IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS IN RE POTASH ANTITRUST ) MDL Dkt. No. 1996 LITIGATION (II) ) ---------------------------------------------------- ) No. 1:08-CV-6910 THIS DOCUMENT RELATES TO ALL ) DIRECT PURCHASER ACTIONS ) Hon. Ruben Castillo NOTICE OF PROPOSED SETTLEMENT IN CLASS ACTION TO: ALL PERSONS AND ENTITIES (EXCLUDING GOVERNMENT ENTITIES) WHO PURCHASED POTASH IN THE UNITED STATES DIRECTLY FROM ONE OR MORE DEFENDANTS LISTED BELOW BETWEEN JULY 1, 2003 AND JANUARY 30, 2013: Agrium, Inc. Agrium U.S., Inc. The Mosaic Company Mosaic Crop Nutrition, LLC Potash Corporation of Saskatchewan Inc. PCS Sales (USA), Inc. JSC Uralkali JSC Silvinit JSC Belarusian Potash Company (n/k/a MOS Holdings Inc.) JSC International Potash Company BPC Chicago L.L.C. A Federal Court authorized this notice. This is not a solicitation from a lawyer. A new settlement has been reached in a class action lawsuit involving potash. Previously, you were sent a notice regarding a partial settlement with Defendants JSC Uralkali and JSC Silvinit (and their affiliates, JSC Belarusian Potash Company, BPC Chicago L.L.C., and JSC International Potash Company). This notice pertains to a subsequent settlement with the remaining Defendants in this case. The lawsuit alleges that the companies included in this Settlement, called Settling Defendants, conspired with other potash producing companies to fix prices for potash. Plaintiffs allege that Defendants agreed to restrict their output or sales and increase the prices they charged for potash they sold. The Settling Defendants (identified in Question 1 below) deny they did anything wrong. They have asserted a number of defenses but have nevertheless agreed to settle to avoid the cost and risk of trial. If you bought potash in the U.S. directly from one or more of the Defendants (defined in Question 1) between July 1, 2003 and January 30, 2013, you could be a Settlement Class Member (discussed in Questions 1, 3, and 5). Your legal rights will be affected whether you act or you don t act. This notice includes information on the Settlement and the litigation. Please read the entire notice carefully. WHAT ARE MY OPTIONS DO NOTHING You do not have to take any action now to remain part of the litigation. If you wish to make a claim against the Settlement Fund, you will need SUBMIT A CLAIM FORM to file a claim by August 1, 2013 in order to receive money from the settlements. (See Question 9.) OBJECT Write to the Court if you do not like the Settlement. (See Question 17.) GO TO THE COURT S HEARING If you submit an objection, you may also speak at the hearing about your objection. (See Question 21.) EXCLUDE YOURSELF Exclude yourself from this Settlement. (See Question 11.) PTL_NOT_II_130219
The Court in charge of this case has preliminarily approved the Settlement but still has to decide whether to finally approve the Settlement. If the Court grants final approval of the Settlement, then a settlement fund (the Settlement Fund ) will be established that will be distributed as described below, or as ordered by the Court. TABLE OF CONTENTS WHAT THIS NOTICE CONTAINS BASIC INFORMATION... 2 WHO IS IN THE SETTLEMENT?... 3 THE SETTLEMENT S BENEFITS.. 4 EXCLUDING YOURSELF FROM THE SETTLEMENT... 5 THE LAWYERS REPRESENTING YOU... 6 OBJECTING TO THE SETTLEMENT 7 THE COURT S FINAL APPROVAL HEARING 8 ADDITIONAL INFORMATION.. 8 1. What is this lawsuit about? BASIC INFORMATION Certain potash suppliers ( Defendants ) in Canada, the United States, Russia and Belarus were sued by several businesses ( Plaintiffs ) who allege that Defendants conspired and agreed, in violation of the antitrust laws of the United States, to restrict the supply and raise or fix the prices for potash sold in the United States between July 1, 2003 and the present. The complaint describes how the Defendants and Co-Conspirators allegedly violated the U.S. antitrust laws by establishing a global cartel that set artificially high prices for and restricted the supply of potash. Defendants deny Plaintiffs allegations. The Court has not decided who is right. Two of the Defendants the Plaintiffs sued, JSC Uralkali and the company formerly known as JSC Silvinit, previously agreed to settle the lawsuit. JSC Uralkali and JSC Silvinit sold much of their potash through Defendants JSC Belarusian Potash Company and BPC Chicago L.L.C. (collectively BPC ) and JSC International Potash Company ( IPC ). These five companies are called Russian/Belarusian Defendants. That previous settlement, if given final approval by the Court, will release claims against the Russian/Belarusian Defendants. The remaining Defendants Agrium, Inc., Agrium U.S., Inc., The Mosaic Company (n/k/a MOS Holdings, Inc.), Mosaic Crop Nutrition, LLC, Potash Corporation of Saskatchewan Inc., and PCS Sales (USA), Inc. have now agreed to settle the lawsuit. These companies are called the Settling Defendants. The Russian/Belarusian Defendants and the Settling Defendants together are the Defendants. The Settling Defendants deny they have done anything wrong. The Settling Defendants have asserted a number of defenses but have agreed to settle to avoid the cost and risk of trial. Multiple lawsuits were consolidated into one lawsuit in the United States District Court for the Northern District of Illinois. The case is called In re Potash Antitrust Litigation (II) (sometimes also called Minn-Chem, Inc. et al. v. Agrium Inc. et al.), and the court s file number is No. 1:08-cv-6910, MDL No. 1996. 2. What is the difference between a Direct Purchaser and an Indirect Purchaser? This notice and the proposed Settlement it describes refer to the case filed on behalf of people and businesses which purchased potash directly from Settling Defendants or their affiliates, or from a Russian/Belarusian Defendant. There is a separate case involving indirect purchasers of potash those who purchased potash from an intermediary such as a distributor, wholesaler or retailer who is not a named Defendant and those purchasers are not included in this Settlement. 2
You could be a member of both the direct purchaser class and the indirect purchaser class, and you might qualify to receive payment from both settlements. It depends on from whom you purchased potash between July 1, 2003 and January 30, 2013. However, you cannot collect twice for the same purchase, so if you make a claim in the direct case, you cannot make a claim for the same purchase in the indirect case. Similarly, if you make a claim in the indirect case, you cannot make a claim for the same purchase in the direct case. 3. Why is this a class action? In a class action, one or more people or businesses, called class representatives, sue on behalf of themselves and others who have similar claims. All of those who have claims similar to the class representatives are Class Members, except for those who are excluded or who exclude themselves from the class (see Question 11). In this Direct Purchaser case, Gage s Fertilizer & Grain, Inc., Kraft Chemical Company, Minn-Chem, Inc., Shannon D. Flinn, Thomasville Feed & Seed, Inc., and Westside Forestry Services, Inc. d/b/a Signature Lawn Care are the Class Representatives. The Court has certified a Settlement Class (see Question 5) and appointed Co-Lead Class Counsel and Liaison Counsel for the Settlement Class. 4. Why is there a Settlement? There has not yet been a determination of the merits of this case. Class Counsel have investigated the facts and law regarding the Class Representatives claims and the Settling Defendants defenses. The parties engaged in lengthy, detailed negotiations to reach this Settlement. The Class Representatives and Class Counsel recommend the Settlement as being in the best interests of the Settlement Class Members. 5. How do I know if I am part of the Settlement? WHO IS IN THE SETTLEMENT? You are included in the Direct Purchasers Settlement (as a Settlement Class Member) if you purchased potash in the United States directly from one or more of the Settling Defendants, or from Defendants JSC Uralkali or JSC Silvinit or their affiliates including JSC Belarusian Potash Company, BPC Chicago L.L.C. and JSC International Potash Company, between July 1, 2003 and January 30, 2013. A Direct Purchaser is a person or business who bought potash directly from one or more of any of the Defendants as opposed to buying from an intermediary (such as a distributor). An indirect purchaser is someone who purchased potash through an intermediary such as a distributor, wholesaler or retailer who is not a named Defendant. Businesses or individuals may be Settlement Class Members, as long as he, she or it made a qualifying purchase of potash. You are not a member of the Settlement Class, even if you meet the above criteria, if you are a government entity, one of the Defendants, or their parent companies, subsidiaries or affiliates. You are not a member of the Settlement Class if you are one of the judges or justices assigned to hear any aspect of the case. 6. What is potash? Potash, a mineral or chemical salt that contains potassium, is a key agricultural fertilizer that farmers use to help crops fight disease and enhance crop yields. Potash is mined from naturally occurring ore deposits, concentrated in certain parts of the world. While its main use is in fertilizing, people and companies also use potash in metal plating and production of glass, ceramics, soaps, and animal feed supplements. 7. I'm still not sure if I m a Settlement Class Member. If you are still not sure whether you are a member of the Settlement Class, you can call 1-866-482-4786 or visit www.potashantitrust-classaction.com. 3
8. What does the Settlement provide? THE SETTLEMENT S BENEFITS The Settling Defendants have agreed to pay $80 million for the benefit of the Class. This money will be put into the Settlement Fund that will be distributed as described below. (See Question 9.) Although it is fairly common for settlements in class actions to include a provision that allows defendants to terminate the settlement if there are a significant number of people who opt out of the settlement, there is no such provision in this Settlement. 9. How do I submit a claim for Benefits from the Settlement? If you wish to receive a payment from the Settlement Fund you must complete a claim form. A claim form is enclosed with this notice. Claim forms must be filed by August 1, 2013. If you wish to file a claim online, go to www.potashantitrust-classaction.com. You may instead mail your claim form to the Claims Administrator at the following address: Potash Antitrust Case Claims Administrator c/o KCC Class Action Services P.O. Box 6177 Novato, CA, 94948-6177 If you have any questions, please call the Claims Administrator at 1-866-482-4786. Class Members outside of the U.S. may reach the Claims Administrator at 1-781-575-4382. Please preserve and keep all documentation you have about purchasing potash during the relevant dates in case such documentation is requested by the Claims Administrator. Settlement Class Members who submit valid and timely claim forms will be entitled to receive a cash payment. The Direct Purchaser Plaintiffs must propose, and the Court must approve, a plan to distribute the Settlement Fund. This plan is called a plan of allocation. A plan of allocation will be submitted to the Court by Class Counsel on or before June 5, 2013, the date by which Class Counsel also will file a motion for final approval of this Settlement with the Court. The plan of allocation has not yet been determined. However, it is common for the plan of allocation to be on a pro-rata basis in cases such as this, which means that the ratio between the amount of qualified claims and total settlements will determine the amount that qualified claimants receive. When the Court approves a plan of allocation, it will be posted on the website for this case (www.potashantitrust-classaction.com). 10. What am I giving up to remain in the Class? If the Settlement becomes final, you will give up your right to sue the Settling Defendants and the other Released Parties about the claims being resolved by this Settlement. The specific claims you are giving up against the Settling Defendants and their affiliates are described in the Settlement Agreement. Unless you exclude yourself, you are releasing the claims, whether you submit a claim or not. In addition to the Settling Defendants, the other Released Parties include present and former direct and indirect parents, subsidiaries, divisions, affiliates, or associates (as defined in SEC Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934) of any of the above; the present and former officers, directors, employees, agents, attorneys, insurers, servants, representatives, stockholders, and partners of any of the above entities (with respect to any conduct of any of the above entities); and the predecessors, heirs, executors, administrators, successors, and assigns of any of the above persons or entities. The Settlement Agreement is available at www.potashantitrust-classaction.com. The specific claims you are releasing are described in paragraphs 14 and 15 of the Settlement Agreement. 4
EXCLUDING YOURSELF FROM THE SETTLEMENT If you don t want to be eligible for benefits from the Settlement, and you want to keep the right to sue or to continue to sue the Settling Defendants on your own about the legal issues in this case, then you must take steps to get out of the Settlement. This is called excluding yourself from or opting out of the Class. 11. How do I exclude myself from the Class? To exclude yourself from the Settlement, you must send a letter to the Claims Administrator, Class Counsel, and counsel for the Settling Defendants that includes the following: Your name, address, and telephone number. All trade names or business names and addresses used by you or your business, as well as any parents, subsidiaries, or affiliates that directly purchased potash from any of the Defendants at any time during the period from July 1, 2003 to January 30, 2013. The case name In re Potash Antitrust Litigation (II), MDL Docket No. 1996 (N.D. Ill.). A signed statement that, I/we hereby request that I/we be excluded from the proposed Settlement with the Agrium, Mosaic, and PCS Defendants in In re Potash Antitrust Litigation (II), MDL Docket No. 1996 (N.D. Ill.). You must mail your exclusion request, postmarked no later than May 22, 2013, to: Claims Administrator: POTASH ANTITRUST CASE CLAIMS ADMINISTRATOR c/o KCC Class Action Services P.O. Box 6177 Novato, CA 94948-6177 CLERK OF THE COURT United States District Court for the Northern District of Illinois Everett McKinley Dirksen Courthouse 219 South Dearborn Street Counsel for the Settling Defendants: O MELVENY & MYERS LLP Attn: James M. Pearl 1999 Avenue of the Stars, Ste. 700 Los Angeles, CA 90067 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 MAYER BROWN LLP Attn: Britt M. Miller 71 South Wacker Drive Telephone: (312) 782-0600 Facsimile: (312) 701-7711 JONES DAY Attn: Michael Sennett 77 West Wacker Drive Chicago, IL 60601-1692 Telephone: (312) 782-3939 Facsimile: (312) 782-8585 LOCKRIDGE GRINDAL NAUEN P.L.L.P. Attn: W. Joseph Bruckner 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2179 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 PEARSON, SIMON, WARSHAW & PENNY, LLP Attn: Bruce L. Simon 44 Montgomery Street, Suite 2450 San Francisco, CA 94104 Telephone: (415) 433-9000 Facsimile: (415) 433-9008 5
12. If I don t exclude myself, can I sue the Defendants for the same thing later? No. Unless you exclude yourself, you give up the right to sue the Settling Defendants about the issues in this lawsuit. You give up this right even if you don t submit a claim form and receive the benefits of the Settlement. You must exclude yourself from the Class in order to sue a Settling Defendant separately. (But see Questions 13 and 14.) You will have no right to object to the Settlement if you exclude yourself from the Settlement Class. 13. If I exclude myself from the Settlement, can I still get benefits from the Settlement? No. You will not get any benefits from the Settlement if you exclude yourself from the Settlement. 14. If I exclude myself from the Settlement, can I change my mind later? No. You may not participate in this Settlement if you exclude yourself from this Settlement. 15. Do I have a lawyer in this case? THE LAWYERS REPRESENTING YOU The Court has appointed the firms and lawyers listed below as Co-Lead Class Counsel and Liaison Counsel in this case: LOCKRIDGE GRINDAL NAUEN P.L.L.P. Attn: W. Joseph Bruckner 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2179 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 PEARSON, SIMON, WARSHAW & PENNY, LLP Attn: Bruce L. Simon 44 Montgomery Street, Suite 2450 San Francisco, CA 94104 Telephone: (415) 433-9000 Facsimile: (415) 433-9008 Direct Purchaser Liaison Counsel: SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD Attn: Steven A. Hart 233 South Wacker Drive Sears Tower, Suite 5500 Telephone: (312) 645-7800 Facsimile: (312) 645-7711 Class Counsel will represent you and other members of the Settlement Class. You will not be charged for these lawyers. Class Counsel will be paid by asking the Court for a share of the Settlement proceeds or recovery obtained. (See Question 16.) Class Counsel will also ask the Court to approve incentive awards for the Class Representatives (listed in Question 3) in an amount not to exceed $15,000 each for their time and effort in representing the Class Members in this litigation. If you want to be represented by your own lawyer, you may hire one at your own expense. 16. How will the lawyers be paid? The Court will decide how much Class Counsel will be paid. On or before April 22, 2013, Class Counsel intend to file a fee petition and a request for reimbursement of expenses from the proceeds of this Settlement and the settlement with the Russian/Belarusian Defendants. At such time, Class Counsel will request attorneys fees not to exceed one-third of the Settlement Fund, plus interest, and reimbursement of reasonable litigation expenses. The Court will also decide whether to approve the incentive awards for the Class Representatives described in Question 15. 6
OBJECTING TO THE SETTLEMENT 17. How do I tell the Court that I don t like the Settlement? If you are a member of the Class, and if you do not exclude yourself from the Class (see Question No. 11), you may object to all or part of the Settlement, the proposed plan of allocation, Class Counsel s request for fees and expenses, the proposed incentive awards to the Class Representatives, or all four. To object, you must send a letter that includes the following: Your name, address, and telephone number. A statement saying that you object to the Direct Purchaser Settlement with the Agrium, Mosaic and PCS Defendants in In re Potash Antitrust Litigation (II), MDL Docket No. 1996 (N.D. Ill.), and/or to the proposed plan of allocation, and/or to Class Counsel s request for fees and expenses, and/or to the proposed incentive awards to the Class Representatives. Proof of your membership in the Class, such as a copy of a receipt showing a direct purchase from a Defendant. The reasons you object along with any supporting materials, including any legal support and any evidence to support your objection. Your signature. You must mail your objection, postmarked no later than May 22, 2013, to each of the following addresses: Claims Administrator: POTASH ANTITRUST CASE CLAIMS ADMINISTRATOR c/o KCC Class Action Services P.O. Box 6177 Novato, CA 94948-6177 CLERK OF THE COURT United States District Court for the Northern District of Illinois Everett McKinley Dirksen Courthouse 219 South Dearborn Street Counsel for the Settling Defendants: O MELVENY & MYERS LLP Attn: James M. Pearl 1999 Avenue of the Stars, Ste. 700 Los Angeles, CA 90067 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 MAYER BROWN LLP Attn: Britt M. Miller 71 South Wacker Drive Telephone: (312) 782-0600 Facsimile: (312) 701-7711 LOCKRIDGE GRINDAL NAUEN P.L.L.P. Attn: W. Joseph Bruckner 100 West Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2179 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 PEARSON, SIMON, WARSHAW & PENNY, LLP Attn: Bruce L. Simon 44 Montgomery Street., Suite 2450 San Francisco, CA 94104 Telephone: (415) 433-9000 Facsimile: (415) 433-9008 JONES DAY Attn: Michael Sennett 77 West Wacker Drive Chicago, IL 60601-1692 Telephone: (312) 782-3939 Facsimile: (312)782-8585 7
If by this deadline you do not object to the Settlement, and/or to the proposed plan of allocation, and/or to Class Counsel s request for fees and reimbursement of expenses, and/or to the proposed incentive awards to the Class Representatives, you will have waived your right to object at a later time. 18. What is the difference between objecting and excluding? Objecting is simply telling the Court that you don t like something about the Settlement. You can object to a Settlement only if you remain in the Settlement Class and do not exclude yourself from the Settlement. Excluding yourself from a Settlement is telling the Court that you don t want to be a part of the Settlement or the Settlement Class. If you exclude yourself from a Settlement, you have no right to object to the Settlement because it no longer affects you. THE COURT S FINAL APPROVAL HEARING 19. When and where will the Court decide whether to approve the Settlement? The Court will hold a Final Approval Hearing at 1:30 p.m. on June 12, 2013 at Courtroom 2141 in the Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604. The hearing may be moved to a different date or time without additional notice, so please check www.potashantitrust-classaction.com for any schedule updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and whether to approve the plan of allocation. The Court will also consider Class Counsel s request for attorneys fees and reimbursement of expenses, and the request for incentive awards for the Class Representatives. (See Questions 15 and 16.) If there are objections, the Court will consider them at that time. After the hearing, the Court will decide whether to approve the Settlement. The Court s decision may be appealed. We do not know how long these decisions will take. Please be patient. 20. Do I have to come to the hearing? No. Class Counsel will answer questions the Court may have. But you may come at your own expense if you wish. If you send an objection, you don t have to come to Court to talk about it. As long as you submitted your written objection on time, to the proper addresses, the Court may consider it. You may also pay your own lawyer to attend, but it s not necessary. If you want your own lawyer instead of Class Counsel to speak on your behalf at the Final Approval Hearing, your lawyer must first file a Notice of Appearance with the Court. The Notice of Appearance should include your name, address, telephone number, your lawyer s name, address, telephone number, and signature, and the name and number of the litigation (In re Potash Antitrust Litigation (II), MDL Docket No. 1996 (N.D. Ill.)). In the Notice of Appearance, your lawyer should state that he or she wishes to enter an appearance at the Fairness Hearing. The Notice of Appearance must be filed with the Clerk of the Court for the Northern District of Illinois by May 29, 2013, and served by that date on Counsel at the addresses listed above in Question 17. 21. May I speak at the hearing? Yes. If you timely submitted an objection as outlined in Question 17, you may appear at the hearing, either on your own or through an attorney you hire (see Question 20), to present any evidence or argument that the Court decides is proper and relevant. 22. How do I get more information? ADDITIONAL INFORMATION This notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement at www.potashantitrust-classaction.com. The Settlement Agreement and other documents have been filed in the Court s file on this case. You may also write with questions to Potash Antitrust Case Claims Administrator, c/o KCC Class Action Services, P.O. Box 6177, Novato, CA, 94948-6177, or call 1-866-482-4786. 8