ONTARIO SUPERIOR COURT OF JUSTICE "HI! NEIGHBOR" FLOOR COVERING CO. LIMITED. and

Transcription

1 '\.. Court File No.: CV ONTARIO SUPERIOR COURT OF JUSTICE THE HONOURABLE MADAM ) ~... DAY, THEqr-DAY JUSTICE LEITCH ) OF 'V.)sa...'-.,.,2015 BETWEEN: "HI! NEIGHBOR" FLOOR COVERING CO. LIMITED and Plaintiff VINCENZO BONADDIO, MICHAEL CALDERONI, DOUGLAS DOLPHIN, ANTHONY DACOSTA, and DONALD PHILLIPS Defendants Proceeding under the Class Proceedings Act, 1992 ORDER Settlement Approval (Individual's Settlement Agreement) THIS MOTION made by the Ontario Plaintiff for an order approving the settlement agreement which forms part ofthis Order, was heard on the 29 th day of October 2015, at the Court House, 80 Dundas Street, London, Ontario;

2 2 ON READING the materials filed, including the Settlement Agreement, attached to this Order as Schedule "A" (the "Settlement Agreement"); AND WHEREAS the deadline for opting out ofthe Ontario Proceeding has passed, and no member ofthe Ontario Settlement Class has validly opted out; AND ON HEARING the submissions ofcounsel for the Ontario Plaintiff, the Settling Defendants and counsel for the Non-Settling Defendants in the Ontario Proceeding; AND ON BEING ADVISED that the Ontario Plaintiff and the Settling Defendants consent to this Order; 1. THIS COURT ORDERS that except to the extent they are modified by this Order, the definitions set out in the Settlement Agreement attached as Schedule "A" apply to and are incorporated into this Order. 2. THIS COURT ORDERS that the Settlement Agreement is fair, reasonable and in the best interests ofthe Ontario Settlement Class in the Ontario Proceeding. 3. THIS COURT ORDERS that the Settlement Agreement is approved pursuant to s. 29 ofthe Class Proceedings Act, 1992, S , c. 6, as amended, and shall be implemented in accordance with its terms.

3 as I tt 3 4. THIS COURT ORDERS that the Settlement Agreement is incorporated by reference into and forms part ofthis Order. 5. THIS COURT ORDERS that this Order, including the Settlement Agreement, is binding upon the representative plaintiff and each and every member of the Ontario Settlement Class in the Ontario Proceeding, including those Persons who are minors or mentally incapable, and the requirements ofrules 7.04(1) and 7.08(4) ofthe Ontario Rules ofcivil Procedure are dispensed with in respect ofthe Ontario Proceedings. 6. THIS COURT ORDERS that, upon the Effective Date, each member of the Ontario Settlement Class in the Ontario Proceeding shall consent and shall be deemed to have consented to the dismissal as against the Releasees ofany Other Actions he, she or it has commenced, without costs and with prejudice. 7. THIS COURT ORDERS that, upon the Effective Date, any Other Action commenced in Ontario by any member ofthe Ontario Settlement Class shall be and is hereby dismissed against the Releasees, without costs and with prejudice. 8. THIS COURT ORDERS that instead ofreleasing the claims against the Releasees, upon the Effective Date, in accordance with Section 5.3 ofthe Settlement Agreement, each Releasor resident in any province or territory where the release of one tortfeasor is a release ofall tortfeasors covenants not to sue and undertakes not to make

4 4 any claim in any way nor to threaten, commence, or continue any proceeding in any jurisdiction against the Releasees in respect ofor in relation to the Released Claims, except for the continuation ofthe Ontario Proceeding and the Related Proceedings against the Non-Settling Defendants or named or unnamed co-conspirators who are not Releasees. The use ofthe terms "Releasors", "Releasees" and "Released Claims" in this Order is a matter ofform only for consistency with the Settlement Agreement. 9. THIS COURT ORDERS that each Releasor shall not now or hereafter institute, continue, maintain or assert, either directly or indirectly, whether in Canada or elsewhere, on their own behalfor on behalfofany class or any other Person, any action, suit, cause ofaction, claim or demand against any Releasee or any other Person who may claim contribution or indemnity, or other claims over for relief, from any Releasee in respect ofany Released Claim or any matter related thereto, except for the continuation ofthe Ontario Proceeding and the Related Proceedings against the Non Settling Defendants or named or unnamed co-conspirators who are not Releasees. 10. THIS COURT ORDERS that all claims for contribution, indemnity or other claims over, whether asserted, unasserted or asserted in a representative capacity, inclusive ofinterest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Ontario Proceeding, or otherwise, by any Non-Settling Defendant, any named or unnamed co-conspirators who are not Releasees or any other Person or party, against a Releasee, or by a Releasee against a Non-Settling Defendant, or any named or unnamed co-conspirators who are not Releasees, are barred, prohibited and enjoined in accordance with the terms ofthis Order.

5 5 11. THIS COURT ORDERS that if, in the absence ofparagraph 10 hereof, the Court detennines that there is a right ofcontribution and indemnity or other claim over, whether in equity or in law, by statute or otherwise: (a) the Ontario Plaintiff and the members ofthe Ontario Settlement Class shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed co-conspirators who are not Releasees that portion ofany damages (including punitive damages, if any), restitutionary award, disgorgement ofprofits, interest and costs (including investigative costs claimed pursuant to s. 36 ofthe Competition Act) that corresponds to the Proportionate Liability ofthe Releasees proven at trial or otherwise; and (b) this Court shall have full authority to detennine the Proportionate Liability ofthe Releasees at the trial or other disposition ofthe Ontario Proceeding, whether or not the Releasees remain in the Ontario Proceeding or appear at the trial or other disposition, and the Proportionate Liability ofthe Releasees shall be determined as ifthe Releasees are parties to the Ontario Proceeding and any detennination by this Court in respect ofthe Proportionate Liability ofthe Releasees shall only apply in the Ontario Proceeding and shall not be binding on the Releasees in any other proceedings. 12. THIS COURT ORDERS that if, in the absence of paragraph 10 hereof, the Non-Settling Defendants would have the right to make claims for contribution and

6 6 indemnity or other claims over, whether in equity or in law, by statute or otherwise, from or against the Releasees, then nothing in this Order is intended to or shall limit, restrict or effect any arguments which the Non-Settling Defendants may make regarding the reduction ofany assessment ofdamages, restitutionary award, disgorgement of profits or judgment against them in the Ontario Proceeding. 13. THIS COURT ORDERS that a Non-Settling Defendant may, on motion to this Court on at least sixty (60) days' notice to counsel for a Settling Defendant, and not to be brought unless and until the Ontario Proceeding against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted, seek orders for discovery from a Settling Defendant as provided for and in accordance with the Ontario Rules ofcivil Procedure. 14. THIS COURT ORDERS that the Settling Defendants retain all rights to oppose such motion( s) brought under paragraph 13. To the extent that such a motion is made and results in an order granting discovery to a Non-Settling Defendant, a copy of all discovery provided, whether oral or documentary in nature, shall timely be provided by the Settling Defendant to the Ontario Plaintiff and Class Counsel to the extent and on the terms set out in the order. 15. THIS COURT ORDERS that, notwithstanding any provision in this Order, on any motion brought pursuant to paragraph 13, the Court may make such orders as to costs and other terms as it considers appropriate.

7 7 16. THIS COURT ORDERS that a Non-Settling Defendant may effect service ofthe motion(s) referred to in paragraph 13 above on a Settling Defendant by service on counsel ofrecord for that Settling Defendant in the Ontario Proceeding. 17. THIS COURT ORDERS that, for purposes of administration ofthis Order, this Court will retain an ongoing supervisory role and the Settling Defendants acknowledge the jurisdiction ofthis Court for the purpose of implementing, administering and enforcing the Settlement Agreement, and subject to the terms and conditions set out in the Settlement Agreement. 18. THIS COURT ORDERS that, except as provided herein, this Order does not affect any claims or causes ofaction that any member ofthe Ontario Settlement Class has or may have against the Non-Settling Defendants or named or unnamed coconspirators who are not Releasees in the Ontario Proceeding. 19. THIS COURT ORDERS that this Order shall be declared null and void on subsequent motion made on notice in the event that the Settlement Agreement is terminated in accordance with its terms. 20. THIS COURT ORDERS that, except as aforesaid, the Ontario Proceeding is hereby dismissed against those Releasees who are defendants in the Ontario Proceeding without costs and with prejudice.

8 8 21. THIS COURT ORDERS that nothing in this Order shall amend, vary or alter any ofthe terms ofthe orders ofthis Court dated February 11,2014 in the Related Proceedings relating to the approval ofthe settlement agreement with Valle Foam Industries (1995) Inc. (now known as Canada Ltd.), Domfoam International Inc. (now known as Canada Ltd.), A-Z Sponge & Foam Products Ltd. and other persons. JUSTICE #

9 SCHEDULE A CANADIAN POLYURlTlfANE FOAM PRODUCTS CLA.S8AC'l1ON NATIONAL SE1TLDUNT AGREEMENT Made as of j tj '0 )1..20J4 Between "HI! luughbor" FLOOR COVERING CO. LIMITED add TRU..LI1JM PROJECT MANAGEMENT LTD. (the "Pla1ntiffs") DOUGLAS DOLPIIIN ad ANTONIODA COSTA (Improperly...ed.. ADtboll)! Da Cona) (the "SettUng Defendantsj

10 CANADIAN POLYURETHAN"~ FOAM PRODUCTS CLASS ACTION NATIONAL SETTLEMENT AGREEMENT TABLE OF CONTENTS RECITALS... 1 SECTION I - DEFINITIONS...3 SECTION 2 - SETTLEMENT APPROVAL t All Reasonable Steps Motions CCltifying the Proceedings and Approving Noticc Pre-Motion Confidentiality...7 SECTION 3 - SETTLEMENT BENEFITS Cooperation...7 SECTION 4 - TERMINATION OF SETTLEMENT AGREEMENT Events of Termination If Settlement Agreement is Tenninated Survival of Provisions After Termination... I 1 SECTION 5 - RELEASES AND DISMISSALS Release of Releasccs Release by Rcleasecs..., Covenant Not To Sue No Further Claims Disluissal of the Proceedings Dismissal of the Other Actions Claims Reserved SECTION 6 - EFFECT OF SET'TLEMENT No Admission of Liability Agreement Not Evidence Restrictions On Further Litigation SECTION 7 - CERTIFICATJON FOR SETTLEMENT ONLY SECTION 8 - BAR OR.DER Bar Order Motion by Non-Settling Defendants Material Term SECTION 9 - NOTlCE TO SETTLEMENT CLASSES... t7 9.1 Notices Required... 17

11 9.2 Form and Dissemination ofnotices No Additional OptwOut Period SECTION 10 - MISCELLANEOUS... ".. 18 J0.1 Motions for Directions Headings. etc... t Computation of Tinlc Governing Law Entire Agreement Amendments Binding EfTect Counterparts Negotiated Agreement Language t Transaction...21 I0.12 Recitals Acknowledgements Authorized Signatures...22 I0.15 Notice... " Date of Execution...24

12 CANAI>IAN POLYURI<:THANE FOAM PRODUCTS CLASS ACTION NATIONAL S..:TTLEMENT AGREEMENT RECITALS A. WHEREAS the Plaintiffs have commenced the Proceedings in the Courts and allege that the Defendants, including the Settling Defendants, participated in the alleged conspiracy, and the Plaintiffs claim class-wide damages as a result ofthe alleged conspiracy; B. AND WHEREAS the Settling Defendants believe that they are not liable in respect of the alleged conspiracy, and believe they have good and reasonable defences in respect of the claims advanced in the Proceedings; C. AND WHEREAS, despite their belief that they are not liable in respect of the alleged conspiracy and that they have good and reasonable defences in respect of the claims advanced in the Proceedings, the Settling Defendants have negotiated and entered into this Settlement Agreement to avoid the further expense, inconvenience. and burden of litigating the Proceedings and any other present or future litigation arising out ofthe facts that gave rise to them, to avoid the risks inherent in uncertain. complex and protracted litigation and to achieve final resolutions ofall claims asserted or which could have been asserted against the Settling Defendants by the Plaintiffs on their own behalf and on behalf of the classes they seek to represent in relation to the alleged conspiracy; D. AND WHEREAS counsel for the Settling Defendants have engaged in extensive am} 's-length settlement discussions and negotiations with Class Counsel in respect ofthis Settlement Agreement; E. AND WHEREAS as a result of these settlement discussions and negotiations, the Settling Defendants and the Plaintiffs have entered into this Settlement Agreement, which embodies all ofthe terms and conditions of the settlement between the Settling Defendants and the PlaintifTs. both individually and on behal f ofthe classes they seek to represent, subject to the approval ofthe Courts; F. AND WHEREAS as part ofthis resolution, the Settling Defendants have agreed to cooperate with the Plaintiffs and Class Counsel as particularized in this Settlement Agreemt.'Tlt;

13 O. AND WHEREAS the Plaintitls have agreed to accept this settlement because ofthe value of the early cooperation the Settling Defendants have agreed to render or make available to the Plaintiffs and/or Class Counsel pursuant to this Settlement Agreement, as well as the attendant risks of litigation in light of the potential defences that may be asserted by the Settling Defendants; H. AND WHEREAS the Plaintiffs and Class Counsel have reviewed and fully understand the tenns of this Settlement Agreement and, based on their analyses of the facts and law applicable to the Plaintiffs' claims, and having regard to the proposed dismissal of Proceedings against the Settling Defendants, the value ofthe early cooperation to be provided by the Settling Defendants, the burdens and expense associated with prosecuting the Proceedings, including the risks and uncertainties associated with trials and appeals, the Plaintiffs and Class Counsel have concluded that this Settlement Agreement is fair, reasonable and in the best interests ofthe Plaintiff,) and the classes they seek to represent in the Proceedings; I. AND WHEREAS the Settling Defendants have each expressly warranted to the Plaintiffs that he did not directly or indirectly personally benefit financially from any alleged conspiracy, and for greater certainty, any salary, bonuses, pensions or other entitlements received by the Settling Defendants, if made in the ordinary course of employment and not directly tied to any alleged conspiracy, do not constitute dit'ect or indirect personal benefits under this Recital; J. AND WHEREAS the Plaintiffs, both individually and on behalf ofthe classes they seek to represent, intend to fully and completely settle and resolve the claims advanced in the Proceedings as against the Settling Defendants on the Effective Date pursuant to this Settlement Agreement; K. AND WHEREAS the Parties therefore wish to, and hereby do, finally resolve on a nationwide basis, without admission of liability, the Proceedings as against the Settling Defendants; L. AND WHEREAS for the purposes of settlement only and contingent on approval of the Courts as provided for in this Settlement Agreement, the Parties have consented to certification of the Proceedings as national class proceedings, and have consented to Settlement Classes and a Common Issue; M. AND WHEREAS the Plaintiffs assert that they are adequate class representatives for the Settlement Classes and will seek to be appointed representative plaintiffs in the Proceedings;

14 NOW THEREFORE, in consideration of the covenants, agreements. and releases set forth herein and for other good and valuable consideration. the receipt and sufficiency of which is hereby acknowledged, it is agreed by the Parties that the Proceedings be dismissed against the Settling Defendants with prejudice and without costs, subject to approval of the Courts on the following tenns and conditions: SECTION 1 - DEFINITIONS For the purpose of this Settlement Agreement only. including the Recitals hereto: (I) Be Omrt means the Supreme Court of British Columbia. (2) BCPla;ntiffmeans Trillium Project Management Ltd.. (3) BCPrtlc(!(!tling means the action commenced by BC Court File No (Vancouver Registry). (4) BCSettlement Class means all residents of British Columbia who purchased Polyurethane Foam Products during the Settlement Class Period, except the Excluded Persons. (5) Class Counsel means SuUs, Strosberg LLP, Camp Fiorante Matthews Mogennan and Branch MacMaster LLP. (6) Common L~ue means: Did the Settling Defendants, or either ofthem, conspire to hann the Settlement Class Members during the Settlement C lass Period? (7) Courts mean tne Ontario Court and the Be Court. (8) Defendants mean Vincenzo Bonaddio, Michael Calderoni, Douglas Dolphin, Antonio Dn Costa (improperly named as Anthony On Costa) and Donald Phillips. (9) Effec:live Date means the date on which the last of the Final Orders contemplated by this Settlement Agreement is received from the Courts. (10) Excluded Person means each Defendant and the legall'cpresentatives. heirs, successors and assigns ofeach of the foregoing.

15 4 (11 ) Final Order means a final court order, court judgment or equivalent decree certifying the Be or Ontario Proceeding as a class proceeding, approving this Settlement Agreement and implementing it in accordance with its terms, once the time to appeal has expired without any appeal being taken. if an appeal lies, or once there has been affirmarion ofthe court order, courtjudgment or equivalent decree upon a final disposition of all appeals. and for greater certainty and without limiting the foregoing, includes all court orders, court judgments or equivalent decrees required to approve and implement this Settlement Agreement. (12) Non-$ettliltg De/endallts mean Vincenzo Bonaddio, Michael Calderoni and Donald Phillips. (13) Ontario etlan means the Ontario Superior Court of Justice. (14) Olttario Plaintif/means "Hi! Neighbor" Floor Covering Co. Limited. (15) Ontario Procee(ling means the action commenced by Ontario Court.File No. CV (Windsor). (t 6) Onlari(1 Setllement Class means all persons resident in Canada who purchased Polyurethane Foam Products in Canada during the Settlement Class Period, except the members of the BC Settlement Class and the Excluded Persons. (17) Other Actions mean actions or proceedings, other than the Proceedings and/or the Related Proceedings, relating to Released Claims commenced by asettlement Class Member either before or after the Effective Date. (18) Parties mean the Plaintiffs, Settlement Class Members and the Settling Defendants. (19) Plaintiffs mean the Ontario Plaintiff and the Be Plaintiff. (20) Polyurethane Foam Products mean polyurethane foam and any and all products that contain polyurethane foam including carpet underlay. (21) Pmceedings mean the Ontario Proceeding and the BC Proceeding. (22) Proportionate Liability means the proportion ofany judgment that, had they not settled, the Be or Ontario Court would have apportioned to the Settling Defendants.

16 - 5 (23) Reluted Proceedinlls mean the actions commenced by Ontario Court File No. CV ~ (Windsor), Ontario Court File No. CV (Windsor), BC Court File No. VCL-S-S-I06362 (Vancouver Registry), Be Court File No. S~ (Vancouver Registry) and Superior COllrt of Quebec, Court File No. 500~ (Montreal). (24) Released Claims mean any and all manner ofclaims, demands, actions. suits, proceedings, causes of action, whether class, individual or otherwise in nature, whether personal or subrogated, damages whenever incurred, liabilities of any nature whatsoever, including interest, costs, expenses, class administration expenses (including Administration Expenses), penalties. and lawyers' fees (including Class Counsel Fees), known or unknown, suspected or unsuspected. actual or contingent. liquidated or unliquidated. in law, under statute or in equity that Releasors, or any ofthem, whether directly, indirectly, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have, relating in any way to any conduct anywhere, from January I to the date hereof, in respect ofthe purchase, sale, pricing, discounting. marketing, distributing ofor compensation for Polyurethane Foam Products, or relating to any conduct alleged (or which could have been alleged) in the Proceedings or the Related Proceedings including, without limitation, any such claims which have been asserted, would have been asserted, or could have been asserted, directly or indirectly, whether in Canada or elsewhere, as a result of or in connection with an alleged conspiracy or other unlawful agreement or combination or as a result of or in connection with any other alleged unlawful horizontal or vertical anti--competitive conduct in connection with the purchase, sale, pricing. discounting, marketing or distributing of Polyurethane Foam Products in Canada and including. without limitation, any claim for hann. damage or other relief in connection with oppressive or wrongful conduct under federal or provincial corporate statutes or at common or civil law arising from or in connection with any unlawful horizontal or vertical anti-competitive conduct alleged (or which could have been alleged) in the Proceedings or the Related Proceedings. (25) Releasees mean, jointly and severally, individually and collectively, the Settling Defendants and their heirs, executors, administrators and assigns. (26) Releasors mean, jointly and severally, individually and collectively, the Plaintiffs and the Settlement Class Members on behalfofthemselves and any person claiming by orthrough them as a parent, subsidiary, am liate. predecessor, successor, shareholder, partner, director, owner ofany kind.

17 -6 agent, employee. contractor, attorney, heir. executor, administrator, insurer, devisee, assignee or representative ofany kind. (27) Settlement Agreement means this agreement. including the recitals. (28) Settlement Cla.fses mean tjle Ontario Settlement Class and the BC Settlement Class. (29) Settlement Clas,f Member means a member of the Seulement Classes who did not validly opt-out of the Related Proceedings. (30) Settlement Class Period means January I to January 10, (31) Settling Defendants mean DougJao;; Dolphin and Antonio Da Costa (improperly named as Anthony On Costa). SECTION 2 - SETTLEMENT APPROVAL 2.1 All Reasonable Steps The Parties shall take all reasonable steps to effectuate this settlement and to secure the prompt, complete and final dismissal ofthe Proceedings with prejudice and without costs as against the Settling Defendants, including the bringing of motions for multijurisdictional hearings and disseminating notice. 2.2 Motions Certifying the Proceedings and Approving Notice (I) At a time mutually agreed to by the Plaintiffs and the Settling Defendants after this Settlement Agreement is executed, and which is as soon as practicable, the Plaintiffs shall bring motions before the Courts for orders: (a) (b) (c) certifying the Proceedings as Ii class proceedings as against the Settling Defendants for settlement purposes only; and approving the Settlement Agreement; and dismissing the Proceedings as against the Settling Defendants with prejudice and without costs.

18 (2) The order referred to in section 2.2 shah be in a fonn agreeable to the Plaintiffs and the Settling Defendants. (3) This Settlement Agreement shall only become final on the Effective Date. 2.3 Pre-Motion Confidentiality Until the first ofthe motions required by section 2, I. is brought. the Parties shall keep an of the terms of the Settlement Agreement confidential and shall not disclose them without the prior written consent ofcounsel for the Settling Defendants and Class Counsel, as the case may be. SECTION 3 - SETTLEMENT BENEF.ITS 3.1 Cooperation (J) The cooperation to be provided by the Settling Defendants under this section shall be limited to the allegations made in the Proceedings. (2) All documents and other information provided by the Settling Defendants or their counsel to Plaintiffs and Class Counsel under this Settlement Agreement may be used by Class Counsel, the Plaintiffs and their experts in connection with the prosecution ofthe Proceedings and/orthe Related Proceedings, and shah not be used directly or indirectly for any other purpose, including the prosecution of any claim against the Releasees. (3) All documents and other information provided by the Settling Defendants or their counsel to Plaintiffs and Class Counsel under this Settlement Agrec111.cnt are confidential. Except as authorized by this Settlement Agreement, such documents and other information may not be disclosed to any person in any manner, directly or indirectly, by Class Counselor any other person in any way for any reason, without the express prior written permission ofthe Settling Defendants. (4) (n the event that a person applies fbr an order requiring the.plaintiffs or Settlement Class Members to disclose or produce any documents or other information provided by the Settling Defendants as cooperation under this Settlement Agreement, Class Counsel shall notify the Settling Defendants of such application promptly upon becoming aware of it in order that the Settling Defendants may intervene to oppose such disclosure or production. In no circumstances shall

19 8 Plaintiffs, Settlement Class Members or Class Counsel apply for or consent to such an application for disclosure or production. (5) Within thirty (30) days ntler the Effective Date or at a time mutually agreed upon by the Panies, the Settling Defendants shall produce to Class Counsel the following infonnation currently in existence~ to the extent reasonably available; (a) (b) any documents in the possession of the Settling Defendants that are relevant to the alleged conduct; and any pre-existing documents that may have been provided by the Settling Defendants to the Canadian Competition Bureau that are relevant to the alleged conduct. excluding any documents created for the purpose of being so provided. (6) The obligation to produce documents pursuant to section 3.3(5) is a continuing one to the extent documents responsive to section 3.3(5) are identified following thc initial productions. (7) At Ii time mutually agrced to by the Parties after the Effective Datc, counsel for the Settling Defendants will meet in Toronto, or at another reasonable location in Ontario as mutually agreed by the Parties, with Class Counsel, on one (1) or more occasions as is reasonably necessary. but for no more than eight (8) hours in the aggregate, to provide information about the alleged conduct, including by providing an evidentiary proffer setting forth infonnation originating with the Settling Defendants and/or in their possession about the alleged conduct. Notwithstanding any other provision of this Settlement Agreement, and for greater certainty, it is agreed that all statements made and information provided by counsel for the Settling Defendants are privileged. will be kept strictly confidential and will not be used by Class Counsel for any purpose other than the prosecution ofthe Proceedings and/or Related Proceedings. Costs ofthese meetings shall be the responsibility of the Plaintiffs, excluding the travel and other costs ofcounsel for the Settling Defendants which will be the responsibility of the Settling Defendants. (8) At a time mutually agreed to by the Parties after the Effective Date, the Settling Defendants shall each, at the request of Class Counsel, upon reasonable notice, and subject to any legal restrictions, on one (I) or more occasions as is reasonably necessary, but for no more than eight (8) hours in the aggregate, make themselves available to provide infonnation regarding the alleged

20 -9 conduct in a personal interview with Class Counsel and/or experts retained by Class Counsel, at a location in Toronto, or at another reasonable location in Ontario as mutually agreed by the Parties. Notwithstanding any other provision oftl1is Settlement Agreement, and for greater c~rtainty, it is agreed that all statements made and information provided by the Settling Defendants will be kept strictly confidential and will not be lised by Class Counsel for any purpose other than the prosecution ofthe Proceedings and/or Related Proceedings. Costs ofthese interviews shall be the responsibi lity of the Plaintiffs. excluding the interviewee's travel costs and the costs of counsel for the Settling Defendants which will be the responsibility of the Settling Defendants. (9) Subject to the rules ofevidence. any court order with respect to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to provide at certification, trial and/or discovery or through acceptable afiidavits or other testimony in the Proceedings and/or the Related Proceedings evidence to establish for admission into evidence any of the Settling Defendants' documents and the information provided as cooperation pursuant to this Settlement Agreement, and agree to authenticate documents produced by the Defendants in the Proceedings and/or the defendants in the Related Proceedings that were created by, sent to, or received by the Settling Defendants. ( I 0) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants to perfonn any act which would violate any provincial, federaj or foreign law, to disclose or produce any documents or infonnation prepared by or for counsel for the Settling Defendants, or to disclose or produce any documents or information in breach of any order, regulatory directive, rule or provincial. federal or foreign Jaw, or subject to solicitor-client privilege, Iitigation privilege, or any other privilege. or to disclose or produce any information or documents they obtained on a privileged or co~operative basis from any person, including any party to any action or proceeding who is not a Settling Defendant. (11) If any documents protected by any privilege and/or any privacy law or other rule or law of this or any applicable jurisdiction are accidentally or inadvertently produced. such documents shall be promptly destroyed and the documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such documents shall in 110 way be construed to have waived in any manner any privilege or protection attached to such documents.

21 - 10 (12) The Settling Defendants' obligation to cooperate as particularized in this section shall not be affected by the release provisions contained in this Settlement Agreement. Unless this Settlement Agreement is not approved or is terminated (at which time the Settling Defendants' obligation to cooperate ceases), the Settling Defendants' obligations to cooperate shall cease at the date of termination of the Proceedings and the Related Proceedings against all defendants. ( 13) The provisions set forth in this section arc the exclusive means by which the Plaintiffs, Class Counsel and Settlement Class Members may obtain discovery from the Settling Defendants. The Plaintiffs, Class Counsel and Settlement Class Members agree that they shall not pursue any other means ofdiscovery against the Settling Defendants, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (14) A material. factor influencing the Settling Defendants' decision to execute this Settlement Agreement is their desire to limit the burden and expense ofthe Proceedings. Accordingly, Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, and to avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid il11posil\g undue or unreasonable burden or expense on the Settling Defendants. SECTION 4 - TERMINATION OF SETTLEMENT AGREEMENT 4.1 Events of Termination (1) The Settlement Agreement may be terminated, at the option ofthe Plaintiffs or ofthe Settling Defendants. in the event that: (a) (b) (c) the Plaintiffs and Settling Defendants are unable to agree on the form of orders required pursuant to this Settlement Agreement; the BC or Ontario Court declines to approve this Settlement Agreement or any material part hereof; the BC or Ontario Court approves this Settlement Agreement in a materially modified form;

22 - 11 (d) (e) any order approving this Settlement Agreement made by the BC or Ontario Court does not become a Final Order; or the Settling Defendants elect to terminate the Settlement Agreement because the costs ofnotice dissemination required by the Courts are greater than those they have agreed to bear. 4.2 IrSettlement Agreement is Terminated (J) If the Settlement Agreement is tenninated: (a) (b) except as provided in Section 4.3, the Settlement Agreement shall be null and void and have no further foroe or effect. shall not be binding on the Parties. and shall not be used as evidence or otherwise in any litigation; and if this Settlement Agreement is terminated. the Plaintiffs shall forthwith bring motions for an order declaring this Settlement Agreement to be null and void and of no forc e or effect (except for the provisions set out in section 4.3). 4.3 Sun'ival of Provisions After Termination (J) If this Settlement Agreement is terminated the provisions of sections 6.1 and 6.2 and the definitions applicable thereto shall survive the tennination and continue in full force and effect. The definitions applicable thereto shall survive only for the limited purpose of the interpretation of sections 6.1 and 6.2 within the meaning ofthis Settlement Agreement, but for no other purposes. All other provisions of this Settlement Agreement and all other obligations pursuant to this Settlement Agreement shall cease immediately. (2) The Settling Defendants and Plaintiffs expressly reserve all ofthe ir respective rights ifthis Settlement Agreement does not become effective or if this Settlement Agreemt.'l1t is terminated.

23 SECTION 5 - RELEASES AND DISMISSALS 5.1 Release of Releasee! Upon the Effective Date, and in consideration ofthe provision ofcooperation and for other valuable consideration set forth in the Settlement Agreement, the ReJeasors forever and absolutely relcase the Releasees from the Released Claims and agree that they will not seek to institute, maintain, prosecute or continue to prosecute any suit, action or other proceeding, or collect from or proceed against the Releasees or any of them based on the Released Claims. 5.2 Rclease by Releasees Upon the Effective Date, each Releasee forever and absolutely releases each of the other ReJeasees from any and all clai ms for contribution or indemnity with respect to the Released Claims. 5.3 Covenant Not To Sue Notwithstanding section 5.1. for any Settlement Class Members resident in any province or territory where the release ofone tortfeasor is a release of all other tortfeasors, the Releasors do not release the Releasees but instead covenant and undertake not to make any claim in any way or to threaten, commence, or continue any proceeding in any jurisdiction against the Releasees in respect ofor in relation to the Released Claims. 5.4 No Further Claims The Releasors shall not now or hereafter institute, continue, maintain or assert, either directly or indirectly, whether in Canada or elsewhere, on their own behalf or on behalfofany class or any other person. any claim against any Releasee or any other person who may claim contribution or indemnity from any Releasee in respect ofany Released Claim or any matter related thereto, except forthe continuation ofthe Proceedings against the Non-Settling Defendants and the continuation of the Related Proceedings. 5.5 Dismissal of the Proceedings The Proceedings shall be dismissed as against the Settling Defendants with prejudice and without costs.

24 Dismissal of the Other Actions (1) Each Settlement Class Member shall be deemed to consent to the dismissal, without costs and with prejudice, of his, her or its Other Actions against the Releasees. (2) All Other Actions commenced by any Settlement Class Member shall be dismissed against the Releasees, without costs and with prejudice. 5.7 Claims Reserved Except as provided herein, this Settlement Agreement does not settle, compromise. release or limit in any way whatsoever any claim by Settlement Class Members against any person other than the Rcleasees. SECTION 6 - EFFECT OF SETTLEMENT 6.1 No Admission of Liability Whether or not this Settlement Agreement is terminated, this Settlement Agreement and anything contained herein, and any and all negotiations, documents, discussions and proceedings associated with this Settlement Agreement, and any action taken to carry out this Settlement Agreement, shall not be deemed. construed or interpreted to be an admission ofany violation ofany provincial. federal or foreign statute or law, or of any wrongdoing or liability by any Settling Defendant, or of the truth of any of the claims or allegations contained in the Proceedings or any other pleading filed by the Plaintiffs. 6.2 Agreement Not Evidence The Parties agree that, whether or not it is terminated, this Settlement Agreement and anything contained herein, and any and all negotiations, documents, discussions and proceedings associated with this Settlement Agreement, and any actitm taken to carry out this Settlement Agreement, shall not be referred to, offered as evidence or received in evidence in any pending or future civil, criminal or administrative action or proceeding. except in a proceeding to approve and/or enforce this Settlement Agreement, or to defend against the assertion of Released Claims, or as otherwise required by law.

25 Restrictions On Further Litigation (I) No Class Counsel may directly or indirectly participate or be involved in or in any way assist with respect to any claim made by any person in rclation to the alleged conduct which is based on documcnts or other information provided by the Settling Defendants as cooperation under this Settlement Agreement, except in relation to the continued prosecution of the Proceedings and/or Related Proceedings. (2) Section 6.3( I) shall be inoperative to the extent that it requires any lawyer who is a member of a Law Society in Canada to breach his or her obligations under any applicable Code of Professional Conduct by refraining from participation or involvement in any claim or action in his or her jurisdiction. (3) It is agreed that subsection (1) above does not prevent Class Counsel from continuing to prosecute the Proceedings andlor the Related Proceedings on the understanding and agreement that no claim has or will be asserted by the Plaintiffs against the Settling Defendants in any of those Related Proceedings. SECTION 7 - CERTn~[CAnON FOR SETTLEMENT ONLY (I) The Parties agree that the Proceedings shall be certified as class proceedings solely for purposes of settlement of the Proceedings and the approval of this Settlement Agreement by the Courts. (2) The Plaintiffs agree that, in the motions for certification of the Proceedings as class proceedings and for the approval of this Settlement Agreement, the only common issue that they wi 1.1 seek to define is the Common Issue and the only classes that they will assert are the Settlement Classes. SECTION 8 - BAR ORDERS 8.1 Bar Orders (I) Bar orders shall be granted by the Ontario Court and the Be Court providing for the following:

26 - t 5 (a) (b) all claims for contribution, indemnity or other claims over, whether asserted or unasserted or asserted in a representative capacity, inclusive of interest, taxes and costs, relating to the Released Claims, which were or could have been brought in the Proceedings or otherwise, by any Non-Settling Defendant or any other person or party, against a Releasee, or by a Releasee against a Non-Settling Defendant, are barred, prohibited and enjoined in accordance with the terms of this section (unless such claim is made in respect ofa claim by a person who has validly opted out ofthe Related Proceedings as of the Effective Date); and jf it is ultimately determined, in these Proceedings, the Related Proceedings or otherwise, that there is a right of contribution and indemnity or other claims over, whether in equity or in law, by statute or otherwise: (i) (ii) the Plaintiffs and the Settlement Class Members shall not be entitled to claim or recover from the Non-Settling Defendants and/or named or unnamed coconspirators that are not Releasees that portion of any damages (including punitive damages, ifany) restitutionary award, disgorgement ofprofits, interest and costs (including investigative costs claimed pursuant to section 36 of the Competition Act) that corresponds to the Proportionate Liability of the Releasees proven at trial or otherwise, in respect of the Proceedings or otherwise; the Plaintiffs and the Settlement Class Members shall limit their claims against the Non-Settling Defendants andlor named or unnamed co.conspirators that are not Relcasees. and shall be entitled to recover from the Non-Settling Defendants and/or named or unnamed co-conspirators that are not Releasees, only those claims for damages, costs and interest attributable to the aggregate of the several liability of the Non-Settling Defendants and/or named or unnamed co-conspirators that are not Releasees to the Plaintiffs and the Settlement Class Members, if any, and, for greater certainty, the Settlement Class Members shall be entitled to claim and recover on a joint and severa) basis as between the Non~Settling Defendants and/or named or unnamed coconspirators who are not Releasees, to the extent provided by law; and

27 (iii) the Courts shall have full authority to determine the Proportionate Liability of the RcJeasees at the trial or other disposition ofthe Proceedings, whether or not the ReJeasees appear at the trial or other disposition and the Proportionate Liability orthe Releasees shall be determined as ifthe Releasees are parties to the Proceedings and any determination by the Court in respect of the Proportionate Liability ofthe Releasee.., shall only apply in the Proceedings and shall not be binding on the Releasees in any other proceedings 8.2 Motions by Non.Settling Defendants (I) A NonMSettiing Defendant may, on motion to the appropriate Court determined as if the Settling Defendant{s) remained a party to the Proceedings, and on at least ten ( I0) days~ notice to counsel for the Settling Defendant(s) and not to be brought unless and until the appropriate Proceed ing against the Non-Settling Defendants has been certified and all appeals or times to appeal have been exhausted, seek orders for the following: (a) (b) (c) (d) documentary discovery and the production ofdocuments in accordance with relevant rules of civil procedure t trom the Settling Dcfendant(s); oml discovery of the Settling Defendant(s), the transcript of which may be read at trial; leave to serve a request to admit on the Settling Dcfendant(s) in respect of factual matters; and/or production of the Settling Defcndant(s) to testify at trial, with such witness to be subject to cross-examination by counsel for the Non-Settling Defendants (2) The Settling Dcfendant(s) retains all rights to oppose such motion(s) brought under section 8.2(1). On any motion brought pursuant to section 8.2(1). the appropriate Court may make such orders as to costs and other temls as it considers appropriate. (3) A Non-Settling Defendant may effect service ofthe motion(s) referred to in section 8.2(1) on the Settling Defendant(s) by service on counsel of record for the Settling Defendant(s) in the appropriate Proceeding.

28 (4) To the extent that an order is granted pursuant to section 8.2( I) and discovery is provided to a NOll-SeW ing Defendant. a copy of all discovery provided. whether oral or documentary in nature, shall promptly be provided by the Settling Defendant(s) to the Plaintiffs. 8.3 Material Term (1) The form and content ofthe bar orders contemplated in section 8.1 ofthis Settlement Agreement shall be considered a material term ofthe Settlement Agreement in favour ofthe Settling Defendants and the failure oftile Courts to approve the bar orders contemplated herein shall give rise to a right of termination by the Settling Defendants pursuant to section 4 of this Settlement Agreement. For greater certainty, and notwithstanding any other term ofthis Settlement Agreement. the Plaintift~ and Class Counsel shall not have any right of termination in the event that the Courts fail to approve the bar orders contemplated herein. or if the Courts approve the bar orders contemplated herein in a materially modified form. SECTION 9 - NOTICE TO SETTLEMENT CLASSES 9.1 Notices Required The Settlement Classes shalf be given notice of: (i) the hearings at which the Courts wi II be asked to certify the Proceedings and approve the Settlement Agreement; and (H) the certification of the Proceedings as class proceedings and approval of this Settlement Agreement if granted by the COLIrtS. 9.2 Form and Dissemination of Notices (1) The notices referred to in section 9.1 shall be in a form agreed to by the Plaintiffs and Settling Defendants and approved by the COllrtS. (2) The notices referred to in section 9.1 shall be posted on the websites of Class Counsel dedicated to these Proceedings; and disseminated by any other means deemed prudent and appropriate by the Parties and approved by the Courts. (3) The costs of disseminating notices in accordance with section 9.2(2) shall be borne as follo\\'8:

29 - 18 (a) (b) (c) for the first $30,000.00, the costs shall be shared by the Plaintiffs and the Settling Defendants 50/50; for greater clarity and as an example only. if the total cost of disseminating notices in accordance with section 9.2(2) is $10, the Plaintiffs shall contribute $5, and the Settling Defendants shall contribute $;,000.00; any costs exceeding $30, shall be borne by the Settling Defendants; the Settling Defendants shall have the right, in their sole and absolute discretion, to terminate this Settlement Agreement ifthe costs ofdisseminating notice are beyond those that they are prepared to bear. (4) The Parties agree to make best efforts to work with the parties in the Proceedings andlor the Related Proceedings to coordinate and combine the dissemination of notice of this Settlement Agreement with other notices to be given in order to increase efficiency and reduce costs. 9.3 No Additional Opt-Out Period Because the conspiracy alleged in these Proceedings is the same conspiracy as is alleged in the Reluted Proceedings and the Settlement Classes sought to be certified in these Proceedings are identical to the national Settlement Class certified in the Related Proceeding and an extensive notice campaign in respect ofopt out rights was undertaken in the Related Proceedings, no further opt out period will be extended to the Settlement Classes in respect ofthis Settlement Agreement. SECTION 10 - MISCELLANEOUS 10.1 Motions for mrections (1) Any Party or Settling Defendant may apply to the Courts for directions in respect of the implementation and operation of this Settlement Agreement. (2) AU motions contemplated by this Settlement Agreement shall be on notice to the Parties Headings, etc. In this Settlement Agn..sement:

30 (a) (b) (e) the division ofthe Settlement Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Settlement Agreement; the [enns "this Settlement Agreement", "hereof', "hereunder", "herein", and similar expressions refer to this Settlement Agreement and not to any particular section or other portion of this Settlement Agreement, and; any reference to a "person" includes an individual and all types of business, legal, personal representative and government entities, and all oftheir heirs, predecessors, successors representatives or assignees Compu1ation of Time appears, In the computation oftime in this Settlement Agreement, except where acontrary intention (a) (b) where Hlere is a reference to B. number of days between two events, the number of days shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, including all calendar days; and only in the case where the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday Governing Law This Settlement Agreement shah be governed by and construed and interpreted in accordance with the laws of the Province of Ontario Entlre Agreement This Settlement Agreement constitutes the entire agreement among the Parties, and supersedes all prior and contemporaneous understandings, undertakings, negotiations, representations, promises, agreements, agreements in principle and memoranda ofunderstanding in connection herewith. None of the Parties witl be bound by any prior obligations, conditions or