EXHIBIT 4.2
AMENDMENT NUMBER ONE
DATED AS OF MARCH 15, 2001
TO
SHARE PURCHASE AGREEMENT
DATED AS OF MARCH 5, 2001
BY AND AMONG
EXFO ELECTRO-OPTICAL ENGINEERING INC.,
EFOS CORPORATION
XXXX XXXXXXX
AND
XXXXX XXXXXX
AMENDMENT NUMBER ONE TO
SHARE PURCHASE AGREEMENT
This AMENDMENT NUMBER ONE (this "AMENDMENT") dated as of March 15, 2001
amends that certain SHARE PURCHASE AGREEMENT (the "AGREEMENT") dated as of March
5, 2001 among EXFO Electro-Optical Engineering Inc., incorporated pursuant to
the CANADA BUSINESS CORPORATIONS ACT (the "PURCHASER"), Xxxx Xxxxxxx, Xxxxx
Xxxxxx and EFOS CORPORATION, a corporation incorporated under the laws of the
Province of Ontario (the "VENDOR"). Defined terms not otherwise defined herein
shall have the meaning ascribed to them in the Agreement.
RECITALS
WHEREAS the Vendor, the Purchaser, Xxxx Xxxxxxx and Xxxxx Xxxxxx wish
to amend the Agreement in order to re-allocate the Cash Consideration and the
Share Consideration in order to take into account the Prior Asset Transactions
and the Prior Corporate Transactions.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth in the Agreement and in this Amendment, the
parties hereto hereby agree as follows:
1. The identification of the parties to the Agreement is hereby amended to
add the following parties to the agreement:
"1466716 Ontario Limited, 1466717 Ontario Limited and 1466718
Ontario Limited."
2. Section 1.1(eeee) is hereby amended in its entirety to read as follows:
"(eeee) "VENDORS" means collectively EFOS Corporation, 1466716
Ontario Limited, 1466717 Ontario Limited and 1466718 Ontario
Limited and "VENDOR" means any one of them."
3. Section 1.1 (gggg) of the Agreement is hereby amended in is entirety to
read as follows:
"(gggg) "Vendor PARTIES" means, collectively, the Vendor, the
Guarantors and each of 1466716 Ontario Limited, 1466717
Ontario Limited and 1466718 Ontario Limited."
4. Unless the context suggests otherwise, the reference to "VENDOR"
wherever it appears in the Agreement shall be modified to read as
"VENDORS".
5. Section 2.1 of the Agreement is amended in its entirety and shall read
as follows:
"2.1 Purchase AND SALE. Subject to the terms and conditions
set forth in this Agreement, the Vendors agree to sell to
Purchaser all of the outstanding shares of Opco. The total
purchase price of the Opco Shares
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shall be an amount equal to 3,700,000 subordinate voting
shares of the Purchaser as set out below (collectively the
"PURCHASE PRICE")."
6. Section 2.2 of the Agreement is amended in its entirety and shall read
as follows:
"2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be
payable at Closing by way of issue by Purchaser to the Vendors
of 3,700,000 subordinate voting shares (the "SHARE
CONSIDERATION") of Purchaser (the "PURCHASER SHARES")
allocated as follows: EFOS Corporation: 1,700,000 Purchaser
Shares; 1466716 Ontario Limited: 1,000,000 Purchaser Shares;
1466717 Ontario Limited: 500,000 Purchaser Shares and 1466718
Ontario Limited: 500,000 Purchaser Shares. If, prior to the
Closing, there is any stock dividend, stock split or other
change in the character or amount of the outstanding shares of
Purchaser, then in such event any and all new, substituted or
additional securities to which the Vendors would have been
entitled by reason of their ownership of the Opco Shares had
the Closing occurred prior to such event shall be considered
Opco Shares for purposes of this Agreement and the
consideration to be received by the Vendors shall be amended
accordingly.
The Share Consideration shall be delivered as follows: (i)
2,000,000 Purchaser Shares shall be delivered at Closing to
the Vendors and (ii) 1,700,000 Purchaser Shares shall be
subject to the terms of a Lock-Up Agreement (as defined
herein), including an amount of 283,325 Purchaser Shares to be
placed into escrow in accordance with terms of the Escrow
Agreement. The Lock-Up Agreement shall provide for, among
others, covenants by the Vendors not to sell, transfer or
assign the Purchaser Shares during the period such Purchaser
Shares are subject to the Lock-Up Agreement. The Lock-Up
Agreement shall also provide for the release of the Purchaser
Shares in equal tranches every six months during the
three-year term of the Lock-Up Agreement."
7. Section 2.5 of the Agreement is amended in its entirety to read as
follows:
"2.5 ROLLOVER. After the Closing, the Purchaser and the
Vendors shall, within the prescribed time periods, separately
execute and deliver joint elections in the prescribed forms to
have the provisions of Section 85 of the INCOME TAX ACT
(Canada) and any other relevant provisions thereof and the
provisions of Section 518 of the TAXATION ACT (Quebec) and any
other relevant provisions thereof apply to the sale and
transfer of all the Opco Shares to the Purchaser.
For the purposes of such elections:
(a) the parties shall elect each of the Vendors' adjusted
cost base of the Opco Shares for tax purposes as the Vendors'
proceeds of disposition and the Purchaser's cost of
acquisition of the Opco Shares for each of the
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Vendors that have not sold by February 22, 2002 all the
Purchaser Shares received as consideration for the Opco Shares
purchased pursuant to this Agreement;
(b) for each of the Vendors that have sold prior to
February 22, 2002 all the Purchaser Shares received as
consideration for the Opco Shares purchased pursuant to this
Agreement, the parties shall elect the fair market value of
the Opco Shares at the Closing Date as each Vendor's proceeds
of disposition and the Purchaser's cost of acquisition of the
Opco Shares."
8. Section 3.4 of the Agreement is hereby amended by deleting the first
three sentences of said section 3.4 and replacing same with the
following:
"The Vendors are registered and beneficial owners of 3,700,000
common shares of Opco, representing 100% of the issued and
outstanding share capital of Opco. The outstanding shares of
Opco are duly and validly authorized and issued as fully paid
and non-assessable and are owned of record by Vendors as set
forth on Schedule 3.4 and represent 100% of the issued and
outstanding share capital of Opco."
9. Each of 1466716 Ontario Limited, 1466717 Ontario Limited and 1466718
Ontario Limited agree to be bound by each representation, warranty and
covenant made by EFOS Corporation, Xxxxx Xxxxxx and Xxxx Xxxxxxx in the
Agreement as if they each had been an original signatory to the
Agreement.
10. This Amendment and the Agreement shall be considered one and the same
agreement.
11. The parties to this Amendment agree to take all actions, including the
execution of additional documents, as may be reasonably requested by
the other parties hereto to effect the intent or purposes of this
Amendment.
12. This Amendment shall be governed in all respects by the provisions of
the Agreement, which shall remain in full force and effect, as modified
by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized signatories as of the date first
indicated above.
EXFO ELECTRO-OPTICAL ENGINEERING INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
EFOS CORPORATION
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
1466716 ONTARIO LIMITED
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Director
1466717 ONTARIO LIMITED
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Director
1466718 ONTARIO LIMITED
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Director