[Translation] CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL No.: 500-06-000540-100 (CLASS ACTION) SUPERIOR COURT UNION DES CONSOMMATEURS Petitioner - and - TANYIA BERGERON v. Designated Person PORTER AIRLINES Inc. doing business in the Province of Quebec under the firm name and style of LES LIGNES AÉRIENNES PORTER PORTER AIRLINES, Respondent TRANSACTION
TABLE OF CONTENTS I. INTRODUCTION Paragraphs 1 to 3 II. DEFINITIONS Paragraph 4 III. PREAMBLE, HISTORY OF THE CLASS ACTION AND NEGOTIATIONS THAT LED UP TO THE TRANSACTION Paragraphs 5 to 18 IV. UNDERTAKING BY PORTER Paragraphs 19 to 24 V. REIMBURSEMENT OF COSTS OF UNION DES CONSOMMATEURS Paragraphs 25 and 26 VI. REIMBURSEMENT OF COSTS OF THE Paragraph 27 VII. MOTION FOR PRELIMINARY ORDERS Paragraphs 28 and 29 VIII. NOTICE OF HEARING TO APPROVE THE TRANSACTION Paragraphs 30 to 33 IX. EXCLUSION AND OBJECTIONS Paragraphs 34 to 38 X. APPROVAL PROCEDURE Paragraphs 39 to 41 XI. XII. XIII. XIV. NOTICE OF JUDGMENT APPROVING THE TRANSACTION MANAGEMENT OF THE TRANSACTION AND CLAIM PROCEDURE RENDERING OF ACCOUNT AND CLOSING JUDGMENT FEES AND DISBURSEMENTS OF COUNSEL Paragraphs 42 to 44 Paragraphs 45 to 49 Paragraphs 50 and 51 Paragraphs 52 to 57 XV. RELEASE AND DISCHARGE Paragraphs 58 to 61 XVI. MISCELLANEOUS PROVISIONS Paragraphs 62 to 69 XVII. SCHEDULES Paragraph 70 2
THE PARTIES AGREE AS FOLLOWS: Transaction class action proceedings in this case as well as the rights and recourses of the members of the Group whose description is amended in accordance with paragraph 4.14 hereof for purposes of the Transaction; I. INTRODUCTION 1. Conditional Transaction: The Transaction is conditional upon its approval by the Court, failing which the Transaction shall be deemed null and void and the Parties and the persons who are members of the Group as described in the Motion for Authorization to Institute a Class Action in this case shall be restored to the positions they were in prior to signing the Transaction, including those who excluded themselves pursuant to the Notice of Hearing to Approve the Transaction; 2. : Notwithstanding paragraph 1, if the Court does not approve the Transaction, the Defendant shall nevertheless assume the costs of the Notice of Hearing to Approve the Transaction, the costs of translation and such costs as the Manager may have incurred up to the date of the final judgment declining to approve the Transaction; 3. Cooperation: The Parties undertake to cooperate with each other in order to have the Transaction approved and become fully effective. To this end, the Parties and their respective counsel undertake to jointly declare before the Court that the Transaction and all of its provisions are fair and reasonable and that it was entered into in the interest of the Parties and the Group Members; II. DEFINITIONS 4. Unless a different meaning is indicated by the context, the following definitions shall apply to the Transaction and its Schedules. Words or phrases importing number shall be construed such that the singular includes the plural and viceversa. Similarly, words or phrases importing the masculine gender shall be construed as including the feminine gender and vice-versa, where appropriate; 4.1 Access Code Code means the numeric or alphanumeric code that will enable Eligible Customers to benefit from the Compensatory Discount when making a reservation, the whole in accordance with the Transaction; 4.2 Claim Réclamation Porter Customers who did not receive a Notice to Members by email in order to obtain the Compensatory Discount; 4.3 Claim Form Formulaire de réclamation available to Eligible Porter Customers who did not receive a Notice to 3
Members by email. A copy of the said form, whose use is optional, is attached hereto (Schedule E); 4.4 Claim Period Délai de Réclamation means the period during which Eligible Porter Customers who did not receive the Notice to Members by email must submit their Claim failing which their right to receive the Compensatory Discount will be forfeited. The said period shall end at midnight on the last day of the sixth (6th) month following the emailing of the Notice of Judgment Approving the Transaction (Schedule B) or such other subsequent date as may be agreed by the Parties; 4.5 Class Action Recours Collectif brought by the Petitioner in this matter in their entirety; 4.6 Closing Judgment Jugement de Clôture Court approving the rendering of account by the Manager; 4.7 Compensatory Discount Rabais Compensatoire of fifteen percent (15%) off the base fare in respect of any air transportation ticket sold by Porter (excluding all taxes, fees and surcharges); 4.8 Court Tribunal District of Montreal, presided by the Honourable Martin Castonguay, J.S.C. or his replacement; 4.9 Effective Date means the date on which the Judgment Approving the Transaction becomes final; 4.10 Eligible Porter Customer Eligible Customer Client admissible de Porter Client admissible air transportation ticket (airplane ticket) between July 1, 2010 and January 31, 2012 inclusive for a Porter flight originating within the Province of Quebec to any destination, irrespective of the purpose of the trip (whether made for personal reasons, for business, commercial or professional purposes or for any other reason), the date of the flight and whether it was a one-way or round-trip ticket; 4.11 Exclusion Form available to Group Members who wish to exclude themselves from the Group and the Transaction. A copy of the said form, whose use is optional, is attached hereto (Schedule C); 4.12 Exclusion Period means a period of thirty (30) days following the date of the emailing of the Notice of Hearing to Approve the Transaction authorized by the Court, during which time the Group Members who so desire may exclude themselves from the Class Action and the Transaction; 4
4.13 Fonds collectifs created pursuant to the Act Respecting the Class Action (RSQ, c. R-2.1); 4.14 Group Groupe members of the group described hereinafter: July 1, 2010 and January 31, 2012 and who paid a higher price than the price advertised by PORTER in its advertising and/or on its website, not including GST, QST, the Ontario Harmonized Sales Tax advance seat selection and the federal and provincial taxes applicable on such advance seat selection charges. The Group does not include merchants who purchased such an air transport 4.15 Group Member Member Membre du Groupe Membre means a person included in the definition of the Group; 4.16 Hearing to Approve the Transaction Audience means the hearing to be presided over by the Court for the purpose of determining whether the motion seeking the approval of the Transaction made pursuant to article 1025 CCP and in accordance with paragraphs 39 and following of the Transaction is to be granted; 4.17 Judgment Approving the Transaction means the decision of the Court approving the Transaction, the fees and Judgment Approving the Transaction; 4.18 Notice of Hearing to Approve the Transaction Avis 30 of the Transaction for the purpose of informing the Group Members of the holding of the Hearing to Approve the Transaction (Schedule A). The said notice shall also contain a hyperlink allowing the Group Members to consult and download the Transaction along with the Exclusion Form (Schedule C) and the Objection Form (Schedule D); 4.19 Notice of Judgment Approving the Transaction Avis de Jugement he notice drawn up in accordance with Schedule B for the purpose of informing Eligible Porter Customers that the Transaction has been approved by the Court and providing them with the access code allowing them to benefit from the Compensatory Discount and explaining to them the reservation procedure and the applicable time limits for benefiting from the said discount in accordance with the Transaction; 5
4.20 Notice to Members Avis aux membres Notice of Hearing to Approve the Transaction (Schedule A), the Notice of Judgment Approving the Transaction (Schedule B) and any other notice that the Court orders to be communicated, published and/or disseminated; 4.21 Objection Form available to Group Members who wish to object to the Transaction. A copy of the said form, whose use is optional, is attached hereto (Schedule D); 4.22 Parties to the Transaction Parties à la Transaction Petitioner, the Designated Person and Porter; 4.23 s Counsel Procureurs de la Requérante Unterberg, Labelle, Lebeau, General Partnership, Attorneys, which firm that the said attorneys do not represent the Members individually; 4.24 Porter Porter PORTER AIRLINES INC. doing business in the Province of Quebec under the firm name and style of LES LIGNES AÉRIENNES PORTER PORTER AIRLINES; 4.25 Procureurs de Porter Canada LLP; 4.26 Preliminary Judgment Jugement préliminaire means the decision of the Court approving the Notice of Hearing to Approve the Transaction, authorizing the bringing of a class action in this case for purposes of the said notice and setting the date of the Hearing to Approve the Transaction; 4.27 Schedules Annexes have attached to the Transaction and that are identified in paragraph 70 hereof, together with any other documents that the Parties may attach h Forms reproduced as schedules provided such amendments comply with the provisions of the Transaction; 4.28 Transaction Transaction Schedules hereto and, if necessary, any other subsequent agreement that 4.29 Transaction Manager Manager Gestionnaire de la Transaction Gestionnaire managing the Transaction and processing the Claims; 6
III. PREAMBLE, HISTORY OF THE CLASS ACTION AND NEGOTIATIONS THAT LED UP TO THE TRANSACTION 5. The following provisions shall form part of the Transaction; 6. WHEREAS on December 1, 2010, the Petitioner served the Respondent with a Motion for Authorization to Institute a Class Action in this case on behalf of the natural persons forming part of the Group hereinafter described: tural person who purchased an air transportation ticket after June 30, 2010 and who paid a higher price than the price advertised by PORTER in its advertising and/or on its website, not including GST, QST, the Ontario Harmonized Sales Tax (HST), advance seat selection and the federal and provincial taxes applicable on such advance seat selection charges. The Group does not include merchants who purchased such an 7. WHEREAS the Petitioner alleges that Porter, in its advertising and on its website, contravened section 224 (c) CPA which came into force in the Province of Quebec on June 30, 2010; 8. WHEREAS since May 1, 2011, Porter has changed the way it advertises the price of its air transportation tickets in print ads and since then advertises prices that include all of the amounts that Porter charges its customers when they purchase such an air transportation ticket; 9. WHEREAS the Parties hereto entered into discussions with a view to settling the Class Action out of court; 10. WHEREAS as a condition precedent to any negotiation, the Petitioner asked for and obtained certain information relating to the potential value of the litigation and the composition of the Group and whereas the Petitioner also asked Porter to modify its website so that the prices include the total of the amounts that the customer will be required to pay on purchasing a transportation ticket, which Porter did in February 2012; 11. WHEREAS Porter having complied with the aforementioned conditions, the negotiations were concluded on February 15, 2012, being the same day as the start of the hearing on the Motion for Authorization; 12. WHEREAS within thirty (30) days from the signing of this Transaction, Porter will that between July 1, 2010 and January 31, 2012: 7
(a) (b) (c) Porter sold 317,934 air transportation tickets in the Province of Quebec; The total amount of the fees, taxes and surcharges that Porter charged to all of its customers who purchased an air transportation ticket in the Province of Quebec over and above the advertised price, to the exclusion of the duties and taxes that, according to the Petitioner, may be excluded from the advertised price in accordance with section 224 in fine CPA and section 91.8 of the Regulation Respecting the Application of the Consumer Protection Act, amounts to approximately $14.6 million; The total number of persons who purchased an air transportation ticket from Porter in the Province of Quebec is 103,279 passengers; 13. WHEREAS the ratio of the number of reservations to the number of persons who made those reservations reveals a rate of more than three (3) flights per person; 14. WHEREAS between July 1, 2010 and January 31, 2012, the total of the taxes, fees and duties which Porter charged its customers over and above the advertised price and which, according to the Petitioner, are not the subject of exemptions provided for in sections 224 (c) of the Act and 91.8 of the Regulation represents on average approximately fifteen percent (15%) of the base price of the air transportation tickets offered and sold by Porter; 15. WHEREAS Porter is able to identify the Eligible Customers and has email addresses enabling it to contact approximately 95% of them; 16. WHEREAS the bringing of the Class Action has not yet been authorized; 17. WHEREAS Porter consents, for the purposes of the Transaction, to the Court authorizing the bringing of the class action in this case on behalf of the natural persons forming part of the Group and whereas Porter consents to the Petitioner acting as 18. WHEREAS this agreement constitutes a transaction within the meaning of articles 2631 and following of the Civil Code of Québec; IV. UNDERTAKING BY PORTER 19. Undertaking by Porter: Porter undertakes to post the prices for its services in the written media and on its website in a manner that is fully transparent so that the price indicated includes all the components of the price required by applicable legislation; 20. Indemnification of all Eligible Porter Customers: Subject to the conditions set forth in the Transaction, Porter undertakes to give all Eligible Customers a Compensatory Discount, which it undertakes to honour. The Compensatory 8
Discount shall avail in lieu of any and all compensation owed to the Group Members under the Transaction; 21. Use of Compensatory Discount and restrictions: Each Eligible Porter Customer will be given an Access Code enabling him or her to benefit from a Compensatory Discount applicable to the purchase of a one-way or round-trip Québec City to any destination served by Porter without any restriction other than seat availability at the time the reservations are made and subject to the loading schedules and itineraries published by Porter at the time the reservations are made; The Compensatory Discounts will only be valid for reservations made no later than on the last day of the sixth (6th) month following the sending of the Notice of Judgment Approving the Transaction; The Compensatory Discount may not be used in conjunction with a promotion or discount already offered by Porter on the chosen flight, including any corporate discounts granted by Porter; 22. Porter undertakes to maintain the hyperlink and the corresponding website for the entire duration of the validity of the Compensatory Discounts, i.e., for six (6) months starting from the date the Notice of Judgment Approving the Transaction is sent; 23. Compensatory Discounts not used by the deadline: The Access Code will become inoperative and unusable at midnight on the last day of the sixth (6th) month following the date of the email transmission of the Notice of Judgment Approving the Transaction. At that time, the Compensatory Discounts that have not been used shall become null and void and shall no longer confer any right upon Eligible Customers; 24. No balance: The Transaction does not provide for the collective recovery of the claims of the Group Members and does not entail any remaining balance; V. REIMBURSEMENT OF COSTS OF UNION DES CONSOMMATEURS 25. Statement of principle: Porter agrees, in accordance with the terms hereinafter set forth, to reimburse and indemnify Union des consommateurs for the time, research and expenses incurred by its personnel in order to commence and pursue the Class Action, conclude the Transaction, follow up on the Transaction and provide information to Group Members who request it up to the time of the Closing Judgment; 26. Method of indemnification of costs and time expended by Union des consommateurs: Considering that the members and personnel of Union des consommateurs and its member associations are sometimes called upon to travel to cities served by Porter on flights originating in Montréal or Québec City, 9
among other things in order to attend meetings, seminars and conferences, Porter undertakes to issue, on request, and honour ten (10) round-trip airplane tickets for flights originating from an airport served by Porter in the Province of Quebec, to such persons as Union des consommateurs may designate, as and when the said tickets are needed. The said tickets shall not have any restrictions attached to them other than seat availability at the time the reservations are made and their availability shall not be limited in time, it being understood that Porter shall be required to issue and honour tickets requested even after the Closing Judgment. However, the reservations shall be subject to the loading schedules and itineraries published by Porter at the time the reservations are made; VI. 27. Considering that Ms. Tanyia Bergeron is a resident of Québec City and that she incurred and will incur traveling expenses to go to Montréal for purposes of the Class Action, Porter undertakes to issue and honour two (2) tickets to Tanyia Bergeron and/or the person whom she designates, the whole on the same conditions as set out in paragraph 26; VII. MOTION FOR PRELIMINARY ORDERS 28. Within a reasonable time after the Transaction is signed, the Petitioner, with Approve the Transaction requesting the Court to issue the Preliminary Judgment for the purpose of: (a) (b) (c) (d) (e) authorizing the bringing of the Class Action on behalf of the Group Members solely for the purpose of publishing the Notice of Hearing to Approve the Transaction (Schedule A); a purposes of publication of the Notice of Hearing to Approve the Transaction (Schedule A); approving the form and content of the Notice of Hearing to Approve the Transaction provided for in paragraph 30 of the Transaction, drawn up substantially in the terms set out in Schedule A; ordering the Notice of Hearing to Approve the Transaction to be communicated according to the methods set out in paragraph 31 of the Transaction, within thirty (30) days of the Preliminary Judgment; setting the expiry date of the Exclusion Period as specified in the Transaction; 10
(f) (g) (h) (i) setting the date for the Hearing to Approve the Transaction as early as possible after the expiry of the Exclusion Period; designating Porter as the Transaction Manager, the whole in accordance obligations in that capacity shall cease in the event that the Court declines to approve the Transaction; designating Porter exclusions and objections from Group Members, the whole in accordance with the Transaction; ordering Porter, in accordance with the Transaction, to assume and pay all costs of communicating the Notice of Hearing to Approve the Transaction; 29. The motion for preliminary orders shall be presented to the Court for adjudication on such date as the Court may set following consultation with the Parties. proceedings to avail in lieu of service with permission to file; VIII. NOTICE OF HEARING TO APPROVE THE TRANSACTION 30. Content of the Notice of Hearing to Approve the Transaction: The Notice of Hearing to Approve the Transaction (Schedule A) shall indicate, among other things: (a) (b) (c) that the Transaction will be submitted to the Court for approval, specifying the date and place for the hearing on the application for approval; the nature of the compensation that the Transaction provides for; the procedure to be followed by Group Members who wish to exclude themselves or to object and the period for doing so; (d) a hyperlink providing direct access to the Exclusion Form (Schedule C) and the Objection Form (Schedule D); (e) that Group Members have the right to be heard before the Court in relation to the Transaction itself; 31. Methods for disseminating and communicating the Notice of Hearing to Approve the Transaction: The Parties undertake to communicate the Notice of Hearing to Approve the Transaction on or before June 21, 2012 in the following manner: (a) Notice of Hearing to Approve the Transaction (Schedule A), in both official 11
languages, by email to each Eligible Porter Customer, at his or her last known email or contact address; (b) by the posting, by Union des consommateurs and at its expense, of the Notice of Hearing to Approve the Transaction (Schedule A), the Objection Form (Schedule D) and the Exclusion Form (Schedule C), in both official languages, on the following website: www.uniondesconsommateurs.ca (c) a press release pertaining to the Hearing to Approve the Transaction, accompanied by the Notice of Hearing to Approve the Transaction (Schedule A), to the principal print and electronic media that publish or disseminate information from Montréal and Quebec City and to CNW Telbec; 32. Discretion of the Court: The Parties acknowledge that the Court may amend the wording and methods for the communication of the Notice of Hearing to Approve the Transaction set out herein, which amendments shall not be grounds for nullity or for termination of the Transaction unless they result in a significant increase in the costs of communication of the said Notice; 33. Affidavit attesting to the communication of the Notice of Hearing to Approve the Transaction: Within fifteen (15) days after the Notice of Hearing to Approve the Transaction (Schedule A) has been emailed to the Group Members, which the said email transmission was made and the number of emails that were sent; IX. EXCLUSION AND OBJECTIONS 34. Right of exclusion: Group Members have the right to exclude themselves from the Group and the Transaction prior to the expiry of the Exclusion Period. Group Members who have not exercised their right of exclusion in the prescribed manner shall be bound by the Transaction if it is approved and by all related judgments or orders of the Court, including the Judgment Approving the Transaction. 35. Exclusion procedure: Group Members who wish to exclude themselves from the Group and the Transaction must do so prior to the expiry of the Exclusion Period, eit address or following the link provided by Porter) or by mailing or faxing a written information: (a) the name and contact information of the Member wishing to exclude himself or herself; 12
(b) a statement that the Member purchased an air transportation ticket from Porter between July 1, 2010 and January 31, 2012 for purposes other ; Group Members who wish to exclude themselves may, but are not obliged to, use the Exclusion Form (Schedule C). 36. Transmission of exclusions: The Manager shall convey the requests for e (3) business days before the date of the Hearing to Approve the Transaction. 37. Effects of exclusion: Group Members who exclude themselves may not benefit from the Transaction and are excluded from the Group; 38. Objection to the Transaction: Members of the Group who so desire may assert their objections to the Transaction before the Court at the Hearing to Approve the Transaction. To that end, they are invited to specify their reasons for objecting in writing, no later than five (5) business days before the date of the Hearing to Approve the Transaction, either by completing the Objection Form (Schedule D) online at the address or following the link provided by Porter or by mailing or (a) (b) (c) the name and contact information of the Member wishing to object; a statement that the Member purchased an air transportation ticket from Porter between July 1, 2010 and January 31, 2012 for purposes other the reasons for objecting; X. APPROVAL PROCEDURE 39. Motion for approval of the Transaction: After the Notice of Hearing to Approve the Transaction has been communicated to the Group Members, the Parties shall make a motion to the Court for approval of the Transaction and shall request the Court to issue a judgment for the purpose of: (a) (b) (c) authorizing the bringing of the Class Action on behalf of the Group; attributing the status of Representative to the Petitioner and the status of Tanyia Bergeron; declaring that the Transaction is just, fair, reasonable and in the interest of the Group Members; 13
(d) (e) (f) (g) approving the Transaction and ordering the Parties and the Group Members to comply with it; confirming to the Transaction Manager its role and status as Manager, the whole in accordance with the Transaction; approving the wording and method of communication of the Notice of Judgment Approving the Transaction; for in the Transaction; 40. : The motion for approval of the Transaction shall be supported, among other things, by described in paragraph 33 of the Transaction; 41. Presentation date of the motion for approval of the Transaction: The Hearing to Approve the Transaction shall take place as soon as possible after the expiry of a period of thirty-five (35) days following the date of the email transmission of the Notice of Hearing to Approve the Transaction (Schedule A); XI. NOTICE OF JUDGMENT APPROVING THE TRANSACTION 42. Content of the Notice of Judgment Approving the Transaction: The purpose of the Notice of Judgment Approving the Transaction is to inform Eligible Customers that the Court has approved the Transaction. The Notice of Judgment Approving the Transaction shall include, among other things, the following information: (a) (b) (c) (d) the Access Code to be used in order to enable Eligible Customers to benefit from the Compensatory Discount; the address of the website on which the Access Code can be used and a hyperlink leading to that website; the terms, conditions and restrictions applicable to the Compensatory Discount; the deadline date for reserving a transportation ticket benefiting from the Compensatory Discount; 14
43. Methods for disseminating and communicating the Notice of Judgment Approving the Transaction: The Notice of Judgment Approving the Transaction (Schedule B) and the methods for communicating it shall be submitted to the Court for approval at the Hearing to Approve the Transaction. The Parties shall communicate the Notice of Judgment Approving the Transaction, within thirty (30) days following the Effective Date, in the following manner: (a) (b) (c) Notice of Judgment Approving the Transaction (Schedule B) by email to each Eligible Porter Customer, at his or her last known email or contact address; by th a press release announcing the Judgment Approving the Transaction to the media and news agencies; by the posting, by Union des consommateurs and at its expense, of a press release on the following website: www.uniondesconsommateurs.ca 44. Discretion of the Court: The Parties acknowledge that the Court may amend the wording and methods for the communication of the Notice of Judgment Approving the Transaction (Schedule B) set out herein, which amendments shall not give rise to the right provided for in paragraph 1 of the Transaction unless they result in a significant increase in the costs of communication of the said Notice; XII. MANAGEMENT OF THE TRANSACTION AND CLAIM PROCEDURE 45. Designation of Manager: Porter shall be responsible for administering and in charge of management and his alternates and a direct line telephone number. All written communications from Members to the Manager shall be conveyed to the Manager at the following address and/or telephone number: Transaction Manager Porter Airlines Inc. Michael Deluce Email: michael.deluce@flyporter.com 46. Claim procedure for Eligible Porter Customers who did not receive the Notice to Members (Schedules A or B) by email: Eligible Porter Customers who did not receive a Notice to Members by email may be indemnified under the Transaction and receive the Notice of Judgment Approving the Transaction provided they submit a Claim to the Manager prior to the expiry of the Claim 15
must contain the following information: (i) (ii) (iii) the name of the passenger to whom Porter issued a transportation ticket between July 1, 2010 and January 31, 2012; the date of the flight(s), the origin and the destination and; a statement that the claimant did not receive the Notice to Members and has not made any other claims under the Transaction; The Manager may verify whether the claimant is an Eligible Customer and if he or she is not, may deny the Claim following notice given to the claimant and the 47. Compensation unclaimed by Eligible Porter Customers: Eligible Porter Customers who did not receive the Notice to Members by email and who did not submit a Claim in accordance with the foregoing conditions prior to the expiry date of the Claim Period shall be deemed to have waived compensation; 48. : on an individual basis for purposes of lodging their Claim with the Manager; 49. Instructions to the Transaction Manager: In the event of doubt over the interpretation or application of the Transaction or if an Eligible Customer has a disagreement with the Manager, the Manager shall initiate a telephone conference call with the Parti advice and instructions and shall apply the instructions agreed to by both appropriate to do so, counsel and/or the Manager may apply to the Court to obtain instructions; XIII. RENDERING OF ACCOUNT AND CLOSING JUDGMENT 50. Rendering of account: Porter shall render an account of its management to the Court within sixty (60) days following the expiry of the Claim Period. To that end, Po attesting to the number of Eligible Porter Customers who benefited from a Compensatory Discount using the Access Code; 51. Motion to obtain the Closing Judgment: Within ninety (90) days following the expiry of the Claim Period, Porter shall make a motion (accompanied by the affidavit referred to in the preceding paragraph) to the Court seeking approval of the said report. Porter shall serve the motion to obtain the Closing Judgment on (5) presentation date; 16
XIV. 52. Amount of fees and judicial and extrajudicial costs: Porter undertakes to pay $175,000 for the fees and judicial and TWO THOUSAND dollars ($2,000) in lieu of the said tickets. The said tickets shall be subject to the conditions set out in paragraph 26; 53. Terms of payment: Porter undertakes to pay the fees and costs owed to (a) (b) a sum of $150,000 plus applicable taxes payable on the date of the designated by them may use the tickets issued by Porter (or claim their $2,000 value) from and after that date; a sum of $25,000 plus applicable taxes, six (6) months after the date of the Judgment Approving the Transaction; 54. : When the motion seeking approval of the Transaction is presented, the Parties shall submit that the amount of the judicial and extrajudicial counsel for purposes of the Class Action and the Transaction; 55. No other fees: In consideration of the payment of counsel shall not claim any other fees from the Group Members and shall not deduct a percentage from the compensation paid to Eligible Porter Customers; 56. Repayment of financial assistance: As soon as possible after they receive the extent of those amounts; 57. Withholding by the : No amount shall be withheld from the Compensatory Discounts, the whole in accordance with the 17
XV. RELEASE AND DISCHARGE 58. On the date of the Closing Judgment and provided that Porter has fulfilled all of its obligations under the Transaction, including in its capacity as Manager, the Petitioner and the Designated Person, in their capacity and on behalf of the Group Members, and their heirs and assigns, shall be deemed to have waived any entitlement to sue and to have granted a full and final release and discharge to Porter from and in respect of any and all present or future, liquidated or unliquidated claims, whether contractual or extracontractual in nature, causes of action, suits or demands of any kind which the Petitioner, the Designated Person and the Group Members may have, either individually or on behalf of the Group, in relation to the facts alleged in the Class Action or arising directly from the said allegations, it being understood that the release, discharge and waiver shall not apply to facts occurring after the date the Transaction is signed; Compensatory Discounts and the transportation tickets reserved in accordance with the Transaction; 59. Nothing in the Transaction shall constitute or be deemed to constitute a waiver by Porter of any defence against any claim by any Group Member who has excluded himself or herself from the Transaction or against any other claim, or of any contestation of the Class Action if the Transaction is not approved by the Court; 60. Nothing in the Transaction shall constitute or be deemed to constitute a waiver by Petitioner, the Designated Person and the Group Members of the right to assert all their rights against Porter if the Transaction is not approved by the Court; 61. The obligations assumed by Porter under the Transaction do not constitute an acknowledgment of liability by the Court issuing the Preliminary Judgment, the Judgment Approving the Transaction and the Closing Judgment do not constitute an acknowledgment of liability by Porter; XVI. MISCELLANEOUS PROVISIONS 62. Language and translation costs: The Transaction and the Schedules have been drawn up in the French language. Porter shall have English language translations prepared, at its expense, of the Transaction, the Notices to Members, the Schedules and any other documents required to give effect to the Transaction, its dissemination and its communication. All translations shall be translations of the documents, even though they were approved by the Parties, be used for purposes of interpreting the Transaction, it being agreed that only the 18
French version of the Transaction and documents reflects the intention of the Parties; 63. The Transaction and its Schedules supersede any other prior written or oral agreement relating to the settlement of the Class Action. The Transaction and its Schedules constitute the complete Transaction between the Parties; 64. The Transaction constitutes a full and final settlement of any dispute relating to the Class Action; 65. The Court shall have sole jurisdiction over the implementation, interpretation, management and application of the Transaction and any dispute relating thereto 66. The Transaction shall be governed by the law of the Province of Quebec. The Transaction constitutes a transaction in accordance with the terms of articles 2631 and following CCQ; 67. In the event of a discrepancy between the Notices to Members and the Transaction, the Transaction shall take precedence; 68. The Parties may sign the Transaction and any related documents in counterparts. In that event, each of such counterparts shall constitute an original. The said counterparts together shall constitute a single Transaction; 69. Any communication from one party to the other shall be given in writing, by mail, fax, messenger or email (if a confirmation of receipt is received by the sender of the email), addressed to its counsel as follows: IF ADDRESSED to the Petitioner: Mtre François Lebeau UNTERBERG. LABELLE, LEBEAU GENERAL PARTNERSHIP 1980 Sherbrooke Street West Suite 700 Montréal, Quebec H3H 1E8 Tel.: (514) 934-0841 Fax: (514) 937-6547 Email: contact@ullnet.com 19
IF ADDRESSED to Porter Airlines Inc.: Mtre Marianne Ignacz NORTON ROSE CANADA LLP Suite 2500 1 Place Ville Marie Montréal, Quebec H3B 1R1 Tel.: (514) 847-4511 Fax: (514) 286-5474 Email: Marianne.Ignacz@nortonrose.com XVII. SCHEDULES 70. The following Schedules are incorporated herein to form part hereof as if they appeared in the main body of the text: Schedule A Notice of Hearing to Approve the Transaction Schedule B Notice of Judgment Approving the Transaction [to come] Schedule C Exclusion Form Schedule D Objection Form Schedule E Claim Form [to come] (SIGNATURES ON FOLLOWING PAGE) 20
IN WITNESS WHEREOF, the Parties, through their duly authorized counsel, have signed this Transaction. Montréal, Montréal, UNTERBERG, LABELLE, LEBEAU GENERAL PARTNERSHIP NORTON ROSE CANADA LLP By: By: Mtre François Lebeau Mtre Marianne Ignacz Montreal, UNION DES CONSOMMATEURS By: Mtre Marcel Boucher 21