Pro-Sys Consultants Ltd.

Transcription

1 SUPREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY JUN No. L Vancouver Registry In the Supreme Court of British Columbia Between: and: Pro-Sys Consultants Ltd. Infineon Technologies AG, Infineon Technologies North America Corp., Hynix Semiconductor Inc., Hynix Semiconductor America Inc., Hynix Semiconductor Manufacturing America, Inc., Samsung Electronics Co., Ltd. Samsung Semiconductor, Inc., Samsung Electronics America, Inc., Samsung Electronics Canada Inc., Micron Technology, Inc. and Micron Semiconductor Products, Inc. doing business as Crucial Technologies, Elpida Memory, Inc., Elpida Memory (USA) Inc., Nanya Technology Corporation, Nanya Technology Corporation USA, NEC Corporation, NEC Corporation of America, NEC Canada Inc., Renesas Electronics Corporation fka NEC Electronics Corporation, Renesas Electronics America Inc. fka NEC Electronics America, Inc., Hitachi, Ltd., Hitachi America, Ltd., Hitachi Electronic Devices (USA), Inc., Hitachi Power Systems Canada Ltd. and Renesas Electronics Canada Ltd. Plaintiff Defendants BROUGHT UNDER THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996, c. 50 ORDER MADE AFTER APPLICATION APPROVAL OF HITACHI SETTLEMENT AGREEMENT BEFORE THE HONOURABLE MR. JUSTICE MASUHARA 24/Jan/2013 { / }

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13 CANADIAN DRAM CLASS ACTION NATIONAL SETTLEMENT AGREEMENT Made as of December 18, 2012 PRO-SYS CONSULTANTS LTD., KHALID EIDOO, CYGNUS ELECTRONICS CORPORATION, and OPTION CONSOMMATEURS (the Plaintiffs ) and HITACHI, LTD., HITACHI AMERICA, LTD. (misnamed as HITACHI AMERICA), HITACHI ELECTRONIC DEVICES (USA), INC. (misnamed as HITACHI ELECTRONIC DEVICES (USA)), HITACHI POWER SYSTEMS CANADA LTD. (previously Hitachi Canada Ltd.) and RENESAS ELECTRONICS CANADA LTD. (the Settling Defendants )

14 CANADIAN DRAM CLASS ACTION NATIONAL SETTLEMENT AGREEMENT TABLE OF CONTENTS ARTICLE I DEFINITIONS Definitions... 3 ARTICLE II SETTLEMENT APPROVAL Best Efforts Motions Approving Notice and Seeking Certification or Authorization Motions for Approval of the Settlement Agreement Pre-Motion Confidentiality of Settlement Agreement ARTICLE III SETTLEMENT BENEFITS Payment of Settlement Amount Taxes and Interest Cooperation ARTICLE IV OPT OUT DEADLINE AND DISTRIBUTION OF THE SETTLEMENT AMOUNT AND ACCRUED INTEREST Opt Out Deadline Distribution Protocol No Responsibility for Administration or Fees Fonds d'aide aux recours collectifs ARTICLE V TERMINATION OF SETTLEMENT AGREEMENT Right of Termination If Settlement Agreement is Terminated or Set Aside Allocation of Monies in the Account Following Termination Survival of Provisions After Termination ARTICLE VI RELEASES AND DISMISSALS Release of Releasees Covenant Not To Sue No Further Claims Dismissal of the Proceedings Dismissal of Other Actions ARTICLE VII BAR ORDER AND OTHER CLAIMS Ontario and BC Bar Orders Quebec Waiver and Renunciation of Solidarity Order Claims Against Other Entities Reserved ARTICLE VIII EFFECT OF SETTLEMENT No Admission of Liability Agreement Not Evidence Davis: { / }ii

15 8.3 No Further Litigation ARTICLE IX NOTICE TO SETTLEMENT CLASSES Notice Required Form of Notices Method of Disseminating Notices Information and Assistance Settling Defendants or Defence Counsel Not Responsible for the Costs of Notice ARTICLE X ADMINISTRATION AND IMPLEMENTATION Mechanics of Administration ARTICLE XI CLASS COUNSEL FEES AND ADMINISTRATION EXPENSES Counsel Fees Administration Expenses ARTICLE XII MISCELLANEOUS Motions for Directions Releasees Have No Liability for Administration Headings, etc Computation of Time Ongoing Jurisdiction Governing Law Entire Agreement Amendments Binding Effect Counterparts Negotiated Agreement Language Transaction Recitals Schedules Acknowledgements Authorized Signatures Notice Date of Execution Davis: { / }iii

16 DRAM CLASS ACTION NATIONAL SETTLEMENT AGREEMENT RECITALS A. WHEREAS Pro-Sys Consultants Ltd. commenced the BC Proceeding as a proposed class proceeding in or about 2004, and subsequently filed on or about December 19, 2006 a Consolidated Statement of Claim; B. WHEREAS the BC Plaintiff delivered an Application in or around December 2010, indicating an intention to seek leave to add the Settling Defendants, among others, as party defendants to the BC Proceeding; C. WHEREAS Khalid Eidoo commenced the Ontario Proceeding as a proposed class proceeding on or about February 3, 2005 to which Cygnus Electronics Corporation was subsequently added as a plaintiff, bearing Court File No. 05-CV-4340, which action did not name the Settling Defendants; D. WHEREAS the Ontario Plaintiffs commenced the Ontario Additional Proceeding as a proposed class proceeding on or about August 20, 2010, which action did name the Settling Defendants as defendants, among others; E. WHEREAS the Quebec Plaintiff commenced the Quebec Proceeding as a proposed class proceeding on or about October 5, 2004, which action does not yet name the Settling Defendants as defendants; F. WHEREAS the BC Proceeding, the Ontario Initial Proceeding, the Ontario Additional Proceeding and the Quebec Proceeding all advanced claims alleging that the defendants in the proceedings participated in an unlawful conspiracy to fix, increase and maintain the price and to allocate markets or to set specific volumes for the sale of dynamic random access memory products manufactured and distributed by the defendants in Canada, contrary to Part VI of the Competition Act, the common law and the civil law; G. WHEREAS the BC Proceeding was certified as a class proceeding under the BC Class Proceedings Act pursuant to the certification order issued by the British Columbia Court of Appeal on November 12, 2009; H. WHEREAS the Quebec Proceeding was authorized as a class proceeding pursuant to the authorization order issued by the Court of Appeal of Québec on November 16, 2011, which order has been appealed to the Supreme Court of Canada and the decision on such appeal is pending; I. WHEREAS the Elpida Defendants have settled the Proceedings; J. WHEREAS the Ontario Initial Proceeding was certified on March 28, 2012, but only for the purposes of obtaining court approval of the Elpida Settlement Agreement, which settlement agreement was approved by the BC Supreme Court on June 18, 2012, by the Ontario Superior Court on June 27, 2012, and by the Quebec Superior Court on June 27, 2012;

17 - 2 - K. WHEREAS the Ontario Additional Proceeding has not yet been certified; L. WHEREAS the Opt Out Deadline for the Proceedings expired on June 2, 2012 subject to any orders of the Courts to the contrary; M. WHEREAS despite their belief that the allegations made by the Plaintiffs in the Proceedings are unfounded and they have good and reasonable defences, the Settling Defendants have agreed to enter into this Settlement Agreement in order to achieve a final and nation-wide resolution of all claims asserted or which could have been asserted against them, individually or collectively, by the Plaintiffs in the Proceedings, and to avoid further expense, inconvenience and the distraction of burdensome and protracted litigation; N. WHEREAS the Settling Defendants do not admit, through the execution of this Settlement Agreement, or otherwise, any unlawful conduct, liability, wrongdoing or blame of any kind on their behalf or on behalf of their corporate successors or predecessors, either as alleged or at all; O. WHEREAS the Settling Defendants do not hereby attorn to the jurisdiction of the Courts or any other court or tribunal in respect of any civil, criminal or administrative process except to the extent expressly provided in this Settlement Agreement with respect to the Proceedings; P. WHEREAS the Parties now consent to having the Settling Defendants added as defendants in the BC Proceeding and the Quebec Proceeding, solely for the purpose of implementing this Settlement Agreement across Canada; Q. WHEREAS the Plaintiffs and Class Counsel have reviewed and fully understand the terms of this Settlement Agreement and, based on their analyses of the facts and law applicable to the Plaintiffs claims, and having regard to the burdens and expense in prosecuting the Proceedings, including the risks and uncertainties associated with trials and appeals, the Plaintiffs and Class Counsel have concluded that this Settlement Agreement is fair, reasonable and in the best interests of the Plaintiffs and the classes they seek to represent; R. WHEREAS the Plaintiffs assert that they are adequate class representatives for the Settlement Classes and will seek to be appointed representative plaintiffs in their respective Proceedings; S. WHEREAS the Plaintiffs, Class Counsel, and the Settling Defendants agree that neither this Settlement Agreement nor any statement made in the negotiation thereof shall be deemed or construed to be an admission by or evidence against the Settling Defendants or evidence of the truth of any of the Plaintiffs allegations against the Settling Defendants, which the Settling Defendants expressly deny; T. WHEREAS the Parties therefore wish to, and hereby do, finally resolve on a national basis, without admission of liability, all of the Proceedings, and all of the claims, allegations or demands that were, or could have been, advanced therein, as against the Settling Defendants;

18 - 3 - NOW THEREFORE, in consideration of the covenants, agreements and releases set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed by the Parties that the Proceedings be settled and dismissed on the merits with prejudice as against the Settling Defendants, without costs to the Plaintiffs (other than contingency fees which may be awarded out of the Settlement Amount to Class Counsel), the classes they seek to represent, or the Settling Defendants, subject to the approval of the Courts, on the following terms and conditions: 1.1 Definitions ARTICLE I DEFINITIONS (a) (b) (c) (d) (e) (f) (g) (h) (i) Account means an interest bearing trust account at a Canadian Schedule 1 bank under the control of BC Class Counsel or the Claims Administrator, as the case may be, for the benefit of Settlement Class Members. Administration Expenses means all fees, disbursements, expenses, costs, taxes and any other amounts incurred or payable by the Plaintiffs, Class Counsel or otherwise for the approval, implementation and operation of this Settlement Agreement, including the costs of notices and claims administration but excluding Class Counsel Fees. BC Class Counsel means Camp Fiorante Matthews Mogerman. BC Court means the Supreme Court of British Columbia. BC First Order or BC First Orders means the order or orders issued by the BC Court to (1) add the Settling Defendants as defendants in the BC Proceeding for settlement purposes only; (2) certify the BC Proceeding as a class proceeding against the Settling Defendants for settlement purposes only; (3) approve the Notice of Certification and Settlement Hearings; and (4) approve the appointment of the Claims Administrator for the purpose of this Settlement Agreement. BC Second Order or BC Second Orders means the order or orders issued by the BC Court to approve and implement this Settlement Agreement. BC Plaintiff means Pro-Sys Consultants Ltd. BC Proceeding means the proceeding commenced by Pro-Sys Consultants in the form of a Consolidated Statement of Claim filed in the British Columbia Supreme Court (Vancouver Registry), Court File No. L043141, filed on December 19, BC Settlement Class means all persons resident in BC at the time of purchase and/or at the time of notice who purchased DRAM Products during the Settlement Class Period, except Excluded Persons.

19 - 4 - (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) Claims Administrator means the person appointed by the Courts to administer this Settlement Agreement and the Distribution Protocol as approved by the Courts, and any employees of such firm. Class Counsel means BC Class Counsel, Ontario Class Counsel and Quebec Class Counsel. Class Counsel Fees include the fees, disbursements, costs, interest, GST and other applicable taxes or charges of Class Counsel in the prosecution of the Proceedings. Common Issue in each Proceeding means: Did the Settling Defendants, or any of them, conspire to harm the Settlement Class Members during the Settlement Class Period? If so, what damages, if any, are payable by the Settling Defendants, or any of them, to the Settlement Class Members? Confidential Opt Out Threshold means a threshold in respect of Opt Outs as agreed upon by the Plaintiffs and the Settling Defendants in a separate document delivered to the Courts under seal and kept confidential by the Parties and the Courts. Courts means the BC Court, the Ontario Court and the Quebec Court. Defence Counsel means Davis LLP. Defendants include the individuals and entities named as defendants in the Proceedings as set out in Schedule A and any other individuals or entities that may be added as defendants in the Proceedings in the future. Distribution Protocol means the plan for distributing the Settlement Amount and accrued interest, in whole or in part, as established by Class Counsel and approved by the Courts. DRAM means dynamic random access memory devices and components, including without limitation, all types of EDO DRAM, fast-page mode (FPM) DRAM, synchronous dynamic random access memory ( SDRAM ), Rambus dynamic random access memory ( RDRAM ), asynchronous dynamic random access memory ( ASYNC ), double data rate dynamic random access memory ( DDR ), including modules containing DRAM, EDO DRAM, FPM DRAM, RDRAM, SDRAM, ASYNC and/or DDR. For greater certainty, DRAM does not include SRAM. DRAM Products means DRAM and products that contain DRAM. Effective Date means the date when Final Orders have been received from all Courts approving this Settlement Agreement.

20 - 5 - (v) (w) (x) (y) (z) (aa) (bb) Elpida Defendants means Elpida Memory, Inc. and Elpida Memory (USA) Inc. Elpida Settlement Agreement means the Canadian DRAM Class Actions National Settlement Agreement made as of November 15, 2011 between Pro-Sys Consultants Ltd., Khalid Eidoo, Cygnus Electronics Corporation and Option Consommateurs, and the Elpida Defendants, which has been approved by the Courts. Excluded Person means each Defendant, the directors and officers of each Defendant, the subsidiaries or affiliates of each Defendant, the entities in which each Defendant or any of that Defendant s subsidiaries or affiliates have a controlling interest and the legal representatives, heirs, successors and assigns of each of the foregoing, any judge of a Court who has heard or will hear any motion or application in respect of the Proceedings and his or her immediate family, and any person who has fully and finally settled or extinguished their actual or potential claims as against the Defendants in respect of DRAM Products as part of the US Settlement or otherwise in respect of the US Proceedings, or as a result of the Elpida Settlement Agreement. Final Order means a final judgment entered by a Court in respect of the certification or authorization of a Proceeding as a class proceeding for the purposes of this Settlement Agreement, and/or the approval of this Settlement Agreement and implementing it in accordance with its terms, once the time to appeal such order has expired without any appeal being taken, if an appeal lies, or once there has been affirmation of the order or judgment upon a final disposition of all appeals. Hitachi means Hitachi, Ltd., Hitachi America, Ltd. (misnamed in the Proceedings as Hitachi America ), Hitachi Electronic Devices (USA), Inc. (misnamed in the Proceedings as Hitachi Electronic Devices (USA) ) and Hitachi Power Systems Canada Ltd. (previously known as Hitachi Canada Ltd.). Non-Settling Defendant means a Defendant that is not a Settling Defendant under this Settlement Agreement and not an Elpida Defendant as defined in the Elpida Settlement Agreement. Notice of Certification and Settlement Hearings means the form or forms of notice as approved by the Court to inform the Settlement Class of (1) the certification or authorization of the Proceedings against the Settling Defendants for settlement purposes; (2) the dates and locations of the hearing(s) to approve this Settlement Agreement; and (3) the principal elements of this Settlement Agreement. For greater certainty, the Notice of Certification and Settlement Hearings shall not provide the Plaintiffs and the Settlement Class Members as defined in the Elpida Settlement Agreement which has been approved by the Courts with a further right to opt-out of the BC Proceeding, the Quebec Proceeding or the Ontario Initial Proceeding.

21 - 6 - (cc) (dd) (ee) (ff) (gg) (hh) (ii) (jj) (kk) (ll) Notice of Settlement Approval and Claims Procedures means the form or forms of notice as approved by the Courts to inform the Settlement Class Members of (1) the approval of this Settlement Agreement; and (2) the process by which the Settlement Class Members may apply to obtain compensation from the Settlement Amount. Ontario Additional Proceeding means the proceeding commenced by Khalid Eidoo and Cygnus Electronics Corporation in the Ontario Superior Court (Windsor Registry) on or about August 20, 2010, bearing Court File No. 10-CV Ontario Class Counsel means Sutts, Strosberg LLP and Harrison Pensa LLP. Ontario Court means the Ontario Superior Court of Justice. Ontario First Order or Ontario First Orders means the order or orders issued by the Ontario Court to (1) certify the Ontario Additional Proceeding against the Settling Defendants for settlement purposes only; (2) approve the Notice of Certification and Settlement Hearings; and (3) approve the appointment of the Claims Administrator for this Settlement Agreement. Ontario Initial Proceeding means the proceeding commenced by Khalid Eidoo commenced in the Ontario Superior Court (Windsor Registry) on or about February 3, 2005, to which Cygnus Electronics Corporation was subsequently added as a plaintiff, bearing Court File No. 05-CV Ontario Second Order or Ontario Second Orders means the order or orders issued by the Ontario Court to approve and implement this Settlement Agreement. Ontario Plaintiffs means Khalid Eidoo and Cygnus Electronics Corporation. Ontario Proceedings means the Ontario Initial Proceeding and the Ontario Additional Proceeding. Ontario Settlement Class means (i) all persons resident in Canada at the time of purchase and/or at the time of notice who purchased DRAM Products during the Settlement Class Period, except Excluded Persons and persons who are included in the BC Settlement Class and the Quebec Settlement Class; and (ii) all persons resident in the US at the time of purchase and/or at the time of notice who purchased DRAM Products during the Settlement Class Period to the extent that such persons have actual or potential claims as against the Defendants in respect of DRAM Products that have not been wholly or completely settled or extinguished in the US Settlement or otherwise in respect of the US Proceedings. (mm) Opt Out means a member of a Settlement Class who has submitted a valid written election to opt out of the Proceedings in accordance with orders of the Courts in the Proceedings.

22 - 7 - (nn) (oo) (pp) (qq) (rr) (ss) (tt) (uu) (vv) Opt Out Deadline means June 2, 2012 or any other date that might be ordered by the Court pursuant to section 4.1. Other Actions means actions or proceedings against all or any of the Settling Defendants, other than the Proceedings, to the extent that such actions or proceedings relate to Released Claims commenced by a Settlement Class Member either before or after the Effective Date. Parties means the Plaintiffs, Settlement Class Members, and Settling Defendants. Plaintiffs means Pro-Sys Consultants Ltd., Khalid Eidoo, Cygnus Electronics Corporation, and Option Consommateurs. Proceedings means the BC Proceeding, the Ontario Proceedings, and the Quebec Proceeding. Proportionate Liability means that proportion of any judgment that, had they not settled, a court or other arbiter would have apportioned to the Releasees, whether pursuant to the pro rata, proportionate fault, pro tanto, or another method. Quebec Class Counsel means Belleau Lapointe. Quebec Court means the Superior Court of Quebec. Quebec First Order or Quebec First Orders means the order or orders issued by the Quebec Court to (1) add the Settling Defendants as defendants in the Quebec Proceeding for settlement purposes only; (2) authorize the Quebec Proceeding as a class proceeding against the Settling Defendants for settlement purposes only; (3) approve the Notice of Certification and Settlement Hearings; and (4) approve the appointment of the Claims Administrator for this Settlement Agreement. (ww) Quebec Second Order or Quebec Second Orders means the order or orders issued by the Quebec Court to approve and implement this Settlement Agreement. (xx) Quebec Plaintiff means Option Consommateurs. (yy) Quebec Proceeding means the proceeding commenced by Option Consommateurs in the form of a motion for authorization to institute a class proceeding in the Quebec Court (District of Quebec) with Action No , filed on October 5, (zz) Quebec Settlement Class means all persons resident in Quebec at the time of purchase and/or at the time of notice who purchased DRAM Products during the Settlement Class Period, except Excluded Persons and any legal person established for a private interest, partnership or association which at any time between October 5, 2003 and October 5, 2004 had under its direction or control

23 - 8 - more than 50 persons bound to it by contract of employment or that is not dealing at arm's length with Option Consommateurs. (aaa) Released Claims 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 of any kind whenever incurred, liabilities of any nature whatsoever, including interest, costs, expenses, class administration expenses (including Administration Expenses), penalties, and lawyers fees (including Class Counsel Fees), known or unknown, suspected or unsuspected, foreseen or unforeseen, actual or contingent, and liquidated or unliquidated, in law, under statute or in equity, that 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, relating in any way to any conduct anywhere, from the beginning of time to the Effective Date, in respect of the purchase, sale, pricing, discounting, advertising, marketing, distributing, production of or compensation for DRAM Products, or relating to any conduct alleged (or which could have been alleged) in the Proceedings or the Other Actions including, without limitation, any such claims which have been asserted, would have been asserted, or could have been asserted, whether in Canada or elsewhere, as a result of or in connection with an alleged conspiracy or other unlawful agreement or combination or as a result of or in connection with any other alleged unlawful horizontal or vertical anti-competitive conduct in connection with the purchase, sale, pricing, discounting, marketing, producing or distributing of DRAM Products in Canada and including, without limitation, any claims of consequential, subsequent or follow-on harm or allegation that arises after the date hereof in respect of any agreement or conduct that occurred anytime prior to the date hereof. However, nothing herein shall be construed to release any claims arising from any alleged product defect, breach of warranty, or similar claim between the Parties relating to DRAM Products. (bbb) Releasees means, jointly and severally, individually and collectively, Hitachi, Renesas Canada and Renesas Electronics America Inc., and any and all of their respective present and former, direct and indirect, parents, subsidiaries, divisions, affiliates, partners, insurers, and all other persons, partnerships or corporations with whom any of the former have been, or are now, affiliated, and their respective past, present and future officers, directors, employees, agents, shareholders, attorneys, trustees, servants and representatives; and the predecessors, successors, purchasers, heirs, executors, administrators and assigns of each of the foregoing, but excluding the Elpida Defendants, NEC Corporation, NEC Corporation of America, NEC Canada Inc., and Renesas Electronics Corporation. (ccc) Releasors means, jointly and severally, individually and collectively, the Plaintiffs and the Settlement Class Members and their respective parent, subsidiary, affiliate, shareholder, partner, director, owner of any kind, agent,

24 - 9 - attorney, employee, contractor, predecessor, successor, heir, executor, administrator, insurer, assign, devisee or representative of any kind. (ddd) Renesas Canada means Renesas Electronics Canada Ltd. (eee) Settlement Agreement means this agreement, including the recitals and schedules. (fff) Settlement Amount means the all-inclusive amount of CDN $2,750,000 which shall include all amounts, taxes, disbursements, fees, costs, interest and other amounts payable or owing, or potentially payable or owing, by the Settling Defendants. (ggg) Settlement Class or Settlement Classes means all persons included in the BC Settlement Class, the Quebec Settlement Class and the Ontario Settlement Class. (hhh) Settlement Class Member means a member of a Settlement Class who has not validly opted out of the Proceedings in accordance with orders of the Courts. (iii) Settlement Class Period means the period from April 1, 1999 to June 30, (jjj) Settling Defendants means Hitachi and Renesas Canada. (kkk) US Proceedings means the proceedings filed before the United States District Court for the Northern District of California under the caption In re: Dynamic Random Access Memory (DRAM) Antitrust Litigation, Master File No: M PJH, MDL No. 1486, and the proceedings filed the United States District Court for the Northern District of California under the caption Preis v. Hitachi, Ltd., Case No. CV PJH, and including all class and individual actions transferred by the Judicial Panel for Multidistrict Litigation for coordination, all actions pending such transfer, all actions that may be transferred in the future, and any other actions involving similar allegations relating to DRAM Products that are pending or that may be commenced before the federal or state courts of the United States. (lll) US Settlement means the settlement of any direct purchaser actions in the US Proceedings, the settlement of any indirect purchaser actions in the US Proceedings and any other settlements of the US Proceedings. ARTICLE II SETTLEMENT APPROVAL 2.1 Best Efforts The Parties shall use their best efforts to effectuate this settlement and to secure the prompt, complete approval and implementation of the settlement, and the final dismissal with prejudice of the Proceedings as against the Settling Defendants.

25 Motions Approving Notice and Seeking Certification or Authorization (a) (b) (c) Within thirty business days after the Settlement Agreement is executed or at another time mutually agreed to by the Parties, the Plaintiffs shall bring motions before the Courts for the BC First Order, the Ontario First Order, and the Quebec First Order. The BC First Order and the Ontario First Order shall be substantially in the form attached hereto as Schedules "B1" and B2. The minutes of the hearing in which the Quebec Superior Court grants the Quebec First Order motion in accordance with its conclusions, the substance of which shall be materially similar to the BC First Order, shall form the Quebec First Order. The Plaintiffs agree that, in the motions for certification or authorization of the Proceedings as against the Settling Defendants and for the approval of this Settlement Agreement, the only common issue that they will seek to define is the Common Issue and the only classes that they will seek to certify are the Settlement Classes. Nothing in this Settlement Agreement gives, or is intended to give, the Plaintiffs, and the Settlement Classes they represent in the Proceedings a further right to optout of the Proceedings, above and beyond the opt-out rights provided to the Settlement Classes as a result of the Elpida Settlement Agreement and as approved by the Courts thereof. 2.3 Motions for Approval of the Settlement Agreement (a) (b) As soon as practicable after the orders referred to in section 2.2 are granted, and if the Settlement Agreement has not been terminated or set aside pursuant to this Settlement Agreement, the Plaintiffs shall bring motions before the Courts to obtain the BC Second Order, the Ontario Second Order, and the Quebec Second Order, substantially in the form attached hereto as Schedule "C1", C2 and C3. This Settlement Agreement shall only become final on the Effective Date. 2.4 Pre-Motion Confidentiality of Settlement Agreement Until the first of the motions required by section 2.2 is brought, the Parties shall keep all of the terms of this Settlement Agreement confidential and shall not disclose them without the prior written consent of Defence Counsel and Class Counsel, as the case may be, except as required by law. 3.1 Payment of Settlement Amount ARTICLE III SETTLEMENT BENEFITS (a) Within thirty (30) business days of execution of this Settlement Agreement, Hitachi shall pay to BC Class Counsel in trust, for the benefit of the Settlement

26 Class Members, the Settlement Amount in full satisfaction of the Released Claims against the Releasees. The payment shall be made to BC Class Counsel subject to professional undertakings imposed on them not to deal with the funds except as is specially authorized or directed by this Settlement Agreement. (b) (c) (d) Neither the Settling Defendants nor Defence Counsel shall have any obligation to pay any amount in addition to the Settlement Amount, for any reason, pursuant to or in furtherance of this Settlement Agreement. BC Class Counsel shall hold the Settlement Amount in trust and maintain the Account as provided for in this Settlement Agreement, and shall transfer the Settlement Amount plus accrued interest to the Claims Administrator within ten (10) business days after the BC Court grants the BC First Order appointing the Claims Administrator. BC Class Counsel shall not pay out all or part of the monies in the Account, except in accordance with this Settlement Agreement or in accordance with an order of the Courts obtained on notice to the Settling Defendants. 3.2 Taxes and Interest (a) (b) (c) Except as hereinafter provided, all interest earned on the Settlement Amount shall accrue to the benefit of the Settlement Classes and shall become and remain part of the Account. Subject to section 3.2(c), all Canadian taxes payable on any interest which accrues on the Settlement Amount in the Account or otherwise in relation to the Settlement Amount shall be the sole responsibility of the Settlement Classes. Class Counsel or the Claims Administrator shall be solely responsible to fulfill all tax reporting and payment requirements arising from the Settlement Amount in the Account, including any obligation to report taxable income and make tax payments. All taxes (including interest and penalties) due with respect to the income earned by the Settlement Amount shall be paid from the Account. The Settling Defendants shall have no responsibility to make any filings relating to the Account and will have no responsibility to pay tax on any income earned by the Settlement Amount or pay any taxes on the monies in the Account, unless this Settlement Agreement is terminated, in which case the interest earned on the Settlement Amount in the Account shall be paid to the Settling Defendants who, in such case, shall be responsible for the payment of all taxes on such interest. 3.3 Cooperation (a) It is understood and agreed that all documents and information provided by the Settling Defendants to the Plaintiffs and Class Counsel specifically provided for under this Settlement Agreement shall be used only in connection with the prosecution of the Proceedings, and shall not be used directly or indirectly for any

27 other purpose. The Plaintiffs and Class Counsel agree they will not publicize, circulate or disclose the documents and information provided by the Settling Defendants beyond what is reasonably necessary for the prosecution of the Proceedings or as otherwise required by law. (b) (c) It is understood and agreed that all documents and information provided under this section will be treated as confidential and shall only be provided subject to the production order and the protective order substantially in the form incorporated in the order attached hereto as Schedule C2. Class Counsel shall move for the protective order at the same time as the motion approving this Settlement Agreement referred to in section 2.3(a). Within forty-five business days of the Effective Date or at a time mutually agreed upon by the Parties, Hitachi shall: (i) (ii) Produce transcripts in their possession of depositions that were taken of employees of Hitachi in the US Proceedings, if any, and produce copies in their possession of all non-privileged documents that were produced by Hitachi to the plaintiffs in the US Proceedings as document discovery, if any. (d) The Settling Defendants shall consent to any application by or on behalf of the Plaintiffs to intervene in the US Proceedings in order to gain access to discovery documents and other documents and information subject to protective order. (e) Unless expressly provided otherwise in this Settlement Agreement, section 3.3 constitutes the exclusive means by which the Plaintiffs, Settlement Class Members and Class Counsel may obtain discovery from the Settling Defendants, their present, former or future officers, directors or employees. (f) (g) Nothing in section 3.3 or any other section of this Settlement Agreement shall be construed to require the Settling Defendants or any of their present, former or future officers, directors or employees to perform any act, including the transmittal or disclosure of any information, which would violate any federal, provincial, state or local privacy law, any law of a foreign jurisdiction, or any court order. Nothing in section 3.3 or any other section of this Settlement Agreement shall require, or shall be construed to require, Hitachi to disclose or produce any documents or information prepared by or for their counsel, or to disclose or produce any documents or information in breach of any order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the US, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Settling Defendant.

28 (h) (i) (j) (k) Nothing in section 3.3 or any other section of this Settlement Agreement shall require, or be construed to require, the Settling Defendants to disclose or produce any documents or information if the Settling Defendants reasonably believe that said disclosure or production will endanger any of their applications or agreements with government authorities in Canada or elsewhere in connection with any regulatory or criminal investigations relating to DRAM Products (without admitting that such applications or agreements exist). If any documents or information is withheld under section 3.3(g), Hitachi shall provide Class Counsel with a summary of the types of documents and information withheld and the basis for withholding such information. Hitachi shall act in good faith in supporting the efforts of the Plaintiffs to obtain permission from such government authorities to disclose the documents and information that have been withheld under section 3.3(g). If such permission is not obtained, said documents and information will continue to be withheld unless any of the Courts order otherwise. If any documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the US are accidentally or inadvertently produced, such documents shall be promptly returned to the Settling Defendants and the documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such documents shall in no way be construed to have waived in any manner any privilege or protection attached to such documents. If, in the course of the Proceedings, the Plaintiffs and/or Class Counsel conclude that it is reasonably necessary to disclose information or documents obtained from Hitachi under section 3.3 which are not otherwise publically available information or documents to any of the Non-Settling Defendants or any other entities, the Plaintiffs and/or Class Counsel shall provide Hitachi with a 30-day advance notice in writing setting out the proposed disclosure. Hitachi reserves the right to oppose the proposed disclosure and/or take steps to protect their interests with respect of the information or documents in accordance with this Settlement Agreement and/or the order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the US. Subject to the rules of evidence, any court order with regard to confidentiality and the other provisions of this Settlement Agreement, Hitachi agrees to use reasonable efforts to provide affidavits for use at trial in the Proceedings for the sole purpose of supporting the submission into evidence of any information and/or documents provided by Hitachi in accordance with this Settlement Agreement and for the prosecution of the Proceedings. If, and only if, a court should determine that affidavits are inadequate for the purpose of submitting into evidence the information and/or documents produced by Hitachi, Hitachi agrees to use reasonable efforts to make available for testimony at trial an appropriate current officer or employee of Hitachi, but solely as is reasonably necessary for

29 the prosecution of the Proceedings and, specifically, for the purpose of admitting into evidence any information and/or documents provided by Hitachi to Class Counsel pursuant to section 3.3 herein. (l) (m) The obligations of the Settling Defendants to cooperate as particularized in section 3.3 shall not be affected by the release provisions contained in section 6.1 of this Settlement Agreement. The obligations of the Settling Defendants to cooperate shall cease at the date of final judgment in the Proceedings against all Defendants. In the event the Settling Defendants materially breach section 3.3, the Plaintiffs may move before the Courts, on notice to the Settling Defendants, to enforce the terms of this Settlement Agreement. A material factor influencing the decision by the Settling Defendants to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants and to avoid seeking information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the Settling Defendants. ARTICLE IV OPT OUT DEADLINE AND DISTRIBUTION OF THE SETTLEMENT AMOUNT AND ACCRUED INTEREST 4.1 Opt Out Deadline (a) (b) Unless ordered otherwise by any of the Courts, the procedure for Opting Out of the Proceedings was set out in the Orders issued by the B.C. Court on January 26, 2012, the Ontario Court on March 27, 2012, and the Quebec Court on March 27, 2012, and the Opt Out Deadline expired on June 2, The Plaintiffs and Class Counsel represent and warrant that the only persons within the Settlement Classes who opted out of the Proceedings by June 2, 2012 were the Village of Veteran, Alberta, and the City of Moncton, New Brunswick. If, before the hearing of the motions for Settlement Approval under Section 2.3, a person included in one of the Settlement Classes objects to an order of a Court under Section 2.2 on the grounds that such person believes they should be able to Opt Out, then that objection shall be put before the Court at the hearing of the motions for Settlement Approval under Section Distribution Protocol (a) After the Effective Date, at a time wholly within the discretion of Class Counsel, but on notice to the Settling Defendants, Class Counsel will make an application seeking orders from the Courts approving the Distribution Protocol.

30 (b) The Distribution Protocol shall require the Settlement Class Members seeking compensation to give credit for any compensation received through other proceedings or in private out-of-class settlements, in the US or Canada, unless by such proceedings or private out-of-class settlements the Settlement Class Member s claim was released in its entirety, in which case the Settlement Class Member shall be deemed ineligible for any compensation. 4.3 No Responsibility for Administration or Fees Neither the Settling Defendants nor Defence Counsel shall have any responsibility, financial obligations or liability whatsoever with respect to the investment, distribution or administration of monies in the Account including, but not limited to, Administration Expenses and Class Counsel Fees. 4.4 Fonds d'aide aux recours collectifs (a) (b) The Settlement Class Members, Class Counsel and/or the Claims Administrator shall make the necessary arrangements to comply with the Act Respecting Class Action, R.S.Q., c. R-2.1 and the Règlement sur le pourcentage prélevé par le Fonds d'aide aux recours collectifs, R.R.Q., c. R-2.1, r. 2. Neither the Settling Defendants nor Defence Counsel shall have any responsibility, financial obligations or liability whatsoever with respect to the payment due and payable to the Fonds d'aide aux recours collectifs. 5.1 Right of Termination ARTICLE V TERMINATION OF SETTLEMENT AGREEMENT (a) The Plaintiffs and/or the Settling Defendants have the right to terminate this Settlement Agreement in the event that (i) (ii) (iii) (iv) the BC or Quebec Court declines to add the Settling Defendants to the BC or Quebec Proceeding for settlement purposes only; any Court declines to certify or authorize the Proceedings as class proceedings against the Settling Defendants for settlement purposes only; any Court declines to approve this Settlement Agreement or any material part hereof which includes but not limited to the Settlement Amount, the form and content of the bar order and waiver of solidarity order or the terms of releases contemplated in this Settlement Agreement; any Court approves this Settlement Agreement in a materially modified form other than as amended by the parties in accordance with section 12.8 hereof; or

31 (v) The BC Second Order, the Quebec Second Order or the Ontario Second Order does not become a Final Order. (b) In addition to section 5.1(a), the Settling Defendants shall, in their sole discretion, have the option to terminate the Settlement Agreement in the event that: (i) (ii) any Court refuses or declines to grant a bar order or waiver of solidarity order that is substantially in accordance with the provisions of section 7.1 hereof; or any Court orders a new Opt Out Deadline and, the Confidential Opt Out Threshold is met. (c) (d) (e) (f) In addition to section 5.1(a), the Plaintiffs shall, in their sole discretion, have the option to terminate the Settlement Agreement in the event of non-payment of the Settlement Amount. If the Settling Defendants or the Plaintiffs elect to terminate the Settlement Agreement pursuant to section 5.1, a written notice of termination shall be provided. Upon delivery of such a written notice, this Settlement Agreement shall be terminated and, except as provided for in section 5.4, it shall be null and void and have no further force or effect, shall not be binding on the Parties, and shall not be used as evidence or otherwise in any litigation. All material and information provided shall be returned or destroyed by Class Counsel in accordance with section 5.2(a)(iii) and shall not be used in any way by the Plaintiff, the Settlement Class Members, or Class Counsel. Any order, ruling or determination made by any Court with respect to Class Counsel s fees and disbursements or with respect to the Distribution Protocol shall not be deemed to be a material modification of all, or a part, of this Settlement Agreement and shall not constitute any basis for the termination of this Settlement Agreement. The Parties acknowledge and agree that they shall not rely on any current or future orders or rulings arising from or in connection with the British Columbia Court of Appeal decisions in Sun-Rype Products Ltd. v. Archer Daniels Midland Company (Court of Appeal Docket #CA038308, CA and CA038324) and Pro-Sys Consultants Ltd. v. Microsoft Corporation (Court of Appeal Docket #CA and CA037968), and the Court of Appeal of Québec decision in Option consommateurs v. Infineon Technologies AG (Court of Appeal (Montreal), Number ) as a material adverse change or as any basis for the purpose of terminating this Settlement Agreement, or otherwise.

32 If Settlement Agreement is Terminated or Set Aside (a) If this Settlement Agreement is terminated or set aside: (i) (ii) (iii) (iv) no motion to certify or authorize the Proceedings as class proceedings against the Settling Defendants on the basis of this Settlement Agreement or to approve this Settlement Agreement, which has not been heard, shall proceed; any order certifying or authorizing the Proceedings as class proceedings or adding the Settling Defendants as defendants in BC and/or Quebec Proceedings on the basis of this Settlement Agreement or for purposes of approving this Settlement Agreement shall be set aside and declared null and void and of no force or effect, and all Parties shall be estopped from asserting otherwise; within ten days of such termination having occurred, Class Counsel shall destroy all documents or other materials provided by Defence Counsel under section 3.3(c) or containing or reflecting information derived from such documents or other materials received from the Settling Defendants and, to the extent Class Counsel has disclosed any documents or information provided by the Settling Defendants to any other person, shall recover and destroy such documents or information. Class Counsel shall provide Defence Counsel with a written certification by Class Counsel of such destruction. Nothing contained in this paragraph shall be construed to require Class Counsel to destroy any of their work product. However, any documents or information provided by Defence Counsel, or received from Defence Counsel in connection with this Settlement Agreement, may not be disclosed to any person in any manner or used, directly or indirectly, by Class Counsel or any other person in any way for any reason, without the express prior written permission of the Settling Defendants. Class Counsel shall take appropriate steps and precautions to ensure and maintain the confidentiality of such documents, information and any work product of Class Counsel; and Any step taken by the Settling Defendants in the Proceedings and the Ontario Additional Proceeding in relation to this Settlement Agreement shall be without prejudice to any position that any of the Settling Defendants may later take in respect of any procedural or substantive issues in the Proceedings or any proceedings in Canada, or in respect of the jurisdiction of the Courts or any other court in Canada over such defendants or their deeds or other conduct. 5.3 Allocation of Monies in the Account Following Termination If the Settlement Agreement is terminated, BC Class Counsel or the Claims Administrator, who holds the Settlement Amount, shall return to the Settling Defendants all monies in the Account

33 including accrued interest, but less the amount of any income taxes paid in respect of any interest earned on monies in the Account within thirty (30) business days of the relevant termination event in section 5.1, and less any costs and expenses that have been actually incurred as at the date of termination in relation to providing notice as required pursuant to the Settlement Agreement up to a maximum of $25,000 and in relation to reasonable costs of translation pursuant to the Settlement Agreement. 5.4 Survival of Provisions After Termination (a) (b) If this Settlement Agreement is terminated, the provisions of sections 2.4, 3.2(b), 3.2(c), 3.3(a), 3.3(b), 3.3(f), 3.3(g), 3.3(h) (first sentence only), 3.3(i), 3.3(j), 5.1(d), 5.2, 5.3, 5.4, 8.1, 8.2, 8.3(b), 9.5, 11.2, and 12.6 (and any additional provisions governing confidentiality) and the definitions and Schedules applicable thereto shall survive the termination and continue in full force and effect. The definitions and Schedules shall survive only for the limited purpose of the interpretation of sections 2.4, 3.2(b), 3.2(c), 3.3(a), 3.3(b), 3.3(f), 3.3(g), 3.3(h) (first sentence only), 3.3(i), 3.3(j), 5.1(d), 5.2, 5.3, 5.4, 8.1, 8.2, 8.3(b), 9.5, 11.2, and 12.6 (and any additional provisions governing confidentiality) within the meaning of this Settlement Agreement, but for no other purposes. All other provisions of this Settlement Agreement and all other obligations pursuant to this Settlement Agreement shall cease immediately. The Plaintiffs and Class Counsel expressly acknowledge that they will not, in any way whatsoever, use the fact or existence of this Settlement Agreement as any form of admission, whether of liability, wrongdoing, or otherwise, of the Settling Defendants. ARTICLE VI RELEASES AND DISMISSALS 6.1 Release of Releasees Upon the Effective Date, and in exchange for the Settlement Amount and for other valuable consideration set forth in the Settlement Agreement, the Releasors forever and absolutely release the Releasees from the Released Claims, as well as any and all claims for contribution or indemnity with respect to the Released Claims. 6.2 Covenant Not To Sue Notwithstanding section 6.1, for any Settlement Class Members resident in any province or territory where the release of one tortfeasor is a release of all other tortfeasors, the Releasors do not release the Releasees but instead covenant and undertake not to sue or make any claim in any way or to threaten, commence, participate in, or continue any proceeding in any jurisdiction against the Releasees in respect of or in relation to the Released Claims.