LONDON, ONTARIO -- 11/09/09 --
This notice is to all Canadian citizens or individuals or entities resident, domiciled, or headquartered in Canada, or organized under the laws of Canada or a Canadian province (other than Excluded Persons, as defined below), who acquired securities of CP Ships Pacific ("CP Ships") during the period from January 29, 2003 to and including August 9, 2004 ("Class Period"), and held some or all of those securities on August 9, 2004 ("Class Members").
READ THIS NOTICE CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS.
CLASS ACTIONS COMMENCED IN ONTARIO AND QUEBEC HAVE BEEN SETTLED
In 2005, class actions were commenced in Ontario, British Columbia and Quebec against CP Ships and certain of its current and former officers and directors (the "Defendants"). The Plaintiffs in the actions allege that the Defendants conspired and breached their duty of care to CP Ships shareholders by issuing materially false and/or inaccurate audited consolidated financial statements for the years ended December 31, 2002 and 2003, and interim unaudited consolidated financial statements for the quarter ended March 31, 2004. The Plaintiffs also allege that the individual Defendants engaged in insider trading in contravention of the applicable Ontario, Quebec and B.C. securities legislation.
On August 28, 2008, the Quebec Superior Court authorized as a class proceeding on behalf of a national class. Subsequently, on June 3, 2009, the Ontario Superior Court of Justice certified a class consisting of Canadian citizens and entities not included within the Quebec Class. The progress of the action proceeding in British Columbia has been held in abeyance to the proceedings in Ontario and Quebec.
The parties in the class actions have reached a proposed settlement subject to obtaining the approval of the courts in Ontario and Quebec. The B.C. action will be discontinued as part of the approval process. The Settlement Agreement provides that the Defendants will pay $12.8 million (the "Settlement Amount"). The Settlement Amount is being paid in full and final settlement of all claims, including class counsel fees, disbursements, taxes and administration expenses, in return for releases and, where applicable, a dismissal of the class actions.
The settlement is a compromise of disputed claims and is not an admission of liability, wrongdoing or fault on the part of any of the Defendants, all of whom have denied, and continue to deny, the allegations against them.
SETTLEMENT APPROVAL MOTIONS WILL BE HELD IN ONTARIO AND QUEBEC
The Settlement Agreement must be approved by the courts in Ontario and Quebec before it can be implemented. Class Members may, but are not required to, attend at the settlement approval motions which will be held:
1. In Quebec: on January 18, 2010 at 9:30 a.m. in room 3.21 at the Quebec City Court House, 300 boul. Jean-Lesage, Quebec City, Quebec; and
2. In Ontario: on January 28, 2010 at 10:00 a.m., at the Courthouse, 80 Dundas Street, London, Ontario.
Class Members who do not oppose the proposed settlement do not need to appear at any of the hearings or take any other action at this time to indicate their desire to participate in the proposed settlement.
If the Settlement Agreement is approved, another notice will be published which will provide instructions to Class Members on how to make a claim to receive compensation from the Settlement Amount.
CLASS COUNSEL FEES AND ADMINISTRATIVE EXPENSES
In addition to seeking the courts' approval of the Settlement Agreement, Class Counsel (as identified below) will seek the courts' approval of their legal fees not to exceed 25% of the Settlement Amount, plus disbursements and applicable taxes ("Class Counsel Fees"). Class Counsel will also seek appointment of an Administrator for the Settlement Agreement whose fees, together with any other amounts incurred or payable relating to approval, notification, implementation and administration of the Settlement ("Administration Expenses"), will also be paid from the Settlement Amount. Class Counsel Fees and Administration Expenses will be deducted from the Settlement Amount before it is distributed to Class Members.
TERMS OF THE SETTLEMENT AGREEMENT
The remainder of the Settlement Amount, after deduction of Class Counsel Fees and Administration Expenses (the "Net Settlement Amount") will be distributed to Class Members in accordance with the Distribution Protocol, which is Schedule "A" to the Settlement Agreement.
The amount of each Class Member's actual compensation from the Net Settlement Amount will depend upon: (i) the number and the price of CP Ships securities purchased by the Class Member during the Class Period; (ii) when the Class Member sold the CP Ships securities purchased during the Class Period and the price at which such securities were sold; and (iii) the total number of claims for compensation filed with the Administrator.
"Excluded Persons" are precluded from receiving compensation pursuant to the Settlement Agreement and include:
(a) the Defendants and the current, former and future officers, directors, partners, members, parents, subsidiaries, administrators, affiliates, employees, agents, attorneys, underwriters, insurers, representatives, heirs, successors in interest and assigns of any Defendant;
(b) Raymond Miles, Frank Halliwell and Ian Webber and all members of their families;
(c) all entities over which any of the foregoing persons or entities has or had during the Class Period any legal or de facto control; and
(d) any person or entity who is included in the settlement class in the U.S. Action, and who has filed a claim and received compensation in respect of the settlement of the U.S. Action.
A copy of the Settlement Agreement, including the Distribution Protocol, may be found online at www.classaction.ca.
OBJECTIONS TO THE PROPOSED SETTLEMENT
If you wish to comment on, or make objection to, the Settlement Agreement, you must do so in writing. All objections must be submitted to Class Counsel (at the addresses listed below) postmarked no later than January 8, 2010. Class Counsel will forward all such submissions to the courts.
A written objection should include the following information:
(a) the objector's name, address, telephone number, fax number (where applicable) and email address;
(b) a brief statement outlining the nature of, and reason for, the objection;
(c) documents establishing that the objector purchased securities of CP Ships during the Class Period; and
(d) a statement as to whether the objector intends to appear at the Approval Motion in person or by legal counsel, and, if by legal counsel, the name, address, telephone number, fax number and email address of such legal counsel.
EXCLUDING YOURSELF FROM THE CLASS
If the courts approve the proposed settlement, all Class Members will be bound by the terms of the Settlement Agreement, unless they exclude themselves from the Class ("opt out"). Persons who do not opt out will not be able to bring or maintain any other claim or legal proceeding against the Defendants or any other person released by the Settlement Agreement in relation to the matters alleged in the class actions.
If you do not want to be bound by the Settlement Agreement you must opt out. Please note however, that by opting out you will also be barred from making a claim and receiving compensation from the Settlement Amount.
The Courts have appointed NPT RicePoint Class Action Services ("NPT RicePoint") as the Administrator of this Settlement Agreement. NPT RicePoint will oversee the opt-out processes. If you wish to opt out you must submit a completed Opt-Out Form, and any supporting documentation, to the Administrator, at the following address, postmarked no later than January 8, 2010 (the "Opt-Out Deadline"):
CP Ships Limited Securities Litigation
Claims Administrator
P.O. Box 3355
London, ON N6A 4K3
1-866-432-5534
www.nptricepoint.com
If you are a Quebec Class Member and wish to opt out, in addition to submitting your Opt-Out Form to the Administrator, you must also send a complete copy of your completed Opt-Out Form to the Clerk of the Quebec Court, at the following address: The Quebec Superior Court, Quebec City Court House, 300, boul. Jean-Lesage, Quebec City, Quebec, G1K 8K6 (Court File No. 200-06-000106-081) postmarked no later than the Opt-Out Deadline.
INTERPRETATION
If there is a conflict between the provisions of this notice and the Settlement Agreement, the terms of the Settlement Agreement will prevail.
QUESTIONS ABOUT THE PROPOSED SETTLEMENT SHOULD BE DIRECTED TO CLASS COUNSEL
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Dimitri Lascaris Simon Hebert
Siskinds LLP Siskinds Desmeules s.e.n.c.r.l.
Barristers and Solicitors avocats
680 Waterloo Street Les Promenades du Vieux-Quebec
London, ON N6A 3V8 43, rue De Buade, bureau 320
Tel: 1.800.461.6166 Ext. 2380 Quebec City, QC G1R 4A2
Fax: 519.672-2251 Tel: 418.694.2009
Email: dimitri.lascaris@siskinds.com Fax: 418.694.0281
Email:
simon.hebert@siskindsdesmeules.com
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PUBLICATION OF THIS NOTICE HAS BEEN AUTHORIZED BY THE ONTARIO SUPERIOR COURT OF JUSTICE AND THE QUEBEC SUPERIOR COURT.
Contacts:
Siskinds LLP, Barristers and Solicitors
Dimitri Lascaris
1.800.461.6166 Ext. 2380
519.672-2251 (FAX)
dimitri.lascaris@siskinds.com
