defendants and the Company: | ORRICK HERRINGTON & SUTCLIFFE LLP James N. Kramer M. Todd Scott 405 Howard St. San Francisco, CA 94105 |
Any objection to the Settlement or to Plaintiff’s application for an award of attorneys’ fees and expenses must be filed with the Clerk of the Court, United States District Court for the Northern District of California, Oakland Courthouse, 1301 Clay Street, Oakland, California 94612) in this case numbered 4:13-cv-05768-YGR, no later than October 4, 2016 and served by hand or first class mail (postage prepaid) for delivery by the same date on counsel for Plaintiff (at the address listed below) and on counsel for Defendants (at the address listed below):
| Counsel for Plaintiff: | KAHN SWICK & FOTI, LLC Melinda A. Nicholson 206 Covington Street Madisonville, LA 70447 |
| Counsel for the Individual Defendants and the Company: | ORRICK HERRINGTON & SUTCLIFFE LLP James N. Kramer M. Todd Scott 405 Howard St. San Francisco, CA 94105 |
PLEASE DO NOT CALL OR WRITE THE COURT REGARDING THIS NOTICE.
| DATED: August 23, 2016 | BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA |