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Share Name | Share Symbol | Market | Type |
---|---|---|---|
EXFO Inc | NASDAQ:EXFO | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 6.245 | 6.24 | 6.26 | 0 | 01:00:00 |
Form 20-F ☑
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Form 40-F □
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Yes □
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No ☑
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EXFO INC.
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By: /s/ Benoit Ringuette
Name: Benoit Ringuette
Title: General Counsel and Corporate Secretary
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BETWEEN:
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11172239 CANADA INC., a
corporation incorporated under the federal laws of Canada; (the “Purchaser”)
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AND:
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G. LAMONDE INVESTISSEMENTS
FINANCIERS INC., a corporation incorporated under the laws of the province of Quebec; (the “Purchaser Parent”)
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AND:
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EXFO INC., a corporation
incorporated under the federal laws of Canada; (the “Corporation”).
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1
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Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Arrangement Agreement.
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2
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The Parties agree to amend the Arrangement Agreement by deleting the defined term “Excluded Shares” in Section 1.1 of the Arrangement
Agreement in its entirety and replacing it with the following:
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3
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The Parties agree to amend the Arrangement Agreement by deleting the defined term “Purchaser Termination Fee” in Section 1.1 of the
Arrangement Agreement and replacing it with the following:
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4
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The Parties agree to amend the Arrangement Agreement by adding the defined term “Rolling Shareholder” in Section 1.1 of the Arrangement Agreement as follows:
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5
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The Parties agree to amend Section 2.3(1) of the Arrangement Agreement by deleting the date “July 30, 2021” and replacing it with “August 13, 2021”.
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6
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The Parties agree to amend Section 2.10 of the Arrangement Agreement by deleting it in its entirety and replacing it with the following:
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Section 2.10 |
Payment of Consideration.
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7
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The Parties agree to amend Section 8.2(2) of the Arrangement Agreement by deleting the introductory language thereof in its entirety and replacing it with the following:
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(2) |
For the purposes of this Agreement, “Corporation Termination Fee” means 2.75% of the total Consideration to be paid by the Purchaser pursuant to the Arrangement (provided that, such calculation of
the total Consideration payable shall exclude: (i) if a definitive agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder prior to the date on which the Corporation Termination Fee becomes payable
such that the Rolling Shareholder would have, effective upon Closing, become a shareholder of the Purchaser, the Excluded Shares; and (ii) if no such definitive agreement is reached between the Purchaser or any of its affiliates and the
Rolling Shareholder prior to the date on which the Corporation Termination Fee becomes payable the Subordinate Voting Shares owned or beneficially controlled by the Purchaser or any of its affiliates), and “Corporation
Termination Fee Event” means the termination of this Agreement:
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8
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The Parties agree to amend the Plan of Arrangement attached as Schedule A to the Arrangement Agreement by adding the defined term “Rolling Shareholder” in Section 1.1 of the Plan of Arrangement as follows:
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9
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The Parties agree to amend the Plan of Arrangement attached as Schedule A to the Arrangement Agreement by deleting Section 2.3 of the Plan of Arrangement in its entirety and replacing
it with the following:
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Section 2.3 |
Arrangement
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(1)
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each Corporation DSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the DSU Plan, shall, without any further action by or on behalf of a
holder of Corporation DSUs, be deemed to be assigned and transferred by such holder to the Corporation in exchange for a cash payment from the Corporation equal to the Consideration, less applicable withholdings, and each such Corporation
DSU shall immediately be cancelled and all obligations in respect of the Corporation DSUs shall be deemed to be fully satisfied;
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(2)
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each Corporation SAR outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the SAR Plan, shall, without any further action by or on behalf of a
holder of Corporation SARs, be deemed to be assigned and transferred by such holder to the Corporation in exchange for a cash payment from the Corporation equal to the amount (if any) by which the Consideration exceeds the exercise price
of such Corporation SAR determined on the date of grant, less applicable withholdings (for greater certainty, where such amount is negative, neither the Corporation nor the Purchaser shall be obligated to pay the holder of such
Corporation SAR any amount in respect of such Corporation SAR), and each such Corporation SAR shall immediately be cancelled and all obligations in respect of the Corporation SARs shall be deemed to be fully satisfied;
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(3)
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(i) each holder of Corporation DSUs and Corporation SARs shall cease to be a holder of such Corporation DSUs and Corporation SARs; (ii) such holder’s name shall be removed from each applicable register
except for Corporation SARs for which there is no register; (iii) the DSU Plan and SAR Plan and all agreements relating to such Corporation DSUs and Corporation SARs shall be terminated and shall be of no further force and effect; and
(iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(1) and Section 2.3(2), as applicable, at the time and in the manner specified in such Sections;
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(4)
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each outstanding Subordinate Voting Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or
formality by the holder thereof to the Purchaser (free and clear of all Liens), and:
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(a)
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such Dissenting Holder shall cease to have any rights as a SVS Shareholder other than the right to be paid the fair value of its Subordinate Voting Shares by the Purchaser in accordance with Article 3;
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(b)
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the name of such holder shall be removed from the register of holders of Subordinate Voting Shares maintained by or on behalf of the Corporation; and
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(c)
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the Purchaser shall be recorded as the holder of the Subordinate Voting Shares so transferred and shall be deemed to be the legal and beneficial owner thereof (free and clear of all
Liens);
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(5)
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each outstanding Subordinate Voting Share (other than (i) Subordinate Voting Shares held by any Dissenting Holder who has validly exercised such holder’s Dissent Right and (ii) Subordinate Voting Shares
owned or beneficially controlled by (x) the Purchaser, (y) the Rolling Shareholder (to the extent an agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder prior to Closing such that the
Rolling Shareholder will, effective upon Closing, become a shareholder of the Purchaser) or (z) any of their respective affiliates) shall be transferred without any further act or formality by the holder thereof to the Purchaser (free
and clear of all Liens) in exchange for the Consideration per Subordinate Voting Share, and
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(a)
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the holder of such Subordinate Voting Share shall cease to have any rights as a SVS Shareholder other than the right to be paid the Consideration per Subordinate Voting Share in accordance with this
Plan of Arrangement;
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(b)
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the name of such holder shall be removed from the register of holders of Subordinate Voting Shares maintained by or on behalf of the Corporation; and
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(c)
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the Purchaser shall be recorded as the holder of the Subordinate Voting Shares so transferred and shall be deemed to be the legal and beneficial owner thereof (free and clear of all Liens); and
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(6)
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(i) the LTIP relating to Corporation RSUs and Corporation PSUs shall be amended, restated or supplemented as is necessary to take into account the privatization of the Corporation, including for
purposes of modifying the method, conditions and restrictions of exercise of Corporation RSUs and Corporation PSUs, adding a cash settlement feature with respect to the Corporation RSUs and modifying the valuation methodology, and
(ii) each Corporation RSU and Corporation PSU outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of the holder thereof, remain outstanding and governed by the terms of the LTIP and
any RSU Agreement and PSU Agreement, as applicable, in each case as amended, restated or supplemented in accordance with clause (i) of this paragraph.
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10
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The Parties agree to amend Section 4.1(1) of the Plan of Arrangement attached as Schedule A to the Arrangement Agreement by deleted the words “(other than the Dissenting Holders and the Purchaser or its
affiliates)” and replacing such words with the following:
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11
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The parties agree to amend paragraph (9) of the representations and warranties of the Purchaser attached as schedule D to the Arrangement Agreement by deleting such paragraph in its
entirety and replacing it with the following:
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12
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The parties agree to amend paragraph (10) of the representations and warranties of the Purchaser attached as schedule D to the Arrangement Agreement deleting the last sentence of
such paragraph in its entirety and replacing it with the following:
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13
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Except for the foregoing amendments, the parties hereto acknowledge and confirm that the Arrangement Agreement shall remain in full force and effect, unamended, and, upon the execution of this Amending
Agreement, the Arrangement Agreement and this Amending Agreement shall be deemed to constitute the entire Arrangement Agreement.
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14
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In the event of any inconsistency between the terms of this Amending Agreement and the terms of the Arrangement Agreement, the provisions of this Amending Agreement shall prevail.
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15
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This Amending Agreement becomes effective only when executed by the Corporation, the Purchaser and the Purchaser Parent. After that time, it will be binding upon and enure to the benefit of the
Corporation, the Purchaser, the Purchaser Parent and their respective successors and permitted assigns.
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16
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Neither this Amending Agreement nor any of the rights or obligations under this Amending Agreement are assignable or transferable by any Party without the prior written consent of the other Parties,
except that the Purchaser may assign all or any portion of its rights and obligations under this Amending Agreement to any of its affiliates, but none of any such assignments shall (i) relieve the Purchaser of its obligations
hereunder, (ii) impair, delay or prevent the satisfaction of any other conditions set forth in this Amending Agreement, or (iii) impair, delay or prevent the consummation of the transactions contemplated by the Arrangement Agreement.
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17
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If any provision of this Amending Agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this
Amending Agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being
enforced, the Parties shall negotiate in good faith to modify this Amending Agreement so as to effect the original intent of the Parties.
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18
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This Amending Agreement will be governed by, interpreted and enforced in accordance with the Laws of the Province of Québec and the federal Laws of Canada applicable therein.
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19
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Each Party irrevocably attorns and submits to the non-exclusive jurisdiction of the Québec courts situated in the City of Montreal and waives objection to the venue of any proceeding in such court or
that such court provides an inconvenient forum.
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20
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The Parties expressly acknowledge that they have requested that this Amending Agreement be drafted in the English language only. Les parties aux
présentes reconnaissent avoir exigé que la présente entente soit rédigé en anglais seulement.
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21
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This Amending Agreement may be executed in any number of counterparts (including counterparts by facsimile) and all such counterparts taken together shall be deemed to constitute
one and the same instrument. The Parties shall be entitled to rely upon delivery of an executed facsimile or similar executed electronic copy of this Amending Agreement, and such facsimile or similar executed electronic copy shall
be legally effective to create a valid and binding agreement between the Parties.
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11172239 CANADA INC.
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Per:
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(s) Germain Lamonde
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Name: Germain Lamonde
Title: President
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EXFO INC.
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Per:
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(s) Benoit Ringuette
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Name: Benoit Ringuette
Title: General Counsel and Corporate Secretary |
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Per:
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(s) Pierre Plamondon
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Name: Pierre Plamondon
Title: Chief Financial Officer
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G. LAMONDE INVESTISSEMENTS FINANCIERS INC.
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Per:
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(s) Germain Lamonde
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Name: Germain Lamonde
Title: President
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[Signature Page – Amending Agreement to the Arrangement Agreement]
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Page 9 of 9
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