Conditional Certification of the Class. For the sole purpose of settlement, the Parties and their counsel agree to move for conditional certification of the Class. Conditional certification of the Class shall not be deemed a concession that certification of any litigation class is proper, and it will not preclude MOE from challenging class certification in the event the Court does not approve the Settlement. No agreements made or entered into by MOE in connection with this Settlement may be used by Plaintiffs, any person in the Class, or any other person to establish any liability or any element of class certification in this Action or any other proceedings.
Conditional Certification of the Class. 10 4. For purposes of settlement only, and pursuant to Fed. R. Civ. P. 23(a) and (b)(3), 11 this Action is conditionally certified as a class action on behalf of the following persons (the
Conditional Certification of the Class. For the purposes of this Settlement and the proceedings contemplated herein only, the Parties stipulate and agree that the Class shall be conditionally certified in accordance with the definition contained in Section 1.7, that Plaintiffs shall be conditionally appointed Class Representatives for the Class, and that Plaintiff’s’ Counsel shall be conditionally appointed as counsel for the Class.
Conditional Certification of the Class. 9 4. For purposes of settlement only, and pursuant to Fed. R. Civ. P. 23(a) and (b)(3), 10 this Action is conditionally certified as a class action on behalf of the following persons (the 11 “Settlement Class” or the “Class”): 12 All persons or entities who purchased or otherwise acquired the common stock 13 of KaloBios between November 19, 2015 and December 16, 2015, both dates 14 inclusive, seeking to recover damages caused by the Settling Defendant’s alleged violations of the federal securities laws. Excluded from the Settlement 15 Class are Settling Defendant; his immediate family members, his successors and assigns, and his insurers (the “Released Parties”); XxxxXxxx and its successors, 16 assigns, officers, directors, subsidiaries, affiliates, and employees during the Settlement Class Period, including, but not limited to, Xxx X. Xxxx, Xxxxxx 17 Xxxxxxx, Xxxxxx Xxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. 18 Xxxxx, Xxxxxxx Xxxxxxx, Xxx Xxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxx, Xxxxxxxx 19 Xxxxxxxx, Xxxxxx Xxx, Xxxxx Xxx, Xxx Xxxxx, Xxx Xxxx, and Xxxxxxx Xxxxx xxx Xxxx; former Defendants Xxxxxxx and Xxxxx and their immediate family 20 members; Xxxxxxx’x affiliates and the other members of his investor group who acquired roughly 70% of XxxxXxxx xxxxx as announced by XxxxXxxx: Xxxxx 21 Xxxxxx (“Xxxxxx”), Anthion Partners II LLC, Xxxxx Xxxxxxx (“Xxxxxxx”); and 22 those individuals who otherwise acquired KaloBios stock and/or were appointed as KaloBios officers and directors in conjunction with Xxxxxxx’x takeover of the 23 company, including Moradi, Xxxxxxx, Xxxx Xxxxx, Xxx Xxxxxxxxx, and Xxxxxxx Xxxxxxxx
Conditional Certification of the Class. 18 Defendant hereby consents, solely for purposes of the settlement set forth in this Agreement, 19 to the conditional certification of the Class, to the conditional appointment of Class Counsel, and to 20 the conditional approval of the Class Representatives; provided, however, that if the settlement fails 21 to be approved or otherwise fails to be consummated for any reason whatsoever, including but not 22 limited to the Judgment not becoming final, then Defendant retains all rights and defenses 23 previously available to it, and any provisional certification of any class, or the adoption of any 24 procedure or any ruling made pursuant to the terms contained herein, shall be undone and the Parties 25 restored to their pre-settlement status as if no settlement had been reached and no decisions were 26 made pursuant to it, except as otherwise expressly provided herein. In that event, nothing in this 27 Agreement or other papers or proceedings related to the settlement shall be used as evidence or 28 argument by any party, including any Class Members who opt out, concerning whether or not the 1 Action may properly be maintained as a class action pursuant to California state law.
