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In Re Portal Software, Inc. Securities Litigation 03-CV-5138

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In Re Portal Software, Inc. Securities Litigation 03-CV-5138 Case 3:03-cv-05138-VRW Document 148 Filed 03/08/2006 Page 1 of 3 1 BORIS FELDMAN, State Bar No. 128838 NINA F. LOCKER, State Bar No. 123838 2 PERI NIELSEN, State Bar No. 196781 RANDOLPH GAW, State Bar No. 223718 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 Email: Boris.Feldman@wsgr.com; nlocker@wsgr.com; pnielsen@wsgr.com; khodges@wsgr.com; 7 rgaw@wsgr.com 8 Attorneys for Defendants PORTAL SOFTWARE, INC., JOHN E. LITTLE, HOWARD A. BAIN, III 9 and ARTHUR C. PATTERSON 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 In re PORTAL SOFTWARE, INC. ) CASE NO.: C-03-5138 VRW SECURITIES LITIGATION ) 15 _______________________________________ ) SUPPLEMENTAL DECLARATION ) OF RANDLOPH GAW IN SUPPORT 16 This Document Relates To: ) OF DEFENDANTS’ MOTION TO ) DISMISS PLAINTIFFS’ FOURTH 17 ALL ACTIONS. ) CONSOLIDATED AMENDED ) COMPLAINT 18 ) ) Date: March 23, 2006 19 ) Time: 2:00 p.m. ) Dept: Courtroom 6 20 ) ) Before: Hon. Vaughn R. Walker 21 ) ) 22 ) ) 23 24 25 26 27 28 SUPP. DECL OF GAW ISO C:\NrPortbl\PALIB1\TB5\2831069_1.DOC DEFS. MTN TO DISMISS FCAC C-03-5138 VRW Case 3:03-cv-05138-VRW Document 148 Filed 03/08/2006 Page 2 of 3 1 I, Randolph Gaw, declare as follows: 2 1. I am an attorney duly licensed to practice law before this Court, and am associated 3 with the law firm of Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel of 4 record for Defendants Portal Software, Inc. (“Portal”), John E. Little, Howard A. Bain, III, and 5 Arthur C. Patterson (collectively “Defendants”). I have personal knowledge of the facts set forth 6 in this declaration and can testify competently to those facts. I submit this supplemental 7 declaration in further support of Defendants’ Motion to Dismiss Plaintiffs’ Fourth Consolidated 8 Amended Complaint. The Court may take judicial notice of the documents attached hereto for 9 the reasons set forth in Defendants’ Request for Judicial Notice, filed June 2, 2005. 10 2. Attached hereto as Exhibit 1 is Portal’s Form 8-K filed with the Securities and 11 Exchange Commission on January 13, 2006. 12 3. Attached hereto as Exhibit 2 is Portal’s Form 8-KA filed with the Securities and 13 Exchange Commission on December 30, 2005 14 4. Attached hereto as Exhibit 3 is a true and correct copy of Portal’s press release dated 15 June 23, 2005. 16 5. Attached hereto as Exhibit 4 is a true and correct copy of Portal’s press release dated 17 February 3, 2005. 18 6. Attached hereto as Exhibit 5 is a true and correct copy of Portal’s press release dated 19 September 12, 2003. 20 7. Attached hereto as Exhibit 6 is a true and correct copy of the July 7, 2005 hearing 21 transcript in this matter. 22 8. Attached hereto as Exhibit 7 is a true and correct copy of the order in In re Applied Signal 23 Technology, Inc. Sec. Litig., No. C 05-1027 (N.D. Cal. Feb. 6, 2006). 24 I declare under penalty of perjury under the laws of the State of California that the 25 foregoing is true and correct. Executed in Palo Alto, California on March 8, 2006. 26 27 /s/ Randolph Gaw Randolph Gaw 28 SUPP. DECL OF GAW ISO -1- C:\NrPortbl\PALIB1\TB5\2831069_1.DOC DEFS. MTN TO DISMISS FCAC C-03-5138 VRW Case 3:03-cv-05138-VRW Document 148 Filed 03/08/2006 Page 3 of 3 1 I, Peri Nielsen, am the ECF User whose identification and password are being used to file this Declaration of Randolph Gaw In Support of Defendants’ Motion to Dismiss the Second 2 Consolidated Amended Complaint. In compliance with General Order 45.X.B, I hereby attest that Randolph Gaw has concurred in this filing. 3 4 Dated: March 8, 2006 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 5 6 By: /s/ Peri Nielsen 7 Peri Nielsen 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPP. DECL OF GAW ISO -2- C:\NrPortbl\PALIB1\TB5\2831069_1.DOC DEFS. MTN TO DISMISS FCAC C-03-5138 VRW Exhibit 1 10kW I ZAR D FORM 8-K PORTAL SOFTWARE INC - PRSF .PK Filed : January 13, 2006 (period : January 09, 2006) Report of unscheduled material events or corporate changes . Item 1 .01 Entry Into a Material Definitive Agreemen t Item 9.01 Financial Statements and Exhibits . EX-99 .1 (Exhibits not specifically designated by another number and by investment companies) SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 193 4 Date of Report (Date of earliest event reported) : January 9, 200 6 PORTAL SOFTWARE, INC . (Exact name of Registrant as specified in its charter) Delaware 000-25829 77-0369737 (State or other jurisdiction of (Commission File Number) (I .R.S. Employe r incorporation or organization) Identification Number) 10200 South De Anza Boulevard Cupertino, CA 9501 4 (Address, including zip code, of principal executive offices) (408) 572-200 0 (Registrant's telephone number, including area code) Check the appropriate box below if the Form 8 -K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A .2 . below) : ❑ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230 .425) ❑ Soliciting material pursuant to Rule I4a- 12 under the Exchange Act (17 CFR 240.14a-12 ) ❑ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240 .14d-2(b)) ❑ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1 .01 Entry Into a Material Definitive Agreemen t On January 9, 2006, the Board of Directors (the "Board") of Portal Software, Inc . (the "Registrant") approved a revised Board member compensation plan . Under the revised plan, the Lead Director's (Chairman of the Board's) annual retainer is $50,000 and each Board member annual retainer is $25,000 . In addition, the Audit Committee chair's annual retainer is $8,000, and the annual retainer for the chair of any other committee is $6,000 . The annual retainer for any committee member is $4,000 . Board members receive $2,000 for each Board meeting, whether in person or attending telephonically. If a Board meeting exceeds six (6) hours, the participating members will be paid an additional $2,000 . Board members receive $1,000 per committee meeting, whether the meeting is in person or by teleconference, and an additional $1,000 will be paid for committee meetings that exceed 2 .5 hours . A non-employee Board member will receive an initial option grant of 16,000 shares upon appointment . In addition, upon the date of each Annual Stockholders Meeting, non-employee Board members will continue to receive an annual option grant of 2,400 shares . The Registrant received from John Little, the letter attached hereto as Exhibit 99 .1, dated January 12, 2006 Item 9 .01 Financial Statements and Exhibits . (c) Exhibit s 99 .1 Letter from John Little dated January 12, 2006 . Pursuant to the requirements of the Securities Exchange Act of 1934 , the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized . PORTAL SOFTWARE, INC . Dated : January 13, 2006 By : /s/ Larry Bercovic h Larry Bercovic h SVP, General Counsel & Secretary EXHIBIT INDEX Exhibit Number Description 99 .1 Letter from John Little dated January 12, 2006 . Exhibit 99.1 Letter Aereemen t January 12, 200 6 Dear Mr . Bercovich, As previously discussed and until further notice, I hereby disclaim my compensation for service on the Portal board as specified by the plan adopted by the board at the January 9, 2006 board meeting . More specifically, I disclaim 100 percent of the annual retainer, the per meeting fees, and the annual stock option grant . Please make this effective as of the Jan 9`h board meeting . Sincerely, /s/ John Littl e John Little Board Membe r Created by IOKWizard www.IOKWizard .com Exhibit 2 !O WIZAR D S t C 4 p W 4 N 5 C A p t„ FORM 8-K/A PORTAL SOFTWARE INC - PRSF .PK Filed : December 23, 2005 (period : November 21, 2005) Amendment to a previously filed 8-K Item 2 .02 Results of Operations and Financial Condition Item 4 .02 Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Compl e Item 9 .01 Financial Statements and Exhibits . EX-99 .1 (Exhibits not specifically designated by another number and by investment companies) SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K/A CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 193 4 Date of Report (Date of earliest event reported) : November 21, 200 5 PORTAL SOFTWARE, INC . (Exact name of Registrant as specified in its charter) Delaware 000-25829 77-0369737 (State or other jurisdiction of (Commission File Number) (I.R .S . Employer incorporation or organization) Identification Number) 10200 South De Anza Boulevard Cupertino, CA 9501 4 (Address, including zip code , of p ri ncipal executive offices) (408) 572-200 0 (Registrant 's telephone number, including area code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A .2 .
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