Free Stipulation - District Court of California - California

Case 5:08-cv-03688-RS

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HULETT HARPER STEWART LLP KIRK B. HULETT, SBN: 110726 BLAKE MUIR HARPER, SBN: 115756 SARAH P. WEBER, SBN: 239979 550 West C Street, Suite 1600 San Diego, CA 92101 Telephone: (619) 338-1133 Facsimile: (619) 338-1139 e-mail: [email protected] [email protected] [email protected] Attorneys for Plaintiff, Capital Partners [Additional Counsel on Signature Page] IN THE UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA ­ SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIP SHORTENING TIME PURSUANT TO CIVIL L.R. 6-2; Case No. 08-03688RS v. DR. MALCOLM J. THOMPSON, JEFFREY A. HAWTHORNE, TERRY H. CARLITZ, DR. DONALD C. FRASER, EDWARD ROGAS, JR., CURTIS S. WOZNIAK, PHOTON DYNAMICS, INC. AND ORBOTECH, LTD., Defendants. CAPITAL PARTNERS, on Behalf of Itself and All Others Similarly Situated, Plaintiff, Case No. 08-03688RS STIPULATION AND [PROPOSED] ORDER SHORTENING TIME PURSUANT TO CIVIL L.R. 6-2 DATE: TIME: JUDGE: DEPT: TBD TBD Magistrate Judge Richard Seeborg Courtroom 4, 5th Floor

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WHEREAS, Plaintiff Capital Partners, a shareholder of Photon Dynamics, Inc. ("Photon Dynamics") (which is a California corporation headquartered in San Jose) brought the present action in the Superior Court of California, Santa Clara County (the "State Court") on July 25, 2008, challenging the pending acquisition of Photon Dynamics by Orbotech, Ltd. ("Orbotech") (the "Sale Agreement"); and WHEREAS, Plaintiff asserts claims against Photon Dynamics and its directors for breach of fiduciary duty under California law, and a claim against Orbotech for aiding and abetting those breaches of fiduciary duties under California Law; and WHEREAS, on August 1, 2008, Defendants, other than Orbotech, filed a notice of removal to this Court; WHEREAS also on August 1, 2008, at about the same time, Plaintiff served and filed a motion in the state court seeking (i) a temporary restraining order enjoining the Defendants from consummating the transaction challenged in the above captioned action until expedited discovery and a preliminary injunction hearing could occur and (ii) an order granting expedited discovery and scheduling a post-expedited discovery hearing date on a motion for a preliminary injunction; WHEREAS, Plaintiff and Defendants have subsequently reached an agreement providing that the transaction will not be consummated until at least September 5, 2008 and an agreement providing for consensual expedited discovery; and WHEREAS, Plaintiff seeks to have a motion for a preliminary injunction heard and decided prior to the September 5, 2008 date of the shareholder vote (the date on which the sale of Photon Dynamics is likely to close), which Plaintiff believes is necessary in order for relief to be effective; and WHEREAS, Plaintiff believes this case was improperly removed and is concurrently filing an Emergency Motion to Remand, or Alternatively to Schedule a Preliminary Injunction Hearing which seeks to promptly remand this case so that a motion for a preliminary injunction may be heard by the state court prior to September 5, 2008, or if such a prompt removal is not possible then alternatively to schedule a date for a preliminary injunction motion to be heard by this Court on or before September 5, 2008; and 1 STIP SHORTENING TIME PURSUANT TO CIVIL L.R. 6-2; Case No. 08-03688RS

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WHEREAS, Defendants other than Orbotech believe the action was removed properly but consent to expedited consideration of Plaintiff's emergency motion to remand. NOW THEREFORE PURSUANT TO THE NORTHERN DISTRICT CIVIL RULE 6-2, IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS: 1. Plaintiff shall file and serve its Emergency Motion to Remand, or Alternatively to

Schedule a Preliminary Injunction Hearing by August 7, 2008; 2. Defendants shall file and serve any opposition papers to Plaintiff's motion by

August 12, 2008; 3. The Court may rule upon Plaintiff's Emergency Motion to Remand, or

Alternatively to Schedule a Preliminary Injunction Hearing at its earliest convenience thereafter. IT IS SO STIPULATED.1 I hereby attest that I have received assent to the foregoing stipulation and entry of the proposed order by the parties by and through their attorneys. DATED: August 7, 2008 HULETT HARPER STEWART LLP KIRK B. HULETT BLAKE MUIR HARPER SARAH P. WEBER /s/ Sarah P. Weber SARAH P. WEBER 550 West C Street, Suite 1600 San Diego, CA 92101 Telephone: (619) 338-1133 Facsimile: (619) 338-1139 Attorneys for Plaintiff, Capital Partners THE BRUALDI LAW FIRM, P.C. RICHARD B. BRUALDI GAITRI BOODHOO SUE LEE AYESHA N. ONYEKWELU 29 Broadway-24th Floor New York, NY 10006 Telephone: (212) 952-0602 Facsimile: (212) 952-0608 Of Counsel for Plaintiff, Capital Partners Orbotech contends that it has not been properly served, and it has not appeared in this litigation. Orbotech's counsel has advised that it will not seek to be heard on the issue of whether plaintiff's emergency motion to remand should be given expedited consideration. 2 STIP SHORTENING TIME PURSUANT TO CIVIL L.R. 6-2; Case No. 08-03688RS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 DATED: ____________________ 16 17 18 19 20 21 22 23 24 25 26 27 28 3 STIP SHORTENING TIME PURSUANT TO CIVIL L.R. 6-2; Case No. 08-03688RS _______________________________________ MAGISTRATE JUDGE RICHARD SEEBORG UNITED STATES DISTRICT COURT /s/ Neal A. Potischman NEAL A. POTISCHMAN 1600 El Camino Real Menlo Park, CA 94025 Telephone: (650) 752-2000 Facsimile: (650) 752-2111 E-mail: [email protected] [email protected] Attorneys for Defendants, Photon Dynamics, Inc., Dr. Malcolm J. Thompson, Jeffrey A. Hawthorne, Terry H. Carlitz, Dr. Donald C. Fraser, Edward Rogas, Jr., and Curtis S. Wozniak PURSUANT TO STIPULATION, IT IS SO ORDERED. DATED: August 7, 2008 DAVIS POLK & WARDWELL LLP NEAL A. POTISCHMAN, SBN: 254862 STEPHANIE E. LOCKWOOD, SBN: 238215

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HULETT HARPER STEWART LLP KIRK B. HULETT, SBN: 110726 BLAKE MUIR HARPER, SBN: 115756 SARAH P. WEBER, SBN: 239979 550 West C Street, Suite 1600 San Diego, CA 92101 Telephone: (619) 338-1133 Facsimile: (619) 338-1139 e-mail: [email protected] [email protected] [email protected] Attorneys for Plaintiff, Capital Partners [Additional Counsel on Signature Page] IN THE UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA ­ SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECL OF S.P. WEBER IN SUPP OF STIP SHORTENING TIME; Case No. 08-03688RS v. CAPITAL PARTNERS, on Behalf of Itself and All Others Similarly Situated, Plaintiff, Case No. 08-03688RS DECLARATION OF SARAH P. WEBER IN SUPPORT OF STIPULATION SHORTENING TIME PURSUANT TO CIVIL L.R. 6-2 Magistrate Judge Richard Seeborg Courtroom 4, 5th Floor

DR. MALCOLM J. THOMPSON, JEFFREY JUDGE: A. HAWTHORNE, TERRY H. CARLITZ, DEPT: DR. DONALD C. FRASER, EDWARD ROGAS, JR., CURTIS S. WOZNIAK, PHOTON DYNAMICS, INC. AND ORBOTECH, LTD., Defendants.

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I, SARAH P. WEBER, declare and say: 1. I am an attorney duly admitted to practice before this Court. I am an associate

with the law firm of Hulett Harper Stewart LLP, one of the counsel for Plaintiff in the above captioned action. I submit this declaration in support of the accompanying Stipulation Shortening Time Pursuant to Civil L. R. 6-2. I have personal knowledge of the matters stated herein and if called as a witness, I could and would competently testify to the following. 2. At Plaintiff's request, the parties have stipulated to shorten the briefing schedule

on Plaintiff's Emergency Motion to Remand, or Alternatively, to Schedule a Hearing for a Motion for a Preliminary Injunction to Be Held on or Before September 5, 2008. The reasons for Plaintiff's request follow. 3. On July 25, 2008, Plaintiff Capital Partners, a shareholder of Photon Dynamics,

Inc. ("Photon Dynamics") (which is a California corporation headquartered in San Jose) brought the present action in the Superior Court of California, Santa Clara County (the "State Court"), challenging the pending acquisition of Photon Dynamics by Orbotech, Ltd. ("Orbotech") (the "Sale Agreement"). 4. Plaintiff asserts claims against Photon Dynamics and its directors for breach of

fiduciary duty under California law, and a claim against Orbotech for aiding and abetting those breaches of fiduciary duties under California Law. 5. On August 1, 2008, Plaintiff served and filed a motion seeking (i) a temporary

restraining order enjoining the Defendants from consummating the Sale Agreement until expedited discovery and a preliminary injunction hearing could occur and (ii) an order granting expedited discovery and scheduling a post-expedited discovery hearing date on a motion for a preliminary injunction. 6. this Court. 7. Plaintiff and Defendants have subsequently reached an agreement providing that On that same day, Defendants, other than Orbotech, filed a notice of removal to

the Sale Agreement will not be consummated until at least September 5, 2008 and an agreement providing for consensual expedited discovery. 1 DECL OF S.P. WEBER IN SUPP OF STIP SHORTENING TIME; Case No. 08-03688RS

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8.

However, Plaintiff still seeks to have a motion for a preliminary injunction heard

and decided prior to the September 5, 2008 date the sale of Photon Dynamics to Orbotech is scheduled to close, a motion Plaintiff believes is necessary in order for relief to be effective. See Pridgen v. Andresen, Civ. 3:94CV851(AVC), 1994 U.S. Dist. LEXIS 21383, at *14 (D. Conn. June 13, 1994) (finding "irreparable harm if the special shareholders meeting is not enjoined [as] the shareholders of a corporation have a right to a full and accurate disclosure of the facts"); In re Netsmart Tech., Inc. S'holders Litig., 924 A.2d 171, 207-08 (Del. Ch. 2007) (granting preliminary injunction where inadequate disclosures alleged). 9. Plaintiff believes this case was improperly removed to federal court and thus seeks

to have its emergency motion to remand promptly heard so that the case may be remanded and a motion for a preliminary injunction may be heard by the state court prior to September 5, 2008. 10. 11. No previous time modifications have been sought in this action. To the best of my knowledge, the requested time modification would have a

minimal effect, if at all, on the schedule for the case, although it is essential if the state court is to hold a preliminary injunction hearing on or before September 5, 2008. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 7th day of August, 2008, in San Diego, California.

/s/ Sarah P. Weber SARAH P. WEBER

2 DECL OF S.P. WEBER IN SUPP OF STIP SHORTENING TIME; Case No. 08-03688RS