Case5:09-cv JW Document146-3 Filed08/25/11 Page1 of 13. Exhibit A-2

Transcription

1 Case5:09-cv JW Document146-3 Filed08/25/11 Page1 of 13 Exhibit A-2

2 Case5:09-cv JW Document146-3 Filed08/25/11 Page2 of 13 1 SCOTT+SCOTT LLP MARY K. BLASY (211262) 2 WALTER W. NOSS (pro hac vice) 707 Broadway, Tenth Floor 3 San Diego, CA Telephone: Facsimile: mblasy@scott-scott.com 5 wnoss@scott-scott.com 6 and 7 DAVID R. SCOTT (pro hac vice) P.O. Box South Main Street Colchester, CT Telephone: Facsimile: drscott@scott-scott.com 11 Lead Counsel for Plaintiffs 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SHARON HODGES, On Behalf of Herself and No. C JW All Others Similarly Situated, 16 CLASS ACTION Plaintiff, 17 vs. PROOF OF CLAIM AND RELEASE 18 AKEENA SOLAR, INC., BARRY CINNAMON EXHIBIT A-2 19 and GARY EFFREN, Defendants PROOF OF CLAIM AND RELEASE NO. C JW

3 Case5:09-cv JW Document146-3 Filed08/25/11 Page3 of 13 1 I. GENERAL INSTRUCTIONS 2 1. To recover as a Member of the Class based on your claims in the action entitled 3 Sharon Hodges v. Akeena Solar, Inc., N.D. Cal., Case No. C JW (the Litigation ), you 4 must complete and, on page 10 hereof, sign this Proof of Claim and Release. If you fail to file a 5 properly addressed (as set forth in paragraph 3 below) Proof of Claim and Release, your claim may 6 be rejected and you may be precluded from any recovery from the Net Settlement Fund created in 7 connection with the proposed settlement of the Litigation Submission of this Proof of Claim and Release, however, does not assure that you 9 will share in the proceeds of settlement in the Litigation YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM 11 AND RELEASE POSTMARKED ON OR BEFORE DECEMBER 21, 2011, ADDRESSED AS 12 FOLLOWS: 13 Akeena Solar Securities Litigation Claims Administrator 14 c/o The Garden City Group, Inc. P.O. Box Dublin, OH If you are NOT a Member of the Class, as defined in the Notice of Pendency and Proposed 17 Settlement of Class Action ( Notice ), DO NOT submit a Proof of Claim and Release form If you are a Member of the Class, you are bound by the terms of any judgment 19 entered in the Litigation, WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM AND 20 RELEASE FORM. 21 II. DEFINITIONS Defendants means Akeena Solar, Inc., and the Individual Defendants. 2. Individual Defendants means Barry Cinnamon and Gary Effren. 3. Released Persons means, collectively, (a) each and all of the Defendants, each and 25 all of Defendants respective past, present, or future parents, subsidiaries, affiliates, successors, 26 predecessors, assigns, an entity in which an Defendant has or have a controlling interest (directly p ^ ^ ^ Y ty^ Y g^ ( Y 27 or indirectly), members of any Individual Defendant s immediate family, any entity in which any PROOF OF CLAIM AND RELEASE NO. C JW - 1 -

4 Case5:09-cv JW Document146-3 Filed08/25/11 Page4 of 13 1 member of any Individual Defendant s immediate family has or had a controlling interest (directly or 2 indirectly), and any trust of which any Defendant is the settlor or which is for the benefit of any 3 Defendant and/or member(s) of his family, and (b) each and all of their respective past, present, or 4 future accountants, administrators, advisors, affiliates, agents, analysts, assignees, assigns, 5 associates, attorneys, auditors, co-insurers, commercial bank lenders, consultants, controlling 6 shareholders, directors, divisions, employees, employers, executors, financial advisors, general or 7 limited partners, general or limited partnerships, heirs, insurers, investment advisors, investment 8 bankers, investment banks, joint ventures and joint venturers, managers, marital communities, 9 members, officers, parents, personal or legal representatives, predecessors, principals, reinsurers, 10 representatives, shareholders, spouses, subsidiaries, successors, and underwriters All capitalized terms not otherwise defined herein shall have the meanings set forth in 12 the Stipulation of Settlement dated August 24, 2011 (the Stipulation ). 13 III. CLAIMANT IDENTIFICATION If you purchased shares of Akeena Solar common stock and held the certificate(s) in 15 your name, you are the beneficial purchaser as well as the purchaser of record. If, however, the 16 certificate(s) were registered in the name of a third party, such as a nominee or brokerage firm, you 17 are the beneficial purchaser and the third party is the purchaser of record Use Part I of this form entitled Claimant Identification to identify each purchaser of 19 record, if different from the beneficial purchaser of Akeena Solar common stock that are the subject 20 of this claim. THIS CLAIM MUST BE FILED BY THE ACTUAL BENEFICIAL 21 PURCHASER(S) OR ACQUIRER(S) OR THE LEGAL REPRESENTATIVE OF SUCH 22 PURCHASER(S) OR ACQUIRER(S) OF THE AKEENA SOLAR COMMON STOCK UPON 23 WHICH THIS CLAIM IS BASED All joint purchasers must sign this claim. Executors, administrators, guardians, 25 conservators, and trustees must complete and sign this claim on behalf of Persons represented by 26 them and their authority must accompany this claim and their titles or capacities must be stated. The 27 Social Security (or taxpayer identification) number and telephone number of the beneficial owner PROOF OF CLAIM AND RELEASE NO. C JW - 2 -

5 Case5:09-cv JW Document146-3 Filed08/25/11 Page5 of 13 1 may be used in verifying the claim. Failure to provide the foregoing information could delay 2 verification of your claim or result in rejection of the claim. 3 IV. CLAIM FORM 4 1. Use Part II of this form entitled Schedule of Transactions in Akeena Solar Common 5 Stock to supply all required details of your transaction(s) in Akeena Solar common stock. If you 6 need more space or additional schedules, attach separate sheets giving all the required information in 7 substantially the same form. Sign and print or type your name on each additional sheet On the schedules, provide all of the required information with respect to all of your 9 purchases or other acquisitions of Akeena Solar securities that took place at any time between 10 December 26, 2007 and March 13, 2008, inclusive (the Class Period ), all of your purchases or 11 acquisitions of Akeena Solar common stock that took place at any time between March 14, 2008 and 12 June 11, 2008, inclusive, and all your sales of Akeena Solar securities that took place at any time 13 between December 26, 2007 and June 16, 2008, inclusive, whether such transactions resulted in a 14 profit or a loss. Failure to report all such transactions may result in the rejection of your claim List each transaction in the Class Period separately and in chronological order, by 16 trade date, beginning with the earliest. You must accurately provide the month, day, and year of 17 each transaction you list The date of covering a short sale is deemed to be the date of purchase of Akeena 19 Solar common stock. The date of a short sale is deemed to be the date of sale of Akeena Solar 20 common stock Broker confirmations or other documentation of your transactions in Akeena Solar 22 common stock should be attached to your claim. Failure to provide this documentation could delay 23 verification of your claim or result in rejection of your claim The above requests are designed to provide the minimum amount of information 25 necessary to process the simplest claims. The Claims Administrator may request additional 26 information as required to efficiently and reliably calculate your losses. In some cases where the 27 Claims Administrator cannot perform the calculation accurately or at a reasonable cost to the Class with the information provided, the Claims Administrator may condition acceptance of the claim PROOF OF CLAIM AND RELEASE NO. C JW - 3 -

6 Case5:09-cv JW Document146-3 Filed08/25/11 Page6 of 13 1 upon the production of additional information and/or the hiring of an accounting expert at the 2 claimant s cost PROOF OF CLAIM AND RELEASE NO. C JW - 4 -

7 Case5:09-cv JW Document146-3 Filed08/25/11 Page7 of 13 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 Sharon Hodges v. Akeena Solar, Inc. 4 N.D. Cal., Case No. C JW 5 PROOF OF CLAIM AND RELEASE 6 Must Be Postmarked No Later Than: 7 December 21, Please Type or Print 9 PART I: CLAIMANT INFORMATION Beneficial Owner s Name (First, Middle, Last) 12 Street Address City State Zip Code Foreign Province Foreign Country Individual 17 Social Security Number or 18 Taxpayer Identification Number Corporation/Other 19 (work) Area Code Telephone Number 20 (home) 21 Area Code Telephone Number Record Owner s Name (if different from beneficial owner listed above) PROOF OF CLAIM AND RELEASE NO. C JW - 5 -

8 Case5:09-cv JW Document146-3 Filed08/25/11 Page8 of 13 1 PART II: SCHEDULE OF TRANSACTIONS IN AKEENA SOLAR COMMON STOCK 2 A. Purchases or Acquisitions of Shares Akeena Solar Common Stock ( Shares ) 3 (December 26, 2007 March 13, 2008, inclusive): 4 Trade Date Number of Total Mo. Day Year Purchased or Acquired Purchase or Acquisition 5 Price IMPORTANT: If any purchases listed were covered by a short sale, please mark Yes: 10 B. Purchases or acquisitions of Akeena Solar Shares during the time period from March 14, 2008 to June 16, 2008, inclusive: 11 C. Sales of Akeena Solar Shares (December 26, 2007 to June 16, 2008, inclusive): 12 Trade Date Number of Shares Total 13 Mo. Day Year Sold Sales Price D. Number of Akeena Solar Shares held at the close of trading on June 16, 2008: If you require additional space, attach extra schedules in the same format as above. Sign and print your name on each additional page YOU MUST READ AND SIGN THE RELEASE ON PAGE TEN. PROOF OF CLAIM AND RELEASE NO. C JW - 6 -

9 Case5:09-cv JW Document146-3 Filed08/25/11 Page9 of 13 1 V. SUBMISSION TO JURISDICTION OF COURT AND ACKNOWLEDGMENTS 2 I (We) submit this Proof of Claim and Release under the terms of the Stipulation described in 3 the Notice. I (We) also submit to the jurisdiction of the United States District Court for the Northern 4 District of California, with respect to my (our) claim as a Class Member (as defined in the Notice) 5 and for purposes of enforcing the release set forth herein. I (We) further acknowledge that I am (we 6 are) bound by and subject to the terms of any judgment that may be entered in the Litigation. I (We) 7 agree to furnish additional information to Lead Counsel to support this claim if required to do so. I 8 (We) have not submitted any other claim covering the same purchases, acquisitions, or sales of 9 Akeena Solar common stock during the Class Period and know of no other Person having done so on 10 my (our) behalf. 11 VI. RELEASE I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully, 13 finally, and forever settle, release, relinquish, and discharge, all of the Released Claims against each 14 and all of the Released Persons (as defined above) and shall not sue any Released Person with 15 respect to any and all such Released Claims Released Claims means any and all claims (including, without limitation, Unknown 17 Claims, as defined below), demands, rights, liabilities, suits, debts, obligations and causes of action 18 of every nature and description whatsoever, whether known or unknown, contingent or absolute, 19 mature or unmature, discoverable or undiscoverable, liquidated or unliquidated, accrued or 20 unaccrued, concealed or hidden, regardless of legal theory, including, without limitation, claims for 21 negligence, gross negligence, recklessness, intentional wrongdoing, fraud, breach of fiduciary duty, 22 breach of the duty of care and/or loyalty or violations of the common law, administrative rule or 23 regulation, tort, contract, equity, or otherwise or of any state or federal statutes, rules or regulations 24 or international law, or the law of any foreign jurisdiction, that were asserted or could have been or 25 might have been asserted in the Litigation or in any other litigation, action, or forum by Plaintiffs or 26 the Class Members, or any of them, against the Released Persons, or any of them, based upon, 27 arising out of, in connection with, or related in any way, directly or indirectly, in whole or in part, to (i) the claims or facts and circumstances that were alleged in the Amended Complaint for Violations PROOF OF CLAIM AND RELEASE NO. C JW - 7 -

10 Case5:09-cv JW Document146-3 Filed08/25/11 Page10 of 13 1 of the Federal Securities Laws or asserted in this Litigation; (ii) the purchase or other acquisition of 2 Akeena Solar securities during the Class Period by Class Members; or (iii) the settlement of the 3 Litigation, the release of the Released Claims, or both. Released Claims does not include claims 4 to enforce the Settlement. Released Claims also does not mean or include the derivative claims 5 asserted on behalf of the Company in Dulgarian v. Cinnamon, et al., No. 10-CV , pending in 6 Santa Clara County Superior Court, State of California Unknown Claims means, collectively, any and all Released Claims that Plaintiffs or 8 any other Class Member does not know or suspect to exist in his, her or its favor at the time of the 9 release of the Released Persons which, if known by him, her or it, might have affected his, her or its 10 decision to enter into this Settlement with and release of the Released Persons, or might have 11 affected his, her, or its decision not to object to this Settlement. Unknown Claims include those 12 claims in which some or all of the facts composing the claim may be suspected, or are even 13 undisclosed or hidden. With respect to any and all Released Claims, the Settling Parties stipulate 14 and agree that, upon the Effective Date, Plaintiffs shall expressly waive and relinquish, and each of 15 the other Class Members shall be deemed to have, and by operation of the Judgment shall have, 16 expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and 17 benefits of California Civil Code 1542, which provides: 18 A general release does not extend to claims which the creditor does not 19 know or suspect to exist in his or her favor at the time of executing the release, 20 which if known by him or her must have materially affected his or her 21 settlement with the debtor. 22 Plaintiffs shall expressly waive and relinquish, and each of the other Class Members shall be deemed 23 to have, and by operation of the Judgment shall have, expressly waived and relinquished, to the 24 fullest extent permitted by law, any and all provisions, rights, and benefits conferred by any law of 25 the United States, or by the law of any state or territory of the United States, or principle of common 26 law or of international or foreign law, that is similar, comparable, or equivalent in effect to 27 California Civil Code It is understood that Plaintiffs and the other Class Members may hereafter discover facts in addition to or different from those that he, she, or it now knows or PROOF OF CLAIM AND RELEASE NO. C JW - 8 -

11 Case5:09-cv JW Document146-3 Filed08/25/11 Page1 1 of 13 1 believes to be true with respect to the subject matter of the Released Claims (including Unknown 2 Claims), but Plaintiffs shall expressly fully, finally, and forever discharge, settle, and release, and 3 each of the other Class Members, upon the Effective Date, shall be deemed to have, and by operation 4 of the Judgment shall have, fully, finally, and forever discharged, settled, and released, any and all 5 Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, 6 whether or not concealed or hidden, that now exist, or heretofore have existed, upon any theory of 7 law or equity now existing or coming into existence in the future, including, but not limited to, 8 conduct that is negligent, grossly negligent, reckless, intentional, with or without malice, or a breach 9 of any duty, law or rule, without regard to the subsequent discovery or existence of such different or 10 additional facts. Plaintiffs acknowledge, and the other Class Members shall be deemed by operation 11 of the Judgment to have acknowledged, that the foregoing waiver was separately bargained for and a 12 key element of the Settlement of which this release is a part This release shall be of no force or effect unless and until the Court approves the 14 Stipulation and the Stipulation becomes effective on the Effective Date (as defined in the 15 Stipulation) I (We) hereby warrant and represent that I (we) have not assigned or transferred or 17 purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this 18 release or any other part or portion thereof I (We) hereby warrant and represent that I (we) have included information about all 20 of my (our) transactions in Akeena Solar common stock that occurred during the Class Period, as 21 well as the number of shares of Akeena Solar common stock held by me (us) at the close of trading 22 on June 11, I (We) understand and intend that the signature below serves as the release of the 24 Released Claims PROOF OF CLAIM AND RELEASE NO. C JW - 9 -

12 Case5:09-cv JW Document146-3 Filed08/25/11 Page12 of 13 1 SUBSTITUTE FORM 2-9 Request for Taxpayer Identification Number ( TIN ) and Certification 2 PARTI 3 4 NAME: 5 Check appropriate box: 6 q Individual/Sole Proprietor q Pension Plan q Corporation q Partnership q Trust 7 q IRA q Other 8 Enter TIN on appropriate line. 9 o For individuals, this is your Social Security Number ( SSN ). 10 o For sole proprietors, you must show your individual name, but you may also 11 enter your business or doing business as name. You may enter either your SSN or your Employer Identification Number ( EIN ). 12 o For other entities, it is your EIN. 13 _ - - or - Social Security Number Employer Identification Number PART II For Payees Exempt from Backup Withholding 17 If you are exempt from backup withholding, enter your correct TIN in Part I and write 18 exempt on the following line: PART III Certification 21 UNDER THE PENALTY OF PERJURY, I (WE) CERTIFY THAT: The number shown on this form is my correct TIN; and 2. I (We) certify that I am (we are) NOT subject to backup withholding under the provisions of Section 3406 (a)(1)(c) of the Internal Revenue Code because: (a) I am (we are) exempt from backup withholding; or (b) I (we) have not been notified by the Internal Revenue Service that I am (we are) subject to backup withholding as a result of a failure to report all interest or dividends; or (c) the Internal Revenue Service has notified me (us) that I am (we are) no longer subject to backup withholding. 27 NOTE: If you have been notified by the International Revenue Service that you are subject to backup withholding, you must cross out Item 2 above. PROOF OF CLAIM AND RELEASE NO. C JW

13 Case5:09-cv JW Document146-3 Filed08/25/11 Page13 of 13 1 SEE ENCLOSED FORM W-9 INSTRUCTIONS 2 The Internal Revenue Service does not require your consent to any provision of this document 3 other than the certification required to avoid backup withholding. 4 I declare under penalty of perjury under the laws of the United States of America that the 5 foregoing information supplied by the undersigned is true and correct. 6 Executed this day of, (Month/Year) 7 in 8 (City) (State/Country) 9 10 (Sign your name here) (Type or print your name here) 14 (Capacity of person(s) signing, e.g., 15 Beneficial Purchaser or Acquirer, 16 Executor or Administrator) 17 ACCURATE CLAIMS PROCESSING TAKES A 18 SIGNIFICANT AMOUNT OF TIME. 19 THANK YOU FOR YOUR PATIENCE. 20 Reminder Checklist: Please sign the above release and declaration Remember to attach supporting documentation, if available Do not send original stock certificates Keep a copy of your claim form for your records If you desire an acknowledgment of receipt of your claim form, please send it 26 Certified Mail, Return Receipt Requested If you move, please send us your new address. PROOF OF CLAIM AND RELEASE NO. C JW