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EXHIBIT 4.2
Form of Trust Agreement among EXFO Electro-Optical Engineering Inc.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, GEXFO Investissements Technologiques inc.,
Fiducie ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇ Investissements Financiers inc.
THIS AGREEMENT made as of the [ ] day of __, 2000.
AMONG: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual residing in Cap-Rouge,
Province of Quebec,
(hereinafter called "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇")
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GEXFO INVESTISSEMENTS TECHNOLOGIQUES INC., a company
incorporated under the laws of the Province of Quebec,
(hereinafter called "GEXFO")
- and -
▇. ▇▇▇▇▇▇▇ INVESTISSEMENTS FINANCIERS INC., a company
incorporated under the laws of the Province of Quebec,
(hereinafter called "INVESTISSEMENTS")
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FIDUCIE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a family trust constituted
under the laws of the Province of Quebec,
(hereinafter called "TRUST ▇▇▇▇▇▇▇")
(▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, GEXFO, INVESTISSEMENTS and TRUST
▇▇▇▇▇▇▇ are collectively referred to as the
"SHAREHOLDERS")
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EXFO ELECTRO-OPTICAL ENGINEERING INC., a corporation
incorporated under the laws of Canada,
(hereinafter called the "CORPORATION")
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CIBC MELLON TRUST COMPANY, a trust company incorporated
under the laws of Canada,
(hereinafter called the "TRUSTEE")
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WHEREAS the Corporation has an authorized share capital consisting of an
unlimited number of subordinate voting shares (the "SUBORDINATE VOTING SHARES"),
an unlimited number of multiple voting shares (the "MULTIPLE VOTING SHARES")
(the Subordinate Voting Shares and the Multiple Voting Shares are collectively
referred to herein as the "EQUITY SHARES") and an unlimited number of Preferred
Shares issuable in series;
WHEREAS the Corporation proposes to issue and sell 6,000,000 Subordinate
Voting Shares pursuant to a prospectus dated __, 2000 (900,000 additional
Subordinate Voting Shares if the over-allotment (the "Over-Allotment") granted
by the Corporation to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, RBC
Dominion Securities Inc., Wit SoundView Corporation and CIBC World Markets Inc.
is exercised in full (the "OFFERING");
WHEREAS on the closing date of this Offering (the "Closing Date")
38,000,000 Multiple Voting Shares, 6,709,605 Subordinate Voting Shares
(7,609,605 Subordinate Voting Shares if the Over-Allotment option is exercised
in full) and 800,000 Preferred Shares Series 1 will be issued and outstanding;
WHEREAS the Shareholders and the Corporation have agreed to enter into this
Agreement in order to secure the listing of the Subordinate Voting Shares of the
Corporation on The Toronto Stock Exchange and derive the benefits of such
listings, and for the purpose of ensuring that the holders of the Subordinate
Voting Shares will not be deprived of any rights under applicable take-over bid
legislation to which they would have been entitled in the event of a take-over
bid if the Multiple Voting Shares and the Subordinate Voting Shares were a
single class of shares;
WHEREAS the Shareholders and the Corporation wish to constitute the Trustee
as a trustee for the holders of the Subordinate Voting Shares all as
contemplated hereby in order that such holders, through the Trustee, will
benefit from the covenants of the Shareholders and the Corporation as contained
in this Agreement;
WHEREAS, for the purpose of this Agreement, "▇▇▇▇▇▇▇ FAMILY " means
collectively (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (ii) his spouse, in fact or in law, (iii) any
lineal descendant of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, born or to be born, (iv) any trust
constituted primarily for the benefit of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, his spouse, in fact or
in law, or any of his descendants, born or to be born, and (v) any corporation
where 90% of the votes attaching to all outstanding shares and at least 50% of
all outstanding shares are controlled by any one or more of such persons or
trusts.
NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the
promises and agreements herein contained and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Subject to the other provisions of this Agreement, the Shareholders being
the holders of all the Multiple Voting Shares (the "MV SHAREHOLDERS" or, as
the case may be, a "MV SHAREHOLDER") shall not sell nor dispose of,
directly or indirectly, any Multiple Voting Shares pursuant to a take-over
bid, as defined by applicable securities legislation, under circumstances
in which securities legislation would have required the same offer or a
follow-up offer to be made to all holders of Subordinate Voting Shares if
the sale had been of Subordinate Voting Shares rather than Multiple Voting
Shares, but otherwise on the same terms. For this purpose, it shall be
assumed that the offer that would have resulted in such sale of Subordinate
Voting Shares would have constituted a take-over bid under applicable
securities legislation, regardless or whether this actually would have been
the case. Should it be necessary to determine the value of Multiple Voting
Shares to ascertain the applicability of any
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exemption from take-over bid requirements for the purposes of the
foregoing, the Multiple Voting Shares shall be deemed to have the same
value as that which would be assigned by applicable securities legislation
to the Subordinate Voting Shares under similar circumstances.
2. Section 1 shall not apply to prevent any sale or other disposition by any
MV Shareholder of Multiple Voting Shares, if:
(a) such sale or other disposition is made pursuant to an offer to
purchase part only of the Multiple Voting Shares made to all holders
of Multiple Voting Shares, and an offer all the terms of which are at
least as favourable as the terms of the offer to purchase the Multiple
Voting Shares (in terms of price per share, percentage of outstanding
shares to be taken up exclusive of shares owned immediately prior to
the offer by the offeror, or associates or affiliates of the offeror,
and in all other material respects) is made concurrently to all
holders of Subordinate Voting Shares to purchase Subordinate Voting
Shares, which offer is unconditional (other than the right not to take
up and pay for shares tendered if no shares are purchased pursuant to
the offer for Multiple Voting Shares); or
(b) there is a concurrent unconditional offer, all terms of which are as
favourable as the terms of the offer to purchase the Multiple Voting
Shares, to purchase all of the Subordinate Voting Shares at a price
per share at least as high as the highest price per share offered
pursuant to the said sale or other disposition of the Multiple Voting
Shares referred to in (a) above; or
(c) such sale or disposition is a direct or indirect sale or other
disposition of shares of the Corporation, provided that (i) the sale
or other disposition is effected within the ▇▇▇▇▇▇▇ Family at a price
which is within the margin prescribed by the Securities Act (Quebec),
(ii) the transferee is not a party to any agreement under which any
other person would directly or indirectly participate in the
beneficial ownership of, control or direction over more than 50% of
the votes attaching to the Equity Shares held by such transferee,
(iii) the sale is otherwise made in accordance with applicable law,
(iv) the prior written consent of the Trustee as contemplated by
Section 4 of this Agreement has been obtained, and (v) the transferee,
if not already a party to this Agreement, becomes a party to this
Agreement.
For the purposes of paragraphs (a) and (b) of this Section 2, the varying
of any term of an offer shall be deemed to constitute the making of a new
offer.
3. Without restricting the generality of the foregoing and in addition to any
other provisions herein of similar effect, the MV Shareholders agree that
the Multiple Voting Shares shall be automatically converted into
Subordinate Voting Shares upon the occurrence of any of the following
circumstances, namely: (A) members of the ▇▇▇▇▇▇▇ Family (as defined in the
preamble hereof) do not beneficially own, directly or indirectly, in any
manner, a number of Equity Shares representing either (i) more than 50% of
the votes attaching to all issued and outstanding Equity Shares or (ii) 60%
of the total number of Multiple Voting Shares held by them on the closing
date of this Offering (or 22,800,000 Multiple Voting Shares) or (B) ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ no longer occupies the position of either Chairman of the Board or
Chief
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Executive Officer of the Corporation, for any reason, including voluntary
or forced retirement, death or incapacity (the "Occurrence"), unless such
situation is remedied within 60 days from the Occurrence or, if the
situation which gave rise to such Occurrence is the incapacity of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, within 1 year from the Occurrence. The Trustee is hereby
irrevocably instructed to convert the Multiple Voting Shares into
Subordinate Voting Shares 60 days after the Occurrence, provided the
situation which gave rise to such Occurrence has not been remedied within
such 60-day period or, as the case may be, if the situation that gave rise
to such Occurrence is the incapacity of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 1 year after the
occurrence of such incapacity, provided the incapacity of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
has not ceased within such 1-year period.
In addition, if at any time, the ▇▇▇▇▇▇▇ Family or any of its members sells
or otherwise transfer Multiple Voting Shares to a party who is not a member
of the ▇▇▇▇▇▇▇ Family, such transferred shares shall be automatically
converted on the date of such sale or transfer into Subordinate Voting
Shares and the Trustee shall automatically convert those shares into
Subordinate Voting Shares unless a certificate signed by the transferor and
transferee confirming that the transferee is a member of the ▇▇▇▇▇▇▇ Family
is provided to the Trustee.
4. Notwithstanding any other provision contained herein, the prior written
consent of the Trustee shall be required in connection with any sale or
other disposition of Multiple Voting Shares, whether direct or indirect, by
any MV Shareholder. Such consent shall be given no later than the next
Business Day of receipt by the Trustee of evidence satisfactory to it,
acting reasonably, to the effect that the sale or disposition is not in
contravention of this Agreement. For the purposes of the foregoing, the
Trustee shall be entitled to consider a legal opinion to be satisfactory
evidence although no such opinion is necessarily required. The Trustee also
has the right to require from time to time evidence satisfactory to it,
acting reasonably, as to the number of Equity Shares beneficially owned
directly or indirectly by the ▇▇▇▇▇▇▇ Family or any MV Shareholder. For the
purposes of this Agreement, "Business Days" means a day, other than a
Saturday, Sunday or any other day on which the principal banks located in
Quebec City are not open for business during normal banking hours. No
consent shall be given in respect of any sale or disposition unless the
Trustee receives the consent of the person or company requiring the shares
to be bound hereby as an MV Shareholder.
5. Each MV Shareholder shall use its best efforts to prevent any person or
company it controls from carrying out any direct or indirect sale or other
disposition in contravention of the foregoing in respect of any Multiple
Voting Shares owned from time to time by such MV Shareholder, or any person
or company controlled, directly or indirectly by such MV Shareholder,
regardless of whether such person or company is a party to this Agreement.
6. For greater certainty, any direct or indirect sale or other disposition
which would result in the direct or indirect acquisition of beneficial
ownership of Multiple Voting Shares or Subordinate Voting Shares, or in the
direct or indirect acquisition of control or direction over such shares,
shall be construed to be a sale or disposition of such Multiple Voting
Shares or Subordinate Voting Shares, as the case may be, for the purposes
of the foregoing.
7. No MV Shareholder or any corporation which it controls shall directly or
indirectly sell or dispose of any Multiple Voting Shares unless the sale or
disposition is conditional upon the
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person, trust or company acquiring such Multiple Voting Shares becoming a
party to this Agreement as a MV Shareholder.
8. Notwithstanding any other provision contained herein, the restrictions of
the preceding provisions of this Agreement, subject to Section 11, shall
not apply to the exercise by the holder of Multiple Voting Shares of any
right of conversion into Subordinate Voting Shares attaching to the
Multiple Voting Shares and the subsequent sale or disposition of the
Subordinate Voting Shares issued upon such conversion.
9. Nothing in this Agreement shall prevent an MV Shareholder from granting,
from time to time, directly or indirectly, a security interest, by way of
pledge, hypothecation or otherwise, whether directly or indirectly, in
Multiple Voting Shares to any financial institution with which it deals at
arm's length (within the meaning of the Income Tax Act (Canada)) in
connection with a bona fide borrowing provided that concurrent with the
pledge, hypothecation or other granting of the security interest, the
financial institution agrees in writing to become a party to and abide by
the terms of this Agreement as if such financial institution were a MV
Shareholder until such time as the pledge, hypothecation or other security
interest has been released or the Multiple Voting Shares which were subject
thereto have been sold or disposed of in accordance with the terms of this
Agreement.
10. The Shareholders hereby agree to place on deposit with the Trustee,
contemporaneously with the issuance of Subordinate Voting Shares to the
public pursuant to the final prospectus of the Corporation dated __ ,
2000, 38,000,000 Multiple Voting Shares which are represented by the
certificates referred to in Schedule "A" hereto and hereby undertake and
agree to deliver the share certificates representing such shares (including
any replacement securities or certificates if and when such are issued or
allotted) to the Trustee for safekeeping and to assure compliance with the
terms and conditions hereof. It is understood, however, that the Trustee
shall release from deposit such number of Multiple Voting Shares as are
covered by any consent granted in accordance with the provisions of Section
4 save and except for transfers among members of the ▇▇▇▇▇▇▇ Family.
11. If any person or company carries out an indirect sale or other disposition
contemplated in this Agreement in contravention of the terms hereof, the
person, trust, or company acquiring such shares shall not thereafter do any
of the following with respect to any of the Multiple Voting Shares so sold
or disposed or to those Subordinate Voting Shares resulting from the
conversion thereof: (a) directly or indirectly sell or dispose of them
without the prior written consent of the Trustee; or (b) exercise any
voting rights attaching to them except in accordance with the written
instructions of the Trustee. The Trustee may attach conditions to any
consent the Trustee gives in exercising its rights hereunder. The Trustee
shall exercise such rights in a manner that the Trustee considers to be:
(i) in the best interests of the holders of the Subordinate Voting Shares,
other than the Shareholders or any MV Shareholder who, in the opinion of
the Trustee, participated directly or indirectly in the transaction that
triggered the operation of this Section 11, (ii) in accordance with
applicable securities legislation, and (iii) consistent with the intentions
of the Shareholders and the Corporation in entering into this Agreement as
such intentions are set out in the preamble to this Agreement.
Notwithstanding a sale or disposition of shares which constitutes an
indirect sale or disposition of Multiple Voting Shares in contravention to
this Agreement, the Shareholders shall not, although remaining bound by the
restrictions and prohibitions of this Agreement,
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have any liability for damages hereunder in respect of such sale or
disposition, provided that the Shareholders are otherwise in compliance
with all other provisions of this Agreement.
12. The ▇▇▇▇▇▇▇ Family or any of its members shall send to the Trustee within
30 days of the end of each financial year a certificate signed by each
member of the ▇▇▇▇▇▇▇ Family confirming that (A) members of the ▇▇▇▇▇▇▇
Family do beneficially own, directly or indirectly, in any manner, a number
of Equity Shares representing either (i) more than 50% of the votes
attaching to all issued and outstanding Equity Shares or (ii) 60 % of the
total number of Multiple Voting Shares held by them on the closing date of
the Offering (or 22,800,000 Multiple Voting Shares) and (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
still occupies the position of either Chairman of the Board or Chief
Executive Officer of the Corporation. In addition, if and whenever the
Trustee has reasonable cause to believe that any MV Shareholders or the
Corporation may have breached, or may intend to breach, any provision of
this Agreement, the Trustee shall make reasonable enquiry to determine
whether such a breach has occurred or is intended, and if the Trustee
thereupon determines that such is the case the Trustee shall forthwith
deliver to the Corporation a notice stating that the Trustee has made such
determination. The Trustee shall thereupon be entitled to take and, subject
to Section 14, shall take such action as the Trustee considers necessary to
enforce its rights under this Agreement on behalf of the holders of the
Subordinate Voting Shares. Any action which the Trustee is entitled to take
in such circumstances includes, without limitation, a refusal to consent to
any sale or disposition of Multiple Voting Shares.
13. Subject to Section 14, if and whenever holders of not less than 10%
(excluding any members of the ▇▇▇▇▇▇▇ Family or any holders of Multiple
Voting Shares) of the then outstanding Subordinate Voting Shares determine
that any one of the MV Shareholders or the Corporation has breached, or
intends to breach, any provision of this Agreement, such holders may
require the Trustee to take action in connection with such failure by
delivering to the Trustee a requisition in writing signed in one or more
counterparts by such holders and setting forth the nature of the breach and
requesting the Trustee to take action as provided for in this Agreement,
and upon receipt by the Trustee of such a requisition the Trustee shall
forthwith take such action or any other action that the Trustee considers
necessary to enforce its rights under this Agreement on behalf of the
holders of the Subordinate Voting Shares.
14. The obligation of the Trustee to take any action on behalf of the holders
of the Subordinate Voting Shares shall be conditional upon the Trustee
receiving from the Corporation or from one or more holders of Subordinate
Voting Shares such indemnification as the Trustee may reasonably require in
respect of any costs or expenses which it may incur in connection with any
such action. The Corporation shall provide such indemnification to the
Trustee if the Trustee has delivered to the Corporation the notice referred
to in Section 12.
15. No holder of Subordinate Voting Shares (excluding any members of the
▇▇▇▇▇▇▇ Family or any holders of Multiple Voting Shares) shall have the
right, other than through the Trustee, to institute any action or
proceeding or to exercise any other remedy for the purpose of enforcing any
rights arising from this Agreement unless holders of Subordinate Voting
Shares shall have requested in the manner specified in Section 13 that the
Trustee act and shall have provided reasonable indemnity to the Trustee and
the Trustee shall have failed to so act within 30 days after the provision
of such indemnity. In such case, any holder of Subordinate Voting Shares
shall be entitled to take proceedings in any court of competent
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jurisdiction such as the Trustee might have taken. In such circumstances,
the Corporation shall reimburse the reasonable costs of any action that may
be taken in good faith by the holders of Subordinate Voting Shares in
accordance with the provisions hereof.
16. The Corporation shall do all things necessary to facilitate the due
performance of this Agreement including the fulfillment by the Shareholders
of their obligations hereunder.
17. The Trustee may resign and be discharged from all further duties and
liabilities hereunder, subject to Section 19, after giving 30 days' written
notice to the Corporation and the Shareholders or such shorter notice as
the Corporation and the Shareholders may accept as sufficient.
18. The Corporation may terminate the Trustee's mandate pursuant to this
Agreement, after giving 30 days' written notice to the Trustee, should:
(a) any company into or with which the Trustee may be merged or
consolidated or amalgamated, or any company succeeding to the trust
business of the Trustee be unacceptable to the Corporation, acting
reasonably; or
(b) the financial situation of the Trustee is such that, in the opinion of
the Corporation, acting reasonably, it jeopardizes the Trustee's
capability to perform its obligations under this Agreement; or
(c) the fees and expenses of the Trustee are, in the opinion of the
Corporation, acting reasonably, not within the general practice of the
industry.
In the event that the office of trustee becomes vacant, the Corporation
shall forthwith appoint a new trustee which shall be a company licensed or
authorized to carry on the business of a trust company in the Province of
Quebec; failing such appointment, the Shareholders, the Trustee or any
holder of Subordinate Voting Shares may apply to a judge of the Quebec
Superior Court for the appointment of a new trustee. Upon any new
appointment, the new trustee shall be vested with the same powers, rights,
duties and responsibilities as it had been originally named herein as the
trustee, but there shall be immediately executed, at the expense of the
Corporation, all such instruments as may be, in the opinion of counsel to
the Corporation, necessary or desirable to assure such vesting. Any
resignation or termination of the Trustee shall not become effective until
the successor party shall have executed an appropriate instrument accepting
the appointment as the new trustee. Notwithstanding such resignation or
termination, the Trustee shall continue to be indemnified in accordance
with Section 19.
19.
(a) Each of the MV Shareholders and the Corporation, jointly but not
jointly and severally, agree to indemnify and save harmless the
Trustee from and against all claims, liabilities, losses, penalties,
actions, suits, costs, expenses and disbursements (including legal and
advisory fees and expenses) made against it by anyone, in the absence
of negligence or fraud by the Trustee, its officers, directors and
employees, by reason of the Trustee's compliance in good faith with
the terms hereof. It is
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understood that, as between the MV Shareholders and the Corporation,
the party in default or alleged to be in default hereunder shall be
responsible for such indemnification if it arises from its own default
or alleged default. It is understood and agreed that this
indemnification shall survive the termination or discharge of this
agreement or resignation of the Trustee.
(b) The Trustee may employ or retain counsel, auditors, accountants, or
other experts or advisors, whose qualifications give authority to any
opinion or report made by them as it may reasonably require for the
purpose of discharging its duties hereunder and shall not be
responsible for any misconduct on the part of any of them. The Trustee
may, if it is acting in good faith, rely on the accuracy of any such
opinion or report.
(c) The Trustee shall have no responsibility, if it is acting in good
faith, for the genuineness or validity or any securities, documents or
other things deposited with it. In the exercise of its rights, duties
and obligations hereunder, the Trustee may, if it is acting in good
faith, rely as to the truth of the statements and the accuracy of the
opinions expressed in any certificates or other documents provided to
it.
20. The Corporation shall pay the reasonable fees and expenses of the Trustee
in connection with the performance of the Trustee's obligations hereunder,
including the reasonable fees and disbursements of counsel or other experts
employed by the Trustee, but this Section 20 shall not require the
Corporation to pay any fees or expenses in connection with any action taken
by the Trustee pursuant to Section 12 if the Trustee has not delivered to
the Corporation the notice referred to in Section 12 in respect of such
action.
21. The Trustee hereby accepts the appointment as depositary and trustee for
the holders from time to time of the Subordinate Voting Shares upon the
terms and conditions herein set forth. Subject to the limitations contained
herein, the Trustee shall act as a depositary and, in its capacity of
trustee, shall be charged with simple administration in accordance with the
provisions of the Civil Code of Quebec, it being understood that the
Trustee shall not have, except as provided herein, any rights as a
shareholder with respect to the Multiple Voting Shares such as, the right
to vote and to receive dividend on such shares.
22. This Agreement shall not be amended, and no provision thereof shall be
waived, except with (i) the consent of any stock exchange upon which the
Subordinate Voting Shares are quoted and/or listed and any other applicable
securities regulatory authorities and (ii) the approval of at least
two-thirds of the votes cast by holders of Subordinate Voting Shares
present or represented at a meeting duly called for the purpose of
considering such amendment or waiver, and of at least one simple majority
of the votes cast by holders of Subordinate Voting Shares, excluding any of
the MV Shareholders and their respective affiliates and any persons who
have an agreement to purchase Multiple Voting Shares on terms which would
constitute a sale or disposition subject to Section 1, other than as
permitted herein.
23. The provisions of this Agreement shall only come into effect
contemporaneously with the issuance of Subordinate Voting Shares to the
public pursuant to the final prospectus of the Corporation dated ___,
2000.
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24. For purposes only of this Agreement and applicable securities legislation,
all parties hereto shall be deemed to be residents of the Province of
Quebec.
25. No provision of this Agreement shall limit the rights of any holders of
Subordinate Voting Shares under applicable law.
26. The Shareholders represent and warrant to the Corporation and the Trustee
that the information contained in the preamble hereto is true in all
material respects.
27. Any notice or other communication made pursuant to or in connection with
this Agreement shall be sufficiently given if it is in writing and, if
mailed by prepaid first-class mail at any time other than during a general
discontinuance of postal service due to strike, lock-out or otherwise,
shall be deemed to have been received 5 Business Days after the post-marked
date thereof, or if telexed or delivered by another form of recorded
communication, shall be deemed to have been received on the next Business
Day following dispatch, or if delivered by hand shall be deemed to have
been received at the time it is delivered. Notices shall be addressed as
follows:
if to a member of the ▇▇▇▇▇▇▇ Family: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
4310 du Cure-▇▇▇▇▇▇
Street ▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
if to GEXFO: GEXFO Investissements
Technologiques inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to Investissements: ▇. ▇▇▇▇▇▇▇ Investissements
Financiers inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to Trust ▇▇▇▇▇▇▇: Fiducie ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Corporation: EXFO Electro-Optical Engineering inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee: CIBC Mellon Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: Corporate Trust Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as the party to whom such notice or communication is
to be given shall have last designated to the party giving the same in the
manner specified in this Section 27.
28. The Shareholders jointly and solidarily release, indemnify and save
harmless the Trustee from all costs, charges, claims, demands, damages,
losses and expenses resulting from the Trustee's performance, in good faith
and without negligence, of its duties under this Agreement. The Trustee
shall not be liable for any error of judgment or for any act done or
omitted by it in good faith, or for any mistake of fact or law, or for
anything which it may do or omit from doing in connection herewith, except
its own negligence and willful misconduct.
The Trustee may seek the advice of legal counsel in the event of any
questions or dispute as to the construction of any of the provisions hereof
or its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in accordance with the opinion and instructions of such
legal counsel. The Trustee shall be entitled to pay such legal counsel
reasonable remuneration. The Trustee shall not be answerable for the
default or misconduct of any agent or legal counsel employed or appointed,
at its discretion, by it if such agent or legal counsel shall have been
selected with reasonable care.
In the event of any disagreement between any of the parties to this
Agreement, resulting in demands or adverse claims being made in connection
with or for any Multiple Voting Shares, the Trustee shall be entitled to
refuse to comply with any demands or claims on it, and in so refusing the
Trustee may make no delivery or other disposition of any Multiple Voting
Shares, and in so doing the Trustee shall not be or become liable in any
way or to any person or party for its failure or refusal to comply with
such conflicting demands or adverse claims until the rights of person or
party shall have been finally adjudicated in a court assuming and having
jurisdiction with respect to the Multiple Voting Shares or all differences
shall have been adjusted by agreement and the Trustee shall have been
notified thereof in writing signed by all persons and parties interested.
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29. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Quebec. The terms "associate" and "affiliate" used
herein shall include any person considered to be an affiliate for the
purposes of the Canada Business Corporation Act. Reference herein to any
applicable securities legislation means securities legislation of the
Province of Quebec in effect at the relevant time, which shall be assumed
to apply.
30. This Agreement shall ensure to the benefit of and be binding upon the
parties hereto and their respective heirs, legal representatives,
successors and assigns, as applicable.
31. This Agreement may be executed in two or more counterparts, all of which
taken together shall constitute one instrument.
32. Time shall be of the essence of this Agreement.
33. Each party hereby irrevocably attorns to the exclusive jurisdiction of the
courts of the Province of Quebec in connection with any disputes which may
result from, arise out of, or relate to this Agreement and may be brought
in such courts. Each party hereby irrevocably waives (and irrevocably
agrees not to raise) any objection which it may now or thereafter have to
the laying of the venue of any proceedings in any such courts and any claim
that any such proceedings have been brought in an inconvenient forum.
Judgment in any such proceedings in such court shall be conclusive and
binding upon the parties and may be enforced in courts of any other
jurisdiction.
34. The parties hereto have required that this Agreement and all documents and
notices related thereto and/or resulting therefrom be drawn up in the
English language. Les parties aux presentes ont exige que la presente
convention ainsi que tous les documents et avis qui s'y rattachent et/ou
qui en decouleront soient rediges en langue anglaise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
_____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
GEXFO INVESTISSEMENTS TECHNOLOGIQUES INC.
Per: ________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ INVESTISSEMENTS FINANCIERS INC.
Per: ________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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FIDUCIE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Per: ________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
EXFO ELECTRO-OPTICAL ENGINEERING INC.
Per: ________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
CIBC MELLON TRUST COMPANY
Per: ________________________
Per: ________________________
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SCHEDULE "A"
MULTIPLE VOTING SHARES
OF THE CORPORATION
DEPOSITED WITH THE TRUSTEE
SHARE NUMBER OF MULTIPLE VOTING
CERTIFICATE SHARES
REGISTERED SHAREHOLDER NUMBER REPRESENTED
--------------------------------------------------------------------------------------------------------
GEXFO Investissements Technologiques inc. [ ] 35,340,000
Fiducie ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ [ ] 1,900,000
▇. ▇▇▇▇▇▇▇ Investissements Financiers inc. [ ] 760,000
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TOTAL: 38,000,000
