ONTARIO SUPERIOR COURT OF JUSTICE NOTICE OF ACTION

Transcription

1 Court File No. -3'-t~ -\\ ~( ONTARIO SUPERIOR COURT OF JUSTICE ROBERT LEFEVER and GAlL RUNNELS Plaintiffs -and- SMART TECHNOLOGIES INC., APAX PARTNERS L.P., APAX PARTNERS EUROPE MANAGERS LTD., SCHOOL S.A.R.L., INTEL CORPORATION, MORGAN STANLEY CANADA LIMITED, DEUTSCHE BANK SECURITIES LIMITED RBC DOMINION SECURITIES LIMITED, MERRILL LYNCH CANADA INC., CREDIT SUISSE SECURITIES (CANADA) INC., STIFEL NICOLAUS CANADA INC. (fka THOMAS WEISEL PARTNERS CANADA INC.), DAVID A. MARTIN, NANCY L. KNOWLTON, SALIM NATHOO, ARVIND SODHANI, MICHAEL J. MUELLER, ROBERT C. HAGERTY, and G.A. (DREW) FITCH Defendants TO THE DEFENDANTS NOTICE OF ACTION (Proceeding under the Class Proceedings Act, 1992) A LEGAL PROCEEDING HAS BEEN COMMENCED AGAJNST YOU by the plaintiff. The claim made against you is set out in the statement of claim served with this notice of action. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting fo r you must prepare a statement of defence in Form!SA prescribed by the Rules of Civil Procedure, serve it on the plaintiffs lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service., in this court office, WIT!!TN TWENTY DAYS after this notice of action is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period fo r serving and tiling your statement o f defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Fonn 188 prescribed by the Rules of Civil Procedure. This wi ll entitle you to ten more days within which to serve and file your statement of defence.

2 - 2- IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITI lout FURTHER NOTfCE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL PEES, LEGAL AID MAY BE AVA ILABLE TO YOU BY CONTACTrNG A LOCAL LEGAL AID OFFICE. IF YOU PAY THE PLAINTIFF'S CLAIM, and $» for costs, within the time for serving and filing your statement of defence, you may move to have this proceeding dismissed by the court. If you believe the amount claimed for costs is excessive, you may pay the plaintiffs claim and $ for costs and have the costs assessed by the court. Date I February<-6, 2011 Address of 80 Dundas Street court office London, ON TO Smart Technologies Inc., T2L lyl Apax Partners L.P. c/o Ooodmans LLP 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7 Apax Partners Europe Managers Limited c/o Goodmans LLP 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7 School S.a.r.l. c/o Goodmans LLP 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7

3 - 3 - Intel Corporation c/o Canada Inc. c/o Stiken1an Elliott LLP, Rem!-Levesque Blvd. West, 40th Floor, Montreal, Quebec H3 B 3 V2 Morgan Stanley Canada Limited Brookfield Place, 181 Bay Street Suite 3700 Toronto, Ontario, M5J 2T3 Deutsche Bank Securities Limited 199 Bay Street, Suite 4700, Commerce Court West, Box 263 Toronto, Ontario, MSL 1 E9 RBC Dominion Securities Limited Royal Bank Plaza, South Tower, 4th Floor, Toronto, Ontario MSJ 2W7 Merrill Lynch Canada Inc. BCE Place, Wellington Tower 18 1 Bay Street 4th and 5th Floors Toronto, ON M5J 2V8 Credit Suisse Securities (Canada) Inc. I First Canadian Place I 00 King Street West, Suite 2900 Toronto, Ontario M5X I C9 Stifel Nicolaus Canada Inc.(fka Thomas Weisel Partners Canada Inc.) 79 Wellington Street West Floor Toronto, ON MSK 187 David A. Martin T2L!Yl Nancy L. Knowlton, T2L IYI

4 -4- Salim Nathoo, T2L IYl Arvind Sodhani, c/o Sma11 Technologies lnc. T2L 1Yl Robert C. Hagerty, Research Road NW T2L 1 Yl Michael J. Mueller, T2L 1 Yl G.A. (Drew) Fitch c/o Smart Technol.ogies lnc. T2L IYI CLAIM I. The plaintiff claims: (a) An order certifying this action as a class proceeding and appointing the plaintiffs as representative plaintiffs for a class defined as: All persons, (other than the Defendants, their past and present subsidiaries, affiliates, officers, directors, senior employees, legal representatives, heirs, predecessors, successors, and assigns, and any member of the families of David A. Martin, Nancy L. Knowlton, Salim Nathoo, Arvind Sodhani, Michael J. Mueller, Robert C. Hagerty, and G.A. (Drew) Filch) who purchased or acquired the securities of Smart Technologies Inc. during the period of distribution or during distribution to the public of securities offered by the prospectus dated July 1-1,

5 and supplemenled July 15, 2010 authorizing the distribulion of Class A Subordinate Voling Shares of Smart Technologies inc. (the "Class" or "Class Members") or such other class definition as may be approved by the Court; (b) A declaration that the prospectus dated July 1.4, 2010 as supplemented July 15, 2010, authorizing the distribution of 38,830,000 Class A Subordinate Voting Shares of Smart Technologies Inc. contajncd one or more misrepresentations; (c) (d) (e) (f) (g) (h) A declaration that Smart Technologies Inc. is vicariously liable for the acts and/or omissions of David A. Mat1in, Nancy L. Knowlton, Salim Nathoo, Arvind Sodhani, Michael J. Mueller, Robert C. Hagerty, G.A. (Drew) Fitch and each of its other officers, directors, and employees; General and special damages in the sum of $100,000,000 or such other sum as this Court finds appropriate at the trial of the common issues or at a reference or references; An order directing a reference or giving such other directions as may be necessary to determine issues not determined at the trial of the common issues; Prejudgment and post judgment interest; Costs of this action on a substantial indemnity basis or in an amount that provides full indemnity plus, pursuant to subs. 26(9) of the Class Proceedings Act, 1992, the costs of notice and of administering the plan distribution of the recovery in this action plus applicable taxes; and Such further and other relief as to this Honourable Court may seem just. 2. Between July 15 and July 20, 20 I 0, the defendants Smart Technologies Inc., SCHOOL S.a.r.l. Apax Partners L.P., Apa-x Partners Europe Managers Ltd., and Intel Corporation sold 38,630,000 Class A Subordinate Voting Shares of Smart Teclmologies Inc. pursuant to a long form prospectus fi led with the securities regulators in each province and

6 - 6 - territory of Canada as well as the United States and dated July 14, 20 I 0. The total proceeds of those sales exceeded US$660,000, That prospectus contained one or more misrepresentations within the meaning of the securities legislation applicable in each o f those jurisdictions. As such, the Plaintiffs' will plead and rely on the Securities Acts of every j urisdiction in Canada, including, without limiting the generality of the foregoing: (a) Securities Act, RSA 2000, c S-4, s. 203; (b) Securities Act, SNB 2004, c S-5, s. 149; (c) Securities Act, RSO 1990, c S.5 s. 130; (d) SecuritiesAct, CCSM c S50,s. l41 ; (c) Securities Act, RSBC 1996, c 418, s. 13 1; (/) Securities Act 1988, SS , c S-42.2, s. 137; (g) Securities Act, RSNS 1989, c 418, s. 137; (h) Securities Act, RSNL 1990, c S-13, s. 130; (i) Securities Act, RSPEJ 1988, c S-3.1, s. 111 ; U) Securities Act, RSQ c V-1.1, ss. 217,219,225, ; (k) Securities Act, SNWT 2008, c 10, s. 111 ; (I) Consolidation of Securities Act, SNu 2008, c 12, s. Ill; and (m) Securities Act, SY 2007, c 16, s. Ill. 4. On November 9, 20 10, Smart Technologies Inc. released its interim financial statements and management's discussion and analysis for the second quarter of 2010 (during

7 - 7 - which period the prospectus was filed, certifying that it contained full, true and pjajn disclosure of all material facts relating to the securities being issued and sold thereunder). 5. Among other things, those documents disclosed that Smart Technologies Inc. was not performing nearly as well as it was represented to be performing in the prospectus. Jn particular, the prospectus fa iled to disclose the significant decline in the rate at which Smart Technologies Inc.'s sales were growing and the poor performance of its recent acquisition of Next Window. 6. Following the release of Smart Technologies Inc.'s financial statements and management's discussion and analysis for the second quarter of 2010, the trading price of its shares on the TSX and the NASDAQ declined significantly, resulting in damages to the Plaintiffs and Class Members. 7. The Plaintiffs Robert Lefever and Gail Runnels jointly purchased 1100 shares of Smart Technologies Inc. Subordinate Class A Voting Shares for US$17.00 per share on July 15, The Defendant Smart Technologies Inc. is the issuer of the securities offered by the prospectus. 9. The Defendants Apax Partners LLP, Apax Partners Europe Managers Ltd., School S.a.r.l., and Intel Corporation sold Class A Subordinate Voting shares offered pursuant to the prospectus. 10. The Defendants Morgan Stanley Canada Limited, Deutsche Bank Securities Limited RBC Dominion Securities Limited, Merrill Lynch Canada Inc., Credit Suisse Securities (Canada) Inc., and Stifel N icolaus Canada Inc. were the underwriters of the offering conducted by way of the prospectus and certified the accuracy of the prospectus to the best of their knowledge, information and belief. 11. The Defendants David A. Martin, Nancy L. Knowlton, Salim Nathoo, Arvind Sodhani, Michael J. Mueller, and Robert C. Hagerty were directors of Smart Technologies [nc. at the time that the prospectus was filed.

8 G.A. (Drew) Fitch signed the prospectus in his capacity as Vice President, Finance, and Chief Financial Officer of Smart Technologies tnc. 13. The Plaintiffs may serve the Notice of Action and Statement of Claim outside of Ontario without leave in accordance with rule of the Rules of Civil Procedure, because it is : (a) A claim in respect of personal property in Ontario (para 17.02(a)); (b) A claim in respect of damage sustained in Ontario (para l7.02h); (c) A claim authorized by statue to be made against a person outside of Ontario by a proceeding in Ontario (para 17.02(n)); and (d) A claim against a person outside of Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario (para 17.02(o)). February 8, 20 II Siskinds LLP Barristers & Solicitors 680 Waterloo Street P.O. Box 2520 London, ON N6A 3V8 Michael G. Robb LSUC#: Tel: (519) Fax: (5 19) Lawyers for the Plaintiff

9 ROBERT LEFEVER and GAIL RUNNELS d SMART TECHNOLOGIES INC. Plaintiff an Defendants Court File No: --34 :?o - \ \s(( ONTARIO SUPERIOR COURT OF JUSTICE Proceeding commenced at London NOTICE OF ACTION Siskinds LLP Barristers & Solicitors 680 Waterloo Street P.O. Box 2520 London, ON N6A 3V8 Michael G. Robb LSUC#: 45787G Tel: (51 9) Fax: (519) Lawyers for the Plaintiffs