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The Hearing date has been changed to April 26, 2010. This does not change any other
deadlines previously published in any documents.
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Welcome to the Quest Software Class Action Settlement website.
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IMPORTANT DATES & DEADLINES
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File a Proof of Claim:
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Postmarked not later than May 14, 2010
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Request an Exclusion:
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Postmarked on or before February 15, 2010
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File an Objection:
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Received on or before February 15, 2010
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Settlement Fairness Hearing:
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April 26, 2010 at 8:30 a.m. in the United States
District Court for the Central District of California,
Southern Division
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The court approved the settlement, plan of allocation, and the applications at the
hearing on 4/26.
The following is a summary of information presented in more detail in the Notice
of Pendency and Proposed Settlement of Class Action and Settlement Hearing ("Notice"),
which Class Members should have received in the mail, and which you can access by
clicking on the box with that name to the left. Since this is just a summary, you
should see the full Notice for additional details.
Please read this information carefully. If you are a Class Member (as defined below),
your rights will be affected by these proceedings and you may be entitled to receive
benefits under a proposed $29,400,000.00 class action settlement.
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ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED QUEST SOFTWARE, INC.
(“QUEST”) COMMON STOCK ON THE OPEN MARKET DURING THE PERIOD BETWEEN NOVEMBER 9,
2001 AND JULY 3, 2006 INCLUSIVE, (“CLASS PERIOD”) AND WHO WERE DAMAGED THEREBY (the
“CLASS”).
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Securities Brokers and other Nominees: Please see instructions on page 12 of the
Notice.
Settlement Fairness Hearing
The Court will hold a Settlement Hearing at 8:30 a.m. on April 26, 2010 before the
Honorable David O. Carter at the United States District Court for the Central District
of California, Southern Division located at 411 West Fourth Street, Santa Ana, CA
92701 in Courtroom 9D, to determine:
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(a)
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Whether the Settlement should be approved by the Court as fair, reasonable, adequate
and in the best interests of the class;
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(b)
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Whether the Plan of Allocation for the proceeds of the Settlement should be approved
by the Court as fair and reasonable;
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(c)
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Rule on Plaintiff’s Counsel’s application for an award of attorney’s fees and the
reimbursement of litigation expenses;
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(d)
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Rule on Lead Plaintiff’s application of reasonable costs and expenses (including
lost wages) pursuant to 15 U.S.C. § 78u-4(a)(4);
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(e)
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Determine whether the Final Order and Judgement should be entered pursuant to the
Stipulation, among other things, dismissing the Action against Defendants with prejudice
and releasing all Settled Claims (as defined in the Stipulation); and
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(f)
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Rule on such other matters as the Court may deem appropriate.
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What is this case about?
The Action was commenced on October 27, 2006 as a class action alleging that Defendants
violated the Securities Exchange Act of 1934 (the “Exchange Act”) by making materially
false and misleading statements and omissions regarding Quest’s financial condition
during the period from November 9, 2001 through July 3, 2006, inclusive. Specifically,
Middlesex alleges in this Action that during the Class Period, Defendants did not
properly account for stock option grants that had been issued at prices which were
below fair market value on the actual date that the grant was approved, which caused,
among other things, Quest’s financial statements to be materially false and misleading
in that they failed to accurately reflect Quest’s compensation expenses, resulting
in Quest’s operating and net income to be overstated. Defendants deny all of Middlesex’s
allegations and claims.
Terms of the Settlement
In exchange for the settlement and dismissal of the Action, Defendants paid the
Settlement Amount of twenty nine million four hundred thousand dollars ($29,400,000.00).
The Settlement Fund (less certain Court authorized expenses) is being invested in
short term United States Government or United States Agency or Treasury Securities
(or a mutual fund invested solely in such instruments), and that interest is being
accrued and reinvested for the benefit of the Class. The Settlement Fund will be
distributed proportionally to eligible Class Members who send in valid Proof of
Claim forms, after payment of Plaintiff’s Counsel’s legal fees and expenses, any
award to Lead Plaintiff for its time, expense and effort in representing the Class,
any taxes due on the interest earned by the Settlement Fund, and the expenses and
the costs of claims administration, as approved by the Court. The costs of providing
Notice, including the printing and mailing of the Notice and the cost of publishing
the Notice, were not paid from the Settlement Fund, rather these expenses were paid
directly by Quest, thus providing an additional benefit to the members of the Class
by not reducing the Settlement Fund by the amount of such expenses.
Your share of the monies available for distribution will depend on the number of
shares of Quest common stock represented by valid Proof of Claim forms that Class
Members send in and the dollar amount of those claims, how many shares of Quest
common stock you purchased, and when you bought and sold them. A claim will be calculated
as follows: The Settlement Fund, less attorneys’ fees and litigation expenses, any
award to Lead Plaintiff for its costs and expenses (including lost wages) in representing
the Class (such payment is expected to be no more than $25,000), taxes and administration
costs (the “Net Settlement Fund”) will be distributed to Class Members who submit
valid, timely Proof of Claim forms (“Authorized Claimants”) under the Plan of Allocation
(the “Plan”) described below.
Each Authorized Claimant will receive an amount equal to the percentage of the Net
Settlement Fund that each Authorized Claimant’s Recognized Loss, as defined below,
bears to the total of the Recognized losses of all Claimants. Payment in this manner
shall be deemed conclusive against all Authorized Claimants. The Plan of Allocation
has been prepared by Plaintiff’s Counsel with the assistance of a damages expert.
Defendants do not agree with the characterization that any damages were suffered
by Lead Plaintiff or the Class.
The Rights of the Class Members
If you are a Class Member, you have the following options:
FILE A PROOF OF CLAIM – To qualify for a payment, you must send in
a Proof of Claim form. A Proof of Claim form is enclosed with the Notice. You may
also get a Proof of Claim form from the Claims Administrator at: Quest Software,
Inc. Class Action Settlement, c/o Rust Consulting, Inc. (“Claims Administrator”),
P.O. Box 2259, Faribault, MN 55021-2379, or from the Proof of Claim and Release
button on the left of this page or go to
www.wolfpopper.com. Read the instructions carefully, fill out the form,
include all the documents the form asks for, sign it, and mail it to the Claims
Administrator at the above address postmarked no later than May 14, 2010.
EXCLUDE YOURSELF FROM THE CLASS – You can exclude yourself from the
Class and the Settlement. If you do not want a payment from the Settlement, but
you want to keep any right to sue Quest, or any of the Defendants or any of the
Related Parties, about the claims you would otherwise be releasing in this Settlement,
then you must take steps to exclude yourself from the Settlement. This is called
excluding yourself or is sometimes referred to as “opting out” of the Class. To
exclude yourself, you must send a letter by mail saying that you want to be excluded
from the Middlesex Retirement System v. Quest Software, Inc. Action.
Your request to be excluded must be signed and must state: (a) your name, address,
telephone number, fax number (if available), and email address (if available); (b)
your purchases and sales of Quest common stock made during the Class Period, including
the dates, the number of shares of Quest common stock purchased and sold, the price(s)
paid or received per share of Quest common stock for each such purchase or sale,
and whether you continue to hold such Quest common stock; (c) the amount or number
of shares of Quest common stock held as of the beginning of the Class Period on
November 9, 2001 and whether you continue to hold such common stock; and (d) that
you wish to be excluded from the Class. You must mail your exclusion request postmarked
on or before February 15, 2010 to:
Quest Software Class Action Settlement
c/o Rust Consulting, Inc.
P.O. Box 2259
Faribault, MN 55021-2379
You cannot exclude yourself on the phone or by email. If you ask to be excluded,
you will not get any settlement payment, and you cannot object to the Settlement.
Also, you will not be legally bound by anything that happens in this lawsuit, and
you would not be prevented by this Settlement from suing Defendants and their Related
Parties for the Settled Claims in the future. However, if you exclude yourself and
bring your own lawsuit, you would be subject to all the risks of litigation, including
the risk that your lawsuit would be rejected because you filed it too late. If you
do not file your request for exclusion on time, you will be legally bound by all
the proceedings in this Action, including all court orders and judgments in the
Action, even if you have a lawsuit pending against the Released Parties that covers
Settled Claims, or if you subsequently start a lawsuit or an arbitration or any
other proceeding against any of the Released Parties that are covered by the Settled
Claims.
OBJECT – If you are a Class Member (and you have not excluded yourself)
and you want to object to the Settlement or any of its terms, the proposed Plan
of Allocation, the application by Plaintiff’s Counsel for an award of fees and the
reimbursement of expenses, and/or the request for an award to the Lead Plaintiff
under the Private Securities Litigation Reform Act, the Court will consider your
views if you file a proper objection within the deadline below, and according to
the following procedures. To object, you must send a signed letter saying that you
object to the proposed Settlement in “Middlesex Retirement System v. Quest Software,
Inc., Case No. CV 06-6863-DOC (RNBx) (United States District Court for the Central
District of California).” Your letter must include your name, address, telephone
number, fax number (if available) and email address (if available) and your original
signature (no copies). You must also include: (a) a written statement of your objections;
(b) the grounds or the reasons for why you object or desire to appear and be heard,
as well as copies of all documents or any writings that you wish the Court to consider;
(c) whether you intend to present any witnesses and, if so, the identity of such
witnesses; and (d) information about your purchases and sales of Quest common stock
made during the Class Period, including the dates, number of shares, the price(s)
paid or received per share, and whether you continue to hold such Quest common stock.
If you object to the Settlement, Plan of Allocation, or any fee or expense application
relating to the Settlement, you may be subject to a deposition prior to the Settlement
Hearing.
You must mail such objection, on or before February 15, 2010, to: Clerk of
the Court, United States District Court for the Central District of California,
Southern Division, 411 West Fourth Street, Room 1053, Santa Ana, CA 92701 4516.
You must also send a copy of what you send to the Court to the following attorneys
on or before February 15,2010:
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Wolf Popper LLP
845 Third Avenue, 12th Floor
New York, NY 10022
Email: IRRep@wolfpopper.com
Plaintiff’s Counsel
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Hulett Harper Stewart LLP
525 B Street, Suite 760
San Diego, CA 92101
Email: office@hulettharper.com
Plaintiff’s Counsel
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Cooley Godward Kronish LLP
4401 Eastgate Mall
San Diego, CA 92121
QuestClassAction@cooley.com
Counsel for Quest Software, Inc.
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You may object either on your own or through an attorney that you hire at your own
expense. If you do hire an attorney to represent you, your attorney must file a
Notice of Appearance with the Clerk of the Court and deliver a copy of that notice
to the above counsel on or before February 15, 2010.
You do not need to go to the Settlement Hearing to have your written objection considered
by the Court. At the Settlement Hearing, any Class Member who (1) has not previously
submitted a request for exclusion from the Class and (2) has complied with the procedures
set out for filing with the Court, and provided to the counsel for Lead Plaintiff
and Defendants a statement of an intention to appear at the Settlement Hearing may
also appear and be heard, to the extent allowed by the Court, to state any objection
to the Settlement, the Plan of Allocation, Plaintiff’s Counsel’s motion for an award
of attorneys’ fees and reimbursement of expenses, and/or the proposed award to the
Lead Plaintiff. Any such objector may appear in person or arrange, at that objector’s
expense, for a lawyer to represent the objector at the Settlement Hearing.
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If you do not follow the directions in the Notice for objecting to the Settlement,
you will forfeit all rights that you may have to object to and/or appeal this Settlement
unless the Court orders otherwise. You will be bound by the orders and judgments
in this lawsuit
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Further Information
Further information regarding the Litigation, the Notice and how to file your claim
may be obtained by contacting the Claims Administrator or reading through the Notice
and Proof of Claim links at the left. You may also contact Plaintiff’s Counsel at
the address listed above.
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