EXHIBIT 4.8
SHARE PURCHASE AGREEMENT
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THIS AGREEMENT is made as of November 2, 2001
BETWEEN: JDS UNIPHASE INC., a corporation
incorporated under the laws of Canada,
having its offices at 000 Xxxx Xxxx Xxxx
Xxxx Xxxxxx, Xxxxxxx, X0X 0X0,
(hereinafter, the "SELLER"); AND:
3905268 CANADA INC., a corporation
incorporated under the laws of Canada,
having its head office at 000 Xxxxx
Xxx., Xxxxxx, Xxxxxx, GIM 3G7,
(hereinafter, the "BUYER");
WHEREAS EXFO Electro-Optical Engineering Inc., the Buyer, the Company,
Xxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxxxxxx, Xxxxxx Xxxxxxxxxx, Xxxxxxx
Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx have entered into
an agreement of merger dated as of August 20, 2001, as amended, (the "AGREEMENT
OF MERGER") to which the Seller has intervened on August 20, 2001;
WHEREAS the Agreement of Merger provides for the purchase by the Buyer
from the Seller of certain shares of the Company held by the Seller, prior to
the closing of the transactions contemplated therein;
WHEREAS the Buyer wishes to purchase the Shares and the Seller has
agreed to sell the Shares to the Buyer, the whole on the terms and conditions
herein set forth;
IN CONSIDERATION of the mutual covenants, agreements, representations and
warranties contained in this Agreement, and of other good and valuable
consideration (the receipt and sufficiency of which are acknowledged by each
Party), the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. In this Agreement,
"AGREEMENT" means this share purchase agreement including all attached
schedules, as the same may be supplemented, amended, restated or
replaced from time to time;
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"APPLICABLE LAW" means any domestic statute, law, ordinance,
regulation, by-law (zoning or otherwise) or any order, judgment,
injunction, decree, award or writ of any court, tribunal, arbitrator,
Governmental Authority, or other Person having jurisdiction, that
applies to the Seller, the Buyer or the Company;
"ARTICLES" means the articles of incorporation, amendment, continuance
and amalgamation, as the case may be, of the Company;
"BUSINESS DAY" means a day other than a Saturday or Sunday on which
Canadian chartered banks are open for the transaction of domestic
business in Montreal, Quebec;
"CLAIMS" means any demand, action, cause of action, damage, loss, cost,
liability, expense or requirements, governmental or otherwise,
including the cost of legal representation in respect thereof and any
interest or penalty arising in connection therewith;
"CLOSING" means the completion of the sale to, and purchase by, the
Buyer of, the Shares and the completion of all other transactions
contemplated by this Agreement which are to occur contemporaneously
with the purchase and sale of the Shares;
"CLOSING DATE" means the date of execution of this Agreement, which
will take place at the offices of Fasken Xxxxxxxxx DuMoulin LLP, Stock
Exchange Tower, Suite 3400, 000 Xxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxx.
"CLOSING DOCUMENT" means any document delivered at or subsequent to the
Closing Date as provided in or pursuant to this Agreement;
"COMPANY" means Avantas Networks Corporation;
"ENCUMBRANCE" means any security interest, mortgage, lien, hypothec,
pledge, hypothecation, assignment, charge, deemed trust, voting trust
or pooling agreement with respect to securities, an adverse claim or
any other right or option, affecting the Shares;
"GOVERNMENTAL AUTHORITY" means any domestic government whether federal,
provincial or municipal and any governmental agency, governmental
authority, governmental tribunal, governmental commission or regulatory
authority of any kind whatever;
"INCLUDING" means "including without limitation" and the term
"including" shall not be construed to limit any general statement which
it follows to the specific or similar items or matters immediately
following it;
"LIABILITIES" means all costs, expenses, charges, debts, liabilities
claims, demands and obligations, whether primary or secondary, direct
or indirect, fixed, contingent, absolute
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or otherwise, under or in respect of any contract, agreement,
arrangement, lease, commitment or undertaking, applicable laws and
taxes;
"PARTIES" means the Buyer and the Seller collectively, and "Party"
means any one of them;
"PERSON" shall be broadly interpreted and includes an individual, body
corporate, partnership, joint venture, trust, association,
unincorporated organization, the Crown, any Governmental Authority or
any other entity recognized by law;
"PURCHASE PRICE" means the purchase price to be paid by the Buyer to
the Seller as provided in Section 2.2;
"SHAREHOLDER'S AGREEMENT" means the shareholder's agreement among the
shareholders of the Company dated as of December 21, 2000;
"SHARES" means [4,678,875 series B1 Voting Preferred Shares and 584,859
series B2 Non Voting Preferred Shares] in the share capital of the
Company;
1.2 HEADINGS. The division of this Agreement into articles, sections,
subsections and schedules and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement. The article, section, subsection and
schedule headings in this Agreement are not intended to be full or
precise descriptions of the text to which they refer and are not to be
considered part of this Agreement. All uses of the words "hereto",
"herein", "hereof", "hereby" and "hereunder" and similar expressions
refer to this Agreement and not to any particular section or portion of
it. References to an Article, Section, Subsection or Schedule refer to
the applicable article, section, subsection or schedule of this
Agreement.
1.3 NUMBER AND GENDER. In this Agreement, words in the singular include the
plural and vice-versa and words in one gender include all genders.
1.4 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and
supersedes all prior agreements, negotiations, discussions and
understandings, written or oral, between the Parties with the exception
of applicable terms of the Agreement of Merger. There are no
representations, warranties, conditions, other agreements or
acknowledgements, whether direct or collateral, express or implied,
that form part of or affect this Agreement, or which induced any Party
to enter into this Agreement or on which reliance is placed by any
Party, except as specifically set forth in this Agreement, in the
Closing Documents or in the Agreement of Merger.
1.5 AMENDMENT. This Agreement may be amended, modified or supplemented only
by a written agreement signed by all Parties.
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1.6 WAIVER OF RIGHTS. Any waiver of, or consent to depart from the
requirements of any provision of this Agreement shall be effective only
if it is in writing and signed by the Party giving it, and only in the
specific instance and for the specific purpose for which it has been
given. No failure on the part of any Party to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver of
such right. No single or partial exercise of any such right shall
preclude any other or further exercise of such right or the exercise of
any other right.
1.7 APPLICABLE LAW. This Agreement shall be governed by, and interpreted
and enforced in accordance with the laws in force in the Province of
Quebec (excluding any conflict of laws, rule or principle which might
refer such interpretation to the laws of another jurisdiction).
1.8 CURRENCY. Unless specified otherwise, all statements of or references
to dollar amounts in this Agreement are to lawful money of the United
States of America.
1.9 PERFORMANCE ON HOLIDAYS. If any action is required to be taken pursuant
to this Agreement on or by a specified date which is not a Business
Day, then such action shall be valid if taken on or by the next
succeeding Business Day.
ARTICLE 2
PURCHASE AND SALE OF SHARES AND PROMISSORY NOTE
2.1 PURCHASE AND SALE OF SHARES. The Buyer hereby purchases the Shares and
the Seller hereby irrevocably and unconditionally sells, assigns,
transfers and conveys the Shares to the Buyer all as provided in this
Agreement.
2.2 PURCHASE PRICE. The Purchase Price for the Shares is US$31,054,980.54,
payable at Closing by way of a non-interest bearing promissory note
(the "NOTE"), which Note shall be paid in full upon the completion of
the transactions set forth in the Agreement of Merger.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
In order to induce the Buyer to enter into this Agreement, the Seller represents
and warrants to Buyer the matters set forth below, which shall be true on the
date of execution hereof and on the Closing Date:
3.1 AUTHORISATION. The Seller has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder.
The execution and delivery of this Agreement by the Seller and the
consummation by it of the transactions contemplated hereby have been
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duly authorised by all necessary action on its part, and no further
action is required by the Seller. This Agreement has been duly executed
by the Seller and, assuming this Agreement constitutes a valid and
binding obligation of the Buyer, this Agreement constitutes a valid and
binding agreement of the Seller enforceable against the Seller in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganisation, moratorium and similar
laws of general applicability relating to or affecting creditor's
rights and to general principles of equity, regardless of whether such
enforceability is considered in equity or at law. The Seller, as a
result of executing this Agreement and performing its obligations
hereunder, is not in violation of any of the provisions of its
certificate or incorporation, bylaws or other organisational documents.
3.2 OWNERSHIP OF COMPANY SHARES. The Seller has the right, power and
authority to sell, transfer, assign, vote and deliver the Shares being
sold by it hereunder. Immediately prior to the delivery of the Shares
to the Buyer, the Seller will be the sole registered and beneficial
owner of the Shares it holds and have good and valid title to such
Shares, free and clear of all Encumbrances and restrictions on transfer
other than those in the articles of the Company and which shall have
been complied with at Closing. Except for the Shareholders' Agreement,
there are no outstanding options, warrants, convertible securities,
calls, rights, commitments, preemptive rights or agreements or
instruments or understandings of any character to which the Seller is a
party, obligating the Seller to deliver or sell, or cause to be
delivered or sold, contingently or otherwise, such Shares. Except for
the Shareholders' Agreement, there are no voting trust agreements or
other contracts, agreements, arrangements, commitments, plans or
understandings to which the Seller is a party restricting or otherwise
relating to voting, dividend or other rights with respect to the
Shares.
3.3 CONSENTS AND APPROVALS. No consent, approval, order or authorisation
of, or registration, declaration or filing, is required by or with
respect to the Seller in connection with the execution and delivery of
this Agreement by the Seller or the consummation by it of the
transactions contemplated by this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer hereby represents and warrants to the Seller, as of the date hereof, as
follows:
4.1 AUTHORIZATION. The Buyer has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder.
The execution and delivery of this Agreement by the Buyer and the
consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary action on its part and no further
action is required by the Buyer. This Agreement has been duly executed
by the Buyer and, assuming this
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Agreement constitutes a valid and binding obligation of the Seller,
this Agreement constitutes a valid and binding agreement of the Buyer
enforceable against the Buyer in accordance with its terms, subject,
however, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity, regardless of whether such enforceability is
considered in equity or at law.
4.2 CONSENTS AND APPROVALS. No consent, approval, order or authorization
of, or registration, declaration or filing with respect to the Buyer in
connection with the execution and delivery of this Agreement by the
Buyer or the consummation by the Buyer of the transactions contemplated
by this Agreement.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by the Seller or the Buyer in this Agreement shall
terminate on the date which is 90 days after the date EXFO
Electro-Optical Engineering Inc. has publicly released its audited
financial statements for the year ended August 31, 2003 except to the
extent that, during such period, any Party shall have given detailed
notice (to the extent feasible) to the other Party of a specified Claim
in respect of any representation or warranty in which case such
representation and warranty with respect to such Claim shall continue
in full force and effect until the final determination of such Claim.
ARTICLE 6
INDEMNIFICATION
6.1 INDEMNIFICATION BY THE SELLER. The Seller shall be liable to the Buyer
and shall defend, indemnify and hold harmless the Buyer against any and
all Claims incurred or suffered by or imposed upon the Buyer or the
Company arising directly or indirectly out of:
6.1.1 the breach of any representation or warranty of the Seller
contained in or contemplated by this Agreement or in any other
agreement or document required to be furnished by the Seller
to the Buyer hereunder,; and;
6.1.2 the breach or non-fulfilment of any agreement, covenant,
undertaking or obligation of the Seller contained in this
Agreement.
6.2 INDEMNIFICATION BY THE BUYER. The Buyer shall be liable to the Seller
and shall defend, indemnify and hold harmless the Seller against any
and all Claims incurred or suffered by or imposed upon any of the
Seller arising directly or indirectly out of:
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6.2.1 the breach of any representation or warranty of the Buyer
contained in or contemplated by this Agreement or in any other
agreement or document required to be furnished by the Buyer to
the Seller hereunder; and
6.2.2 the breach or non-fulfilment of any agreement, covenant,
undertaking or obligation of the Buyer contained in this
Agreement.
6.3 THIRD PARTY CLAIMS. With respect to third party claims, the following
indemnification procedures shall apply:
6.3.1 promptly upon receipt by the Buyer or the Company or the
Seller (in this paragraph referred to as the "INDEMNITEE"), as
the case may be, of notice of any demand or statement by or on
behalf of any person or entity other than the Buyer or the
Seller which, if maintained or enforced, will or might result
in any Claim of the nature described in Section 6.1 or 6.2
("THIRD-PARTY CLAIM") in respect of which the Indemnitee
proposes to demand indemnification from the Buyer or the
Seller (in this section referred to as the "INDEMNITOR"), as
the case may be, pursuant to the provisions hereof, the
Indemnitee shall give written notice to that effect to the
Indemnitor with reasonable promptness;
6.3.2 the Indemnitor shall have the right by written notice to the
Indemnitee not later than 30 days after giving of the notice
described in Subsection 6.3.1 to assume the control of the
defence, compromise or settlement of the Third-Party Claim,
provided that such assumption shall, by its terms, be without
cost to the Indemnitee and shall not limit in any way the
Indemnitee's right to indemnification pursuant to the
provisions hereof;
6.3.3 upon the assumption of control by the Indemnitor as aforesaid,
the Indemnitor shall, at its expense, diligently proceed with
the defence, compromise or settlement of the Third-Party Claim
at Indemnitor's sole expense, including the retention of
counsel, and, in connection therewith, the Indemnitee shall
cooperate fully, but at the sole expense of the Indemnitor, to
make available to the Indemnitor all pertinent information and
witnesses under the Indemnitee's control, make such
assignments and take such other steps as in the opinion of
counsel for the Indemnitor are necessary to enable the
Indemnitor to conduct such defence;
6.3.4 the final determination of any such Third-Party Claim,
including all related costs and expenses, shall be binding and
conclusive upon the Parties hereto, as to the validity or
invalidity, as the case may be, of such Third-Party Claim
against the Indemnitor hereunder. Notwithstanding any
provision of this Section 6.3, the Indemnitor may not consent
to any settlement of a Third-Party Claim if the terms of such
settlement require the Indemnitee to act or refrain from
acting, without the prior consent of the Indemnitee;
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6.3.5 should the Indemnitor fail to give notice to the Indemnitee as
provided in Subsection 6.3.2, the Indemnitee shall be entitled
to make such settlement of the Third-Party Claim as in its
sole discretion may appear advisable, and such settlement or
any other final determination of the Third-Party Claim shall
be binding upon the Indemnitor.
6.4 EXCLUSIVE REMEDY FOR DAMAGES. The rights of indemnity set forth in this
Article 6 are the sole and exclusive remedy of each Party in respect of
a Claim by any Party hereunder or under any Closing Document, provided
however that nothing herein shall limit a Party's recourse to any
equitable remedies. Article 6 shall remain in full force and effect in
all circumstances and shall not be terminated by any breach
(fundamental, negligent or otherwise) by any Party of its
representations, warranties or covenants hereunder or under any Closing
Document or by any termination or rescission of this Agreement or any
Closing Document or any part hereof or thereof.
ARTICLE 7
CLOSING DOCUMENTS
7.1 CLOSING DOCUMENTS. In addition to any agreements or deeds required to
give effect to the transfer of the Shares in favour of the Buyer, the
Parties agree to enter into or to deliver the following agreements and
documents at the Closing Date, which agreements and documents shall be
satisfactory to the Buyer and the Seller and their respective counsel,
acting reasonably:
7.1.1 the Note representing the amount of the Purchase Price;
7.1.2 share certificates representing the Shares duly endorsed by
the Seller in blank for transfer to the Buyer;
7.1.3 legal opinion of counsel of each of the Company and the Seller
satisfactory to the Buyer, acting reasonably.
ARTICLE 8
POST-CLOSING DOCUMENTS
8.1 The Parties agree to enter into or deliver the following agreements and
documents upon the completion of the transactions set forth in the
Agreement of Merger: certified cheques or bank drafts drawn by the
Buyer, or on its behalf, and payable to the order of the Seller in
payment of the Note at Closing, and a receipt and release therefor.
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ARTICLE 9
GENERAL
9.1 EXPENSES. Each Party shall pay all expenses it incurs in authorizing,
preparing, executing and performing this Agreement and the transactions
contemplated hereunder, whether or not the Closing occurs, including
all fees and expenses of its legal counsel, accountants or other
representatives or consultants.
9.2 COMMISSION. Each Party represents and warrants to the other Party that
such other Party will not be liable for any brokerage commission,
finder's fee or other similar payment in connection with the
transactions contemplated hereby because of any action taken by, or
agreement or understanding reached by, the first Party.
9.3 TIME. Time is of the essence of each provision of this Agreement.
9.4 NOTICES. Any demand, notice or other communication to be given in
connection with this Agreement will be given in writing and will be
given by personal delivery, by registered mail or by electronic means
of communication addressed to the recipient as follows:
To the Seller:
JDS UNIPHASE INC. INC.
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx Xxxxx
Fax No.: (000) 000-0000
To the Buyer:
3905268 CANADA INC.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxx
X0X 0X0
ATTENTION: XXXXXXX XXXXXXX, PRESIDENT
Fax No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxx
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FASKEN XXXXXXXXX XXXXXXXX
Stock Exchange Tower
Suite 3400
000 Xxxxx-Xxxxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
or to such other address, individual or electronic communication number
as may be designated by notice given by either party to the other. Any
demand, notice or other communication given by personal delivery will
be conclusively deemed to have been given on the day of actual delivery
thereof and, if given by registered mail, on the fifth Business Day
following the deposit thereof in the mail, and, if given by electronic
communication, on the day of transmittal thereof if given during the
normal business hours of the recipient and on the Business Day during
which such normal business hours next occur if not given during such
hours on any day. If the party giving any demand, notice or other
communication knows or ought reasonably to know of any difficulties
with the postal system that might affect the delivery of mail, any such
demand, notice or other communication may not be mailed but must be
given by personal delivery or by electronic communication.
9.5 PUBLIC ANNOUNCEMENTS. From the date of this Agreement until the earlier
of the Closing or the termination of this Agreement, no party hereto
will issue or cause the publication of any press release or other
public announcement with respect to this Agreement or the transactions
contemplated hereby without the prior consent of Buyer (in the case of
the Seller) or the Seller (in the case of Buyer), which consent shall
not be unreasonably withheld; PROVIDED, HOWEVER, that: (a) nothing
herein will prohibit either party from issuing or causing publication
of any such press release or public announcement to the extent that
such party's counsel reasonably determines such action to be required
by law, or the regulations of any government agency or the exchanges or
markets on which shares of the Seller of the Buyer are traded, in which
case the party making such determination will, to the greatest extent
practicable in light of the circumstances, use best efforts to allow
the other party reasonable time to comment on such release or
announcement in advance of its issuance; and (b) Buyer and the Seller
may disclose this Agreement and the transactions contemplated hereby to
third parties in connection with securing consents of such third
parties and in connection with any permits, approvals, filings or
consents required by law to be obtained.
9.6 ASSIGNMENT. Neither Party may assign any rights or benefits under this
Agreement, including the benefit of any representation or warranty, to
any Person. Each Party agrees to perform its obligations under this
Agreement itself, and not to arrange in any way for any other Person to
perform those obligations. No assignment of benefits or arrangement for
substituted performance by one Party shall be of any effect against the
other Party except to the extent that other Party has consented to it
in writing. Subject to the foregoing, this Agreement shall enure to the
benefit of and be binding upon the Parties
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and their respective successors (including any successor by reason of
amalgamation or statutory arrangement of any Party).
9.7 FURTHER ASSURANCES. Each Party shall do such acts and shall execute
such further documents, conveyances, deeds, assignments, transfers and
the like, and will cause the doing of such acts and will cause the
execution of such further documents as are within its power as any
other Party may in writing at any time and from time to time reasonably
request be done and or executed, in order to give full effect to the
provisions of each Closing Document.
9.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts. Each executed counterpart shall be deemed to be an
original. All executed counterparts taken together shall constitute one
agreement.
TO WITNESS their agreement, the Parties have duly executed this Agreement at
Montreal, Quebec, as of the date indicated hereinabove.
JDS UNIPHASE INC.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: Vice President
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3905268 CANADA INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: President
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