Court File No. 3957-11CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PETER ROONEY and ARCHIE LEACH Plaintiffs - and - ARCELORMITTAL S.A., LAKSHMI N. MITTAL, ADITYA MITTAL, 1843208 ONTARIO INC., PHILIPPUS F. DU TOIT, NUNAVUT IRON ORE ACQUISITION INC., IRON ORE HOLDINGS, LP, NGP MIDSTREAM & RESOURCES, L.P., NGP M&R OFFSHORE HOLDINGS, L.P., JOWDAT WAHEED, BRUCE WALTER, JOHN T. RAYMOND, JOHN CALVERT, BAFFINLAND IRON MINES CORPORATION, RICHARD D. MCCLOSKEY, JOHN LYDALL and DANIELLA DIMITROV Defendants Proceedings under the Class Proceedings Act, 1992 NOTICE OF MOTION FOR CERTIFICATION AS A CLASS PROCEEDING The Plaintiffs will make a motion to the Honourable Justice Rady, on a date and at a time to be fixed, at the Courthouse, 80 Dundas Street, London, Ontario. PROPOSED METHOD OF HEARING: The motion is to be heard orally. THE MOTION IS FOR: 1. an Order: (a) (b) certifying the action as a class proceeding; appointing the Plaintiffs as the representative plaintiffs;
(c) defining the Class or Class Members as: All persons, other than Excluded Persons*: (i) (ii) (iii) who tendered for sale BIM Securities to take-over bids by ArcelorMittal, Nunavut, Iron Ore Holdings, NGP Midstream, NGP M&R and/or 1843208 (collectively, the Offerors ) and whose BIM Securities were taken up by the Offerors; who disposed of BIM Securities after January 14, 2011, including persons who sold their BIM Securities on the secondary market or otherwise; or whose BIM Securities were automatically transferred or deemed to have been transferred to 1843208 pursuant to the Plan of Arrangement either by exercise of their dissent rights or otherwise. * Excluded Persons means the Defendants, and their past and present subsidiaries, affiliates, officers, directors, senior employees, legal representatives, heirs, predecessors, successors and assigns, and any member of the families of the Individual Defendants. (d) stating the nature of the claims asserted on behalf of the Class to be relief arising out of: (i) circular misrepresentation under section 131 of the OSA (unless otherwise stated or the context otherwise indicates, capitalized terms used in this notice of motion have the meanings attributed to them in the Plaintiffs Statement of Claim dated May 18, 2011 (the Claim )) and the equivalent provisions of the Other Canadian Securities Acts; (ii) insider trading and/or tipping under section 134 of the OSA and the equivalent provisions of the Other Canadian Securities Acts; (iii) oppression under the OBCA; and (iv) unjust enrichment; (e) (f) stating that the relief sought by the Class is set out in paragraph 3 of the Claim; stating the common issues for the Class to be the following common issues or such amendments thereto or such other common issues as counsel may advise and this Honourable Court may permit:
Common Issues Relating to the Circular Misrepresentation Claim (i) Did the Original Circular and the Amending Notices, or any of them, contain a misrepresentation within the meaning of the OSA (or the Other Canadian Securities Acts)? (ii) If the answer to (i) is yes, are the Offerors, Lakshmi Mittal, Aditya Mittal, du Toit, Waheed, Walter, Raymond and Calvert, or any of them, liable to Class Members pursuant to section 131(1) of the OSA (or the equivalent provisions of the Other Canadian Securities Acts)? (iii) If the answer to (ii) is yes, are Class Members entitled to rescission or damages against the Offerors, and damages against Lakshmi Mittal, Aditya Mittal, du Toit, Waheed, Walter, Raymond and Calvert? (iv) If the answer to (iii) is yes with respect to damages, what is the quantum of damages payable calculated on a per BIM Security basis? (v) Did the ArcelorMittal Directors Circular, the ArcelorMittal Directors Circular Amending Notices, the Nunavut Directors Circular and the Nunavut Directors Circular Amending Notices, or any of them, contain a misrepresentation within the meaning of the OSA (or the Other Canadian Securities Acts)? (vi) If the answer to (v) is yes, are Richard D. McCloskey, John Lydall and Daniella Dimitrov (collectively, the BIM Officers and Directors ) liable to Class Members pursuant to section 131(2) of the OSA (or the equivalent provisions of the Other Canadian Securities Acts)?
(vii) If the answer to (vi) is yes, are Class Members entitled to damages against the BIM Officers and Directors? (viii) If the answer to (vii) is yes, what quantum of damages calculated on a per BIM Security basis are payable in respect of that liability? Common Issues Relating to the Insider Trading and/or Tipping Claim (ix) Were the Offerors, Waheed, or any of them, in a special relationship with Baffinland Iron Mines Corporation ( BIM ) within the meaning of the OSA (or the equivalent provisions of the Other Canadian Securities Acts)? (x) Did the Offerors, Waheed, or any of them, propose to make a take-over bid for the securities of BIM or become a party to a reorganization, amalgamation, merger, arrangement or similar business combination with BIM? (xi) Did the Offerors, or any of them, purchase securities of BIM with knowledge of a material fact with respect to BIM that had not been generally disclosed within the meaning of section 134 of the OSA (or the equivalent provisions of the Other Canadian Securities Acts)? (xii) If the answer to (xi) is yes, what quantum of damages calculated on a per BIM Security basis are payable by the Offerors or any of them? (xiii) Did the Offerors, Waheed, or any of them, inform any others of the Offerors of a material fact with respect to BIM that had not been generally disclosed?
(xiv) If the answer to (xiii) is yes, what quantum of damages calculated on a per BIM Security basis are payable by any of the Offerors or Waheed in respect of that liability? Common Issues Relating to the Unjust Enrichment Claim (xv) Were the Offerors, or any of them, unjustly enriched by their failure to comply with Canadian securities laws in connection with the acquisition of BIM Securities? (xvi) If the answer to (xv) is yes, what quantum of damages or restitution payable to Class Members calculated on a per BIM Security basis are payable by each of the Offerors? Common Issues Relating to the Oppression Claim (xvii) Have the acts or omissions of BIM effected a result, the business or affairs of BIM been carried on or conducted in a manner, or the powers of the BIM Officers and Directors been exercised in a manner, that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of the Class Members within the meaning of section 248 of the OBCA? (xviii) If the answer to (xvii) is yes, what is the appropriate remedy? Other Common Issues (xix) Is ArcelorMittal vicariously liable or otherwise responsible for the acts or omissions of either or both of Lakshmi Mittal and Aditya Mittal? (xx) Is 1843208 vicariously liable or otherwise responsible for the acts or omissions of du Toit?
(xxi) Is Nunavut vicariously liable or otherwise responsible for the acts or omissions of some or all of Waheed, Walter and Raymond? (xxii) Is Iron Ore Holdings vicariously liable or otherwise responsible for the acts or omissions of some or all of Waheed, Walter and Raymond? (xxiii) Is NGP Midstream vicariously liable or otherwise responsible for the acts or omissions of either or both of Raymond and Calvert? (xxiv) Is NGP M&R vicariously liable or otherwise responsible for the acts or omissions of either or both of Raymond and Calvert? (xxv) Is BIM vicariously liable or otherwise responsible for the acts or omissions of some or all of the BIM Officers and Directors? (xxvi) Should the Defendants pay the costs of administering and distributing the recovery? If so, which Defendants should pay, and how much? (xxvii) Are the Defendants jointly and severally liable to pay for any or all of the damages or costs payable to the Class?; (g) settling the form and content of the notice of certification, and approving the method for dissemination of the notice of certification; (h) specifying that: (i) a person may opt out of this class proceeding by sending written election by regular mail to be received on or before a time and a date to be fixed by the Court; (ii) no person may opt out of this class proceeding after a fixed date; and
(iii) a person who opts out in accordance with the directions of this Court shall not be a Class Member on or after the date that such person opts out of the proceeding; (i) (j) requiring the Defendants to pay for the costs of giving notice of certification; staying any other proceeding relating to the subject matter of this proposed class proceeding; and (k) declaring that no other proceeding relating to this action may be commenced without leave of the Honourable Justice Rady; 2. costs of this motion on a substantial indemnity basis, or in an amount that provides full indemnity, plus applicable taxes; and 3. such further and other order and relief as counsel may request and this Honourable Court may deem just. THE GROUNDS FOR THE MOTION ARE: 1. the criteria set forth in section 5(1) of the Class Proceedings Act, 1992, SO 1992, c 6 (the CPA ) are satisfied; 2. the notice program described in the litigation plan is a reasonable method of notifying the putative Class; 3. it is fair, just and reasonable that the Defendants should pay the costs of the notice program; 4. the OSA; 5. the Securities Act, RSA 2000, c S-4, as amended;
6. the Securities Act, RSBC 1996, c 418, as amended; 7. The Securities Act, CCSM c S50, as amended; 8. the Securities Act, SNB 2004, c S-5.5, as amended; 9. the Securities Act, RSNL 1990, c S-13, as amended; 10. the Securities Act, SNWT 2008, c 10, as amended; 11. the Securities Act, RSNS 1989, c 418, as amended; 12. the Securities Act, S Nu 2008, c 12, as amended; 13. the Securities Act, RSPEI 1988, c S-3.1, as amended; 14. the Securities Act, RSQ c V-1.1, as amended; 15. The Securities Act, 1988, SS 1988-89, c S-42.2, as amended; 16. the Securities Act, SY 2007, c 16, as amended; 17. the OBCA; 18. the CPA and, in particular, sections 1, 2, 5, 6, 8(1), 9, 12, 13, 17, 20, 21, 22, 24 and 34(1); 19. the Rules of Civil Procedure, RRO 1990, Reg 194 and, in particular, Rules 1.04(1) and 12; and 20. such further and other grounds as counsel may advise and this Honourable Court may deem just. motion: THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the 1. the affidavit of Anthony O Brien sworn September 15, 2011;
2. the affidavit of Peter Rooney sworn September 15, 2011; 3. the affidavit of Archie Leach sworn September 15, 2011; and 4. such further and other evidence as counsel may advise and this Honourable Court may deem just. Date: September 15, 2011 Siskinds LLP 680 Waterloo Street P.O. Box 2542 London, ON N6A 3V8 A. Dimitri Lascaris (LSUC#: 50074A) Tel: 519-660-7844 Fax: 519-660-7845 Michael G. Robb (LSUC#: 45878G) Tel: 519-660-7872 Fax: 519-660-7873 Douglas Worndl (LSUC#: 30170P) Tel: 416-362-8334 Fax: 416-362-2610 Anthony O Brien (LSUC#: 56129U) Tel: 416-362-8334 Fax: 416-362-2610 Lawyers for the Plaintiffs
TO: Norton Rose OR LLP Royal Bank Plaza, South Tower, Suite 3800 200 Bay Street, P.O. Box 84 Toronto, ON M5J 2Z4 Alan Mark Steve Tenai Tel: 416-216-4023 Fax: 416-216-3930 Lawyers for the Defendants, ArcelorMittal S.A., Lakshmi N. Mittal, Aditya Mittal], 1843208 Ontario Inc., Phillipus F. du Toit and Baffinland Iron Mines Corporation Davies Ward Phillips & Vineberg LLP 44 th Floor, 1 First Canadian Place Toronto, ON M5X 1B1 Kent Thomson Andrea L. Burke Tel: 416-863-0900 Fax: 416-863-0871 Lawyers for the Defendants, Nunavut Iron Ore Acquisition Inc., Iron Ore Holdings, LP, NGP Midstream & Resources, L.P., NGP M&R Offshore Holdings, L.P., Jowdat Waheed, Bruce Walter, John T. Raymond and John Calvert Stikeman Elliott LLP Barristers and Solicitors 5300 Commerce Court West 199 Bay Street Toronto, ON M5L 1B9 Alan L.W. D Silva Alex Rose Tel: 416-869-5204 Fax: 416-947-0866 Lawyers for the Defendants, Richard D. McCloskey, John Lydall and Daniella Dimitrov