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For the purposes of the Agreement, including the Recitals and Schedules hereto:
Action means the action Anne Miller v FSD Pharma Inc., brought in the Court under Court File No. CV-19-614981-00CP.
Administration Expenses means all fees, disbursements, expenses, costs, taxes and any other amounts incurred or payable relating to approval, implementation and administration of the Settlement including the costs of translating, publishing and delivering notices and the fees, disbursements and taxes paid to the Administrator, the Referee, the Transfer Agent (see Sections 7 and 15.3 of the Agreement) and any other expenses approved by the Court which shall all be paid from the Settlement Amount. For greater certainty, Administration Expenses include the Non-Refundable Expenses but do not include Class Counsel Fees.
Administrator means the third-party firm appointed by the Court to administer the Agreement after the Settlement is approved by the Court, and any employees of such firm.
Agreement means this agreement, including the Recitals and Schedules hereto.
Authorized Claim means a properly submitted claim for damages from the Compensation Fund, which has been approved by the Administrator or Referee.
Authorized Claimant means a Class Member who: (i) submitted a properly completed Claim Form with the calculation of their Maximum Entitlement (September Disclosure) and/or Maximum Entitlement (November Disclosure), and all required Supporting Documentation to the Administrator on or before the Claims Bar Deadline; and (ii) is eligible to receive a Distribution from the Compensation Fund.
Category means, separately, the Compensation Fund (September Disclosure), and the Compensation Fund (November Disclosure).
Claim Form means the online form or forms to be approved by the Court, which, when completed and submitted in a timely manner to the Administrator through the online claims portal, enables a Class Member to apply for compensation pursuant to the Agreement and this Plan of Allocation.
Claims Bar Deadline means the date by which each Class Member must file a completed Claim Form and all required supporting documentation with the Administrator which date shall be set out in the Second Notice and which shall be at least one hundred twenty days (120) days after the date on which the Second Notice is last published.
Claimant means a Class Member who submits a properly completed Claim Form with the calculation of their Maximum Entitlement (September Disclosure) and/or Maximum Entitlement (November Disclosure), and all required Supporting Documentation to the Administrator on or before the Claims Bar Deadline.
Class or Class Members means all persons and entities, other than Excluded Persons, wherever they may reside or be domiciled, who during the Class Period acquired Shares in the secondary market on or after September 20, 2018, and held some or all of such Shares as of the close of trading on February 7, 2019.
Class Counsel means Morganti & Co., P.C.
Class Counsel Fees means the fees, disbursements, costs, HST, and other applicable taxes or charges of Class Counsel and a pro rata share of all interest earned on the Settlement Amount to the date of payment, as approved by the Court.
Class Period means the period from September 20, 2018 to February 7, 2019, inclusive.
Compensation Fund means the Settlement Amount less Class Counsel Fees, Administration Expenses and the Honorarium.
Compensation Fund (September Disclosure) means the portion of the Compensation Fund to be distributed to Authorized Claimants in respect of their Maximum Entitlement (September Disclosure).
Compensation Fund (November Disclosure) means the portion of the Compensation Fund to be distributed to Authorized Claimants in respect of their Maximum Entitlement (November Disclosure).
Contributing Parties means FSD and its insurer funding the Settlement.
Court means the Ontario Superior Court of Justice.
CPA means the Class Proceedings Act, 1992, SO 1992, c 6, as amended.
Defendant means FSD.
Distribution means payment to Authorized Claimants in accordance with this Plan of Allocation, the Agreement and any order of the Court.
Distribution List means a list containing the name and address of each Authorized Claimant, the calculation of his/her/its Maximum Entitlement (September Disclosure) and/or Maximum Entitlement (November Disclosure), and the calculation of each Authorized Claimant’s pro rata share of the Compensation Fund (September Disclosure) and/or Compensation Fund (November Disclosure).
Eligible Shares means Shares purchased during the Class Period and held at the close of trading on February 7, 2019.
Effective Date means the date on which the Second Order becomes a final order and the time for any appeals has expired.
Escrow Account means the interest bearing Canadian currency trust account with one of the Canadian Schedule 1 banks or a liquid money market account or equivalent security with a rating equivalent to, or better than, that of an interest bearing account in a Canadian Schedule 1 bank in Ontario, initially under the control of Morganti & Co., P.C., subject to the terms of this Agreement, and then transferred to the control of the Administrator on or after the Effective Date.
Escrow Settlement Amount means the Settlement Amount plus any interest accruing thereon as a result of investment thereof after payment of all Non-Refundable Expenses.
Excluded Persons means:
First Motion means the motions brought before the Court, for orders:
FSD means FSD Pharma, Inc., and, as the context may require, includes its subsidiaries and affiliates.
Honorarium means a one-time payment of $5,000 from the Compensation Fund to the representative plaintiff, Anne Miller, subject to the approval of the Court.
LIFO means the principle of last-in first-out, wherein securities are deemed to be sold in the opposite order that they were purchased (i.e. the last securities purchased are deemed to be the first sold).
Maximum Entitlement (September Disclosure) means an Authorized Claimant’s actual loss on Qualified Shares (September Disclosure), as calculated pursuant to the formula set forth in paragraph 6 of the Plan of Allocation.
Maximum Entitlement (November Disclosure) means an Authorized Claimant’s actual loss on Qualified Shares (November Disclosure), as calculated pursuant to the formula set forth in paragraph 6 of the Plan of Allocation.
Non-Refundable Expenses means certain administration expenses stipulated in section 4.1(1) of the Agreement to be paid from the Settlement Amount.
Opt-Out Party means any person who would otherwise be a Class Member who validly opts-out of the Action.
Opting Out means properly completing and submitting an Opt-Out Form and all necessary supporting documents specified in Section 11.2 of the Agreement before the expiry of the Opt-Out Deadline.
OSA means the Ontario Securities Act, RSO 1990, c. S.5, as amended.
Parties means the Plaintiff and the Defendant.
Plaintiff means Anne Miller.
Plan of Allocation means the plan, as approved by the Court.
Pro Rata Distribution (September Disclosure) means the Distribution per dollar of Total Damages (September Disclosure).
Pro Rata Distribution (November Disclosure) means the Distribution per dollar of Total Damages (November Disclosure).
Qualified Shares means Shares purchased or acquired during the Class Period and held until after the close of trading on February 6, 2019, calculated using LIFO.
Qualified Shares (September Disclosure) means Shares purchased or acquired on or after September 20, 2018, but before November 29, 2018, and held until after the close of trading on February 6, 2019, calculated using LIFO.
Qualified Shares (November Disclosure) means Shares purchased or acquired on or after November 29, 2018 and held until after the close of trading on February 6, 2019, calculated using LIFO.
Referee means Avram Joseph, or such other person or persons appointed by the Court to serve in that capacity.
Reference means the procedure by which a Claimant who disagrees with the Administrator’s decision relating to their eligibility for compensation, the determination of the number of Qualified Shares, or the amount of their Maximum Entitlement (September Disclosure) and/or Maximum Entitlement (November Disclosure), may appeal the Administrator’s decision and have it reviewed by the Referee.
Released Claims (or Released Claim in the singular) means any and all manner of claims, demands, actions, suits, causes of action, whether class, individual or otherwise in nature, whether personal or subrogated, damages whenever and wherever incurred, and rights and liabilities of any nature whatsoever, including interest, costs, expenses, administration expenses, penalties, Class Counsel Fees and lawyers’ fees, whether known or unknown, suspected or unsuspected, in law, under statute, in equity, at common law or civil law, or under any other law, rule or regulation that the Releasors, or any of them, whether directly, indirectly, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have as against the Releasees relating or connected in any way to the purchase, sale, retention, pricing, marketing or distributing of Shares, or to any conduct alleged, or that could have been alleged, in the Action, including, without limitation, any such claims that have been asserted, would have been asserted or could have been asserted in any forum whether in Canada or elsewhere, as a result of or in any connected with the purchase, retention or sale, or lack of purchase or sale, of Shares in the Class Period.
Releasees means the Defendant and its respective past and present affiliates, and subsidiaries, and each of their respective current or former insurers, reinsurers, directors, officers, partners, employees, agents, trustees, servants, parents, consultants, underwriters, lenders, advisors, lawyers, representatives, successors, predecessors, assigns and each of their respective heirs, executors, attorneys, administrators, guardians, estates, trustees, successors and assigns.
Releasors means, jointly and severally, the Plaintiff, the Class Members (excluding those who validly opt-out), including any person having a legal and/or beneficial interest in the Shares purchased or acquired by these Class Members and their respective past and present predecessors, affiliates, subsidiaries, directors, officers, employees, partners, parents, agents, trustees, servants, consultants, underwriters, lenders, shareholders, advisors, representatives, lawyers, heirs, executors, attorneys, administrators, guardians, estate trustees, successors and assigns, as the case may be.
Settlement means the settlement provided for in this Agreement.
Settlement Amount means CAD $5,500,00.00, inclusive of the Administration Expenses, Class Counsel Fees, interest, taxes and any other costs or expenses related to the Action or the Settlement.
Shares means class B common shares of FSD that are or were listed for trading.
Supporting Documentation means true copies of (i) all trade confirmation slips in respect of transactions in the Qualified Shares during the Class Period (and ten days after the end of the Class Period), or (ii) all monthly statements with information concerning transactions in the Qualified Shares during the Class Period (and ten days after the end of the Class Period).
Total Damages (September Disclosure) means the aggregate of all Authorized Claimants’ Maximum Entitlements (September Disclosure).
Total Damages (November Disclosure) means the aggregate of all Authorized Claimants’ Maximum Entitlements (November Disclosure).
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