In Re: Pixar Securities Litigation 05-CV-4290-Declaration of Cheryl
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1 BORIS FELDMAN, State Bar No . 128838 ([email protected]) DOUGLAS J. CLARK, State Bar No . 171499 ([email protected]) 2 CHERYL W. FOUNG, State Bar No . 108868 ([email protected]) KELLEY E . MOOHR, State Bar No. 216823 ([email protected]) 3 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 4 650 Page Mill Road Palo Alto, CA 94304-1050 5 Telephone : (650) 493-9300 Facsimile: (650) 565-5100 6 7 Attorneys for Defendants PIXAR, STEVEN P. JOBS, EDWIN E. 8 CATMULL and SIMON T . BAX 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNI A 12 13 In re PIXAR SECURITIES LITIGATION CIVIL ACTION NO. : C 05 4290 JSW 14 CLASS ACTION 15 DECLARATION OF CHERYL W . FOUNG IN SUPPORT OF 16 DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT 17 This Document Relates To All Actions . 18 Date : September 15, 2006 Time: 9:00 a.m. 19 Dept: The Hon. Jeffrey S. White 20 21 22 23 24 25 26 27 28 FOUNG DECL. ISO DEFENDANTS' MOTION To C :\NrPortbl\PALIB 1\BH4\2900085_2 .DOC DISMISS AMENDED COMPLAIN T CASE No. C 05 4290 JSW 1 I, Cheryl W . Foung, declare as follows : 2 I am of counsel at the law firm of Wilson Sonsini Goodrich & Rosati, and am counsel for 3 defendants Pixar, Steven P . Jobs, Edwin E . Catmull and Simon T. Bax (collectively 4 "defendants") . I am licensed to practice law before the Courts of the State of California and this 5 Court. I have personal knowledge of the facts set forth herein and, if called as a witness, I coul d 6 and would testify competently hereto . 7 8 PUBLIC FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION 9 1 . Attached hereto as Exhibit 1 is a true and correct copy of excerpts from Pixar's 10 Form 10-K for the fiscal year ended January 3, 2004, filed with the SEC on March 18, 2004 . 11 2 . Attached hereto as Exhibit 2 is a true and correct copy of excerpts from Pixar's 12 Form 10-K for the fiscal year ended January 1, 2005, filed with the SEC on March 17, 2005 . 13 3 . Attached hereto as Exhibit 3 is a true and correct copy of excerpts from Pixar' s 14 I Proxy Statement dated July 11, 2005 . 15 4. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from Pixar' s 16 Form 8-K filed with the SEC on January 24, 2006 . 17 5 . Attached hereto as Exhibit 5 is a true and correct copy of excerpts from Pixar's 18 Form 10-K for the fiscal year ended December 31, 2005, filed with the SEC on March 7, 2006 . 19 6. Attached hereto as Exhibit 6 is a true and correct copy of Edwin E . Catmull's 20 Form 4 filed with the SEC on August 17, 2004 . 21 7 . Attached hereto as Exhibit 7 is a true and correct copy of Edwin E . Catmull' s 22 Form 4 filed with the SEC on November 18, 2004 . 23 8. Attached hereto as Exhibit 8 is a true and correct copy of Edwin E. Catmull' s 24 Form 4 filed with the SEC on February 18, 2005 . 25 9. Attached hereto as Exhibit 9 is a true and correct copy of Edwin E . Catmull's 26 Form 4 filed with the SEC on March 7, 2005 . 27 10. Attached hereto as Exhibit 10 is a true and correct copy of Edwin E. Catmull' s 28 11 Form 4 filed with the SEC on May 20, 2005 . FOUND DECL . ISO DEFENDANTS' MOTION To -1- C:\NrPortbl\PALIB I \BH4\2900085_2 . DOC DISMISS AMENDED COMPLAIN T CASE No . C 05 4290 JSW 1 11 . Attached hereto as Exhibit 11 is a true and correct copy of Simon T . Bax' s 2 Form 4 filed with the SEC on May 3, 2004 . 3 12. Attached hereto as Exhibit 12 is a true and correct copy of Simon T . Bax's 4 Form 4 filed with the SEC on May 12, 2005 . 5 6 CONFERENCE CALL TRANSCRIPT S 7 13 . Attached hereto as Exhibit 13 is a true and correct copy of the transcript fro m 8 Pixar's Conference Call held on February 10, 2005 . 9 14. Attached hereto as Exhibit 14 is a true and correct copy of the transcript fro m 10 Pixar's Conference Call held on May 5, 2005 . 11 15. Attached hereto as Exhibit 15 is a true and correct copy of the transcript from 12 Pixar's Conference Call held on August 4, 2005 . 13 14 SLIP OPINIONS 15 16 . Attached hereto as Exhibit 16 is a true and correct copy of the decision in In re 16 Applied Signal Tech . Inc. Sec. Litig., No. C-5-1027 SBA, slip op. (N.D . Cal. Feb. 8 , 2006) . 17 17 . Attached hereto as Exhibit 17 is a true and correct copy of the decision in In re 18 Autodesk, Inc. Sec. Litig., No. C-00-1285-PJH, slip op . (N.D. Cal . Nov. 21, 2001). 19 18 . Attached hereto as Exhibit 18 is a true and correct copy of the decision in 20 Kuehbeck v. Genesis Microchip Inc ., No. C 02-5344 JSW, slip op . (N.D. Cal. Mar. 29, 2004). 21 19 . Attached hereto as Exhibit 19 is a true and correct copy of the decision in In re 22 Tibco Software, Inc. Sec. Litig., No. C 05-2146 SBA, slip op . (N.D. Cal. May 25, 2006). 23 20. Attached hereto as Exhibit 20 is a true and correct copy of the decision in In re 24 Vaxgen, Inc. Sec. Litig., No . C 03-01129 JSW, slip op . (N.D . Cal. Mar. 30, 2005). 25 21 . Attached hereto as Exhibit 21 is a true and correct copy of the decision in In re 26 Veritas Software Corp. Sec. Litig., No. C-03-0283 MMC, slip op . (N.D . Cal. Dec. 10, 2003). 27 28 FOUNG DECL . ISO DEFENDANTS' MOTION To -2- C :\NrPortbl\PALIBI\BH4\29000852 .DOC DISMISS AMENDED COMPLAIN T CASE No . C 05 4290 JSW 1 MISCELLANEOUS 2 22 . Attached hereto as Exhibit 22 is a true and correct copy of excerpts from H .R. 3 CONF. REP. No. 104-369 (1995 ), reprinted in 1995 U.S.C.C.A.N. 730. 4 23. Attached hereto as Exhibit 23 is a true and correct copy of Pixar's daily stock 5 price from February 10, 2005 to May 4, 2006 . 6 I declare under penalty of perjury under the laws of the State of Califo rnia that the 7 foregoing is true and correct . Executed this 29th day of June 2006 at Palo Alto, California. 8 9 By: /s/ CHERYL W . FOUNG CHERYL W. FOUNG 10 11 I, Boris Feldman , am the ECF User whose identification and password are being used to 12 file this Declaration of Cheryl W. Foung in Support of Defendants' Motion to Dismiss Amended 13 Complaint. I hereby attest that Cheryl W. Foung has concurred in this filing . 14 Dated: June 29, 2006 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 15 16 By: /s/ BORIS FELDMAN BORIS FELDMAN 17 Attorneys for Defendant s 18 Pixar, Steven P . Jobs, Edwin E . Catmull and Simon T. Bax 19 20 21 22 23 24 25 26 27 28 FOUNG DECL . ISO DEFENDANTS' MOTION To _3_ C:\NrPortbl\PALIBI\BH4\29000852 .DOC DISMISS AMENDED COMPLAIN T CASE No. C 05 4290 JSW EXHIBIT 1 Table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended January 3, 2004 Commission File Number 0-26976 Pixar (Exact name of registrant as specified in its charter) California 68-0086179 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No) 1200 Park Avenue, 94608 Emeryvi lle , California (Zip Code) (Address of principal executive offices) Registrant's telephone number, including area code : (510) 752-3000 Securities registered pursuant to Section 12(b) of the Act : Non e Securities registered pursuant to Section 12(g) of the Act: Common Stock , no par value per share (Title of Class) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Act") during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days . Yes 0 No ❑ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. Rl Indicate by check mark whether the Registrant is an accelerated filer (as defined in Rule 12b-2 of the Act) . Yes 0 No ❑ As of June 28, 2003, the last day of the Registrant's most recently completed second fiscal quarter, there were 54,135,552 shares of the Registrant's Common Stock outstanding, and the aggregate market value of such shares held by non-affiliates of the Registrant (based on the closing sale price of such shares on the Nasdaq National Market on June 27, 2003) was $1,377,878,000 . Shares of the Registrant's Common Stock held by each executive officer and director have been excluded in that such persons may be deemed to be affiliates .