NOTICE OF CERTIFICATION (AUTHORIZATION) AND LEAVE TO PROCEED WITH STATUTORY MISREPRESENTATION CLAIMS
Read this notice carefully as it may affect your legal rights
TORONTO, Oct. 10, 2013 /CNW/ - This notice is directed to all persons, wherever they may reside or be domiciled, who acquired securities of Agnico Eagle Mines Limited ("Agnico") either:
- over the TSX, Chi-X, Alpha, Omega, TriAct, TMX Select, Pure Trading, Liquidnet and Instinet Canada trading platforms between, and including, March 26, 2010 and October 18, 2011 (the "Class Period"); OR
- in exchange for securities of Comaplex Minerals Corp. by way of a plan of arrangement pursuant to the Alberta Business Corporations Act completed on or around July 6, 2010,
and continued to hold some or all of those securities on one or both of July 28, 2011 and October 19, 2011 (the "Class Members"), except for certain persons associated with the Defendants, as described below.
CERTIFICATION ORDER - ONTARIO
On April 17, 2013, Justice Belobaba of the Ontario Superior Court of Justice certified the action in Court File No. CV-12-448410-00CP titled:
AFA Livförsäkringsaktiebolag, et al
Agnico-Eagle Mines Limited, et al
(the "Ontario Action") as a class proceeding, and appointed AFA Livförsäkringsaktiebolag, AFA Sjukförsäkringsaktiebolag, AFA Trygghetsförsäkringsaktiebolag, Kollektivavtalsstiftelsen Trygghetsfonden TSL (collectively referred to as AFA Insurance), and William Leslie as its Representative Plaintiffs.
The Ontario Action has been certified on behalf of a class (the "Ontario Class") composed of the Class Members (described above), but excluding:
|(1)||Agnico, Sean Boyd, Eberhard Scherkus and Ammar Al-Joundi (the "Defendants"), and Agnico's past and present subsidiaries, affiliates, officers, directors, senior employees, partners, legal representatives, heirs, predecessors, successors and assigns, and any member of the family of a Defendant (the "Excluded Persons"), and|
|(2)||those persons who are members of the class authorized in the Québec Action, as described in the next paragraph.|
AUTHORIZATION ORDER - QUÉBEC
On October 1, 2013, Justice Dufresne of the Québec Superior Court authorized the bringing of a class action in the matter of:
Delaire v Agnico-Eagle Mines Limited, et al
Court File No. 200-06-000142-128 (the "Québec Action") and ascribed the status of representative to Jean-Paul Delaire for all persons forming part of the group (the "Québec Class") composed of those Class Members (described above) who were resident or domiciled in the Province of Québec at the time they purchased or acquired Agnico securities and who are not precluded from participating in a class action by virtue of Article 999 of the Québec Code of Civil Procedure, RSQ, c C-25, but excluding the Excluded Persons.
Article 999 of the Code of Civil Procedure provides that a legal person established for a private interest, partnership or association can only be a Class Member in the Québec Action if, at all times during the period from March 28, 2011 to March 27, 2012, not more than 50 persons bound to it by contract of employment were under its direction or control AND if it is dealing at arm's-length with the representative plaintiff.
Persons excluded from the Québec Class by virtue of Article 999 are included in the Ontario Class.
- WHAT DOES THIS MEAN?
Certification and Authorization means that the courts have permitted the Ontario Action and the Québec Action to proceed to trial as class actions. Certification and authorization are procedural matters that define the form of the litigation, allowing it to be pursued on behalf of a defined group of people. The substance of the litigation (the allegations made against the Defendants) has not been assessed by the courts. The Defendants deny that the allegations will be proven at trial.
THE NATURE OF THE CLAIMS PURSUED
The claims being pursued in these class actions are claims for damages or restitution for losses suffered as a result of Agnico's alleged failure to disclose ongoing operational issues at its Goldex mine until those issues resulted in the closure of the Goldex mine in October of 2011. The Defendants dispute all of the claims asserted, and no Court has yet ruled on the merits of the claims.
The claims of Class Members who acquired their Agnico shares through Agnico's acquisition of Comaplex Minerals Corp. in July of 2010 are being pursued in unjust enrichment, which, if successful, will require Agnico to make restitution to those Class Members to the extent that the value of Agnico's shares issued in exchange for the Comaplex securities acquired by Agnico was inflated as a result of the alleged misrepresentations.
The claims of Class Members who acquired their Agnico securities on the secondary market are being pursued through the secondary market liability provisions of the Ontario and Québec Securities Acts. These provisions permit a person who acquires a security after the making of a misrepresentation but prior to the correction of that misrepresentation to recover damages without proof of reliance, subject to certain defences which may be asserted in this case.
The claims are subject to liability limits that limit the amount of compensation that can be recovered from defendants in all actions asserting similar claims. Although the total amount of damages suffered by Class Members is not known at this stage, it is possible that total potential damages in this case may exceed the statutory liability limits.
If you wish to pursue other claims against the Defendants relating to the matters at issue in these class actions, you should immediately seek independent legal advice. If you do not exclude yourself from participating in these class actions, all of your claims relating to the subject matter of this litigation will be determined by the result obtained in the class actions, whether by settlement or judgment.
To bring your own claims against the Defendants you must "opt-out" of these proceedings. Please see "Additional Information" for directions to obtain further detail on the scope of these class actions and the claims that will be advanced against the Defendants.
YOU DO NOT NEED TO DO ANYTHING TO REMAIN IN THE CLASS
Class Members who wish to participate in the Ontario Action or the Québec Action are automatically included in the Class. You do not need to take further action at this time.
YOU MUST OPT OUT IF YOU DO NOT WANT TO BE BOUND BY THE OUTCOME OF THE CLASS ACTIONS
Class Members who wish to pursue their own actions or do not want to be bound by the outcome of the class actions must take action by opting-out of the proceedings. Persons who opt out of the class actions will not be entitled to assert individual claims in the class actions or to participate in the distribution of any settlement or judgment obtained in the class actions.
If you wish to opt out, you must complete a signed letter stating that you elect to opt out of the class in the Agnico class actions. You are also required to provide the additional information, described below.
A valid opt out request must include all of the following information:
|(i)||the number of Agnico securities you held as of March 26, 2010;|
|(ii)||the number of Agnico securities that you purchased and sold during the Class Period;|
|(iii)||the date(s) on which you purchased and sold these securities;|
|(iv)||the price at which you purchased and sold these securities; AND|
|(v)||your name, address, telephone number and signature. If you are submitting an opt out request on behalf of a corporation or other entity, you must state your position and authority to bind the corporation or entity.|
Your opt out request must be sent by fax or mail to:
NPT RicePoint Class Action Services Inc.
Re: Agnico Eagle Mines Limited Securities Litigation
P.O. Box 3355 London, ON N6A 4K3 Canada
Fax: (519) 432-6544
In order for your opt out request to be valid, it must be postmarked or received no later than January 8, 2014 and it must contain ALL the requested information.
Each Class Member who does not opt out of the class actions, will be bound by the terms of any judgment or settlement, whether favourable or not, and will not be allowed to prosecute an independent action against any of the Defendants regarding any of the factual matters raised in the class actions. Persons who do not opt out may be entitled to share in the amount of any award or settlement recovered. In order to determine if you are entitled to share in the award or settlement and the amount, if any, of your share, it may be necessary to conduct an individual determination. You will be informed of the implications of, and will have the opportunity to decide if you wish to proceed with, your individual determination in advance.
A minor or a mentally incapable Class Member cannot be opted out of the Class without permission of the court. The Children's Lawyer and/or the Public Guardian and Trustee, as applicable, must receive notice of this request.
A request to opt out of one of the class actions that complies with the conditions set out in this notice will be an effective request to opt out of both actions.
Any member of the Québec Class who has brought a suit which the final judgment on the class action would decide, is deemed to have requested his exclusion from the group if he does not, before the expiry of the delay for exclusion, discontinue such suit.
A class member other than the representative plaintiff or an intervener cannot be ordered to pay the opposing party's costs of the class action.
The Courts may permit or require a Class Member to participate in the class actions if such participation is useful to the class or if there are issues which require individual resolution. A participating Class Member may be bound to submit to examination for discovery at the request of the Defendants. A Class Member who does not intervene in the class action can only be required to submit to an examination on discovery if the Court considers it useful.
CLASS COUNSEL AND LEGAL FEES
The class in the Ontario Action is represented by Siskinds LLP. The class in the Québec Action is represented by Siskinds, Desmeules, Avocats. Siskinds LLP and Siskinds, Desmeules, Avocats are Class Counsel.
Class Counsel is acting on a contingency basis, meaning that Class Counsel is not being paid its fees or disbursements as the matter proceeds and will only be paid their legal fees, disbursements and applicable taxes in the event that a recovery is obtained in the actions. In the event a recovery is obtained, Class Counsel's fees and expenses will be paid out of any settlement or judgment obtained.
If a recovery is obtained, Class Counsel will make a motion to the courts to have their fees and disbursements approved.
Other than as set out above, Class Members will not be asked to pay Class Counsel's fees, disbursements or related taxes.
This notice was approved by the Ontario Superior Court of Justice and the Québec Superior Court. The court offices cannot answer any questions about the matters in this notice. The Statements of Claim, Orders of the courts and other information are available on Class Counsel's website: www.classaction.ca.
NOTICE TO BROKERAGE FIRMS
Please deliver this notice, no later than October 31, 2013 by email to your clients who purchased Agnico securities during the Class Period and for whom you have valid email addresses.
If you have clients who purchased Agnico securities during the Class Period for whom you do not have valid email addresses, please:
- contact NPT RicePoint Class Action Services Inc. to obtain hard copies of this notice for the purpose of mailing the notice to those clients; OR
- provide NPT RicePoint Class Action Services Inc. with the mailing addresses of those clients and NPT RicePoint will mail the notices directly to those clients.
Brokerage firms may cumulatively request up to $15,000 reimbursement for expenses incurred relating to the distribution of this notice to client Class Members. If the cumulative amount requested exceeds $15,000, each individual brokerage firm's request shall be reduced on a pro rata basis. Brokerage firms must submit an invoice to NPT RicePoint Class Action Services Inc. by January 8, 2014 to be eligible for reimbursement.
Publication of this notice was authorized by the Ontario Superior Court of Justice and the Québec Superior Court
SOURCE: Siskinds LLP
For further information:
Questions relating to the Ontario Action should be directed by email or telephone to Siskinds LLP:
680 Waterloo Street
London, ON N6A 3V8
Tel: 1.800.461.6166 ext. 2380 (toll free)
Questions relating to the Québec Action should be directed by email or telephone to Siskinds, Desmeules, Avocats:
Siskinds, Desmeules, Avocats
480 St-Laurent Blvd., Suite 501
Montréal, QC H2Y 3Y7