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EXHIBIT 10.13
FORM OF REGISTRATION RIGHTS AGREEMENT
among
EXFO ELECTRO-OPTICAL ENGINEERING INC.,
GEXFO INVESTISSEMENTS TECHNOLOGIQUES INC.,
G. LAMONDE INVESTISSEMENTS FINANCIERS INC.,
FIDUCIE GERMAIN LAMONDE
and
MR. GERMAIN LAMONDE
Dated as of June _, 2000
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TABLE OF CONTENTS
Page
1. Certain Definitions..................................................... 1
1.1. "Canadian Securities Laws".................................... 1
1.2. "Subordinate Voting Shares"................................... 1
1.3. "Multiple Voting Shares"...................................... 2
1.4. "Multiple Voting Share Permitted Transferee".................. 2
1.5. "Commission".................................................. 2
1.6. "Exchange Act"................................................ 2
1.7. "Fair Market Value"........................................... 2
1.8. "Holder" or "Holders"......................................... 2
1.9. "Person"...................................................... 2
1.10. "Registrable Securities"...................................... 3
1.11. "Securities Act".............................................. 3
1.12. "Voting Shares"............................................... 3
2. Contravention of Canadian Securities Laws............................... 3
3. Registration Rights..................................................... 3
3.1. Demand Registration........................................... 3
3.2. Piggyback Registration........................................ 6
3.3. Allocation of Securities Included in Registration Statement... 7
3.4. Registration Procedures....................................... 8
3.5. Registration Expenses......................................... 14
3.6. Certain Limitations on Registration Rights.................... 14
3.7. Limitations on Sale or Distribution of Other Securities....... 15
3.8. No Required Sale.............................................. 15
3.9. Indemnification............................................... 16
4. Underwritten Offering................................................... 19
4.1. Requested Underwritten Offering............................... 19
4.2. Piggyback Underwritten Offering............................... 20
5. General................................................................. 20
5.1. Adjustments Affecting Registrable Securities.................. 20
5.2. Rule 144...................................................... 20
5.3. Preparation; Reasonable Investigation......................... 21
5.4. Nominees for Beneficial Owners................................ 21
5.5. Amendments and Waivers........................................ 21
5.6. Notices....................................................... 21
5.7. Miscellaneous................................................. 22
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Page
5.8. No Inconsistent Agreements.................................... 23
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June [o], 2000 (this
"Agreement"), among EXFO ELECTRO-OPTICAL ENGINEERING INC., a company formed
pursuant to the Canada Business Corporations Act (the "Company"), GEXFO
INVESTISSEMENTS TECHNOLOGIQUES INC. ("GEXFO"), G. LAMONDE INVESTISSEMENTS
FINANCIERS INC. ("GLIF"), FIDUCIE GERMAIN LAMONDE ("FGL") and MR. GERMAIN
LAMONDE ("Mr. Lamonde"). GEXFO, GLIF, FGL and Mr. Lamonde and their permitted
assignees are collectively referred to herein as the "Lamonde Group."
This Agreement is made in connection with the initial public offering (the
"IPO") by the Company of Subordinate Voting Shares (as defined below). Members
of the Lamonde Group hold or from time to time will hold Multiple Voting Shares
(as defined below), which are convertible at any time at the option of the
holder into Subordinate Voting Shares. In connection with the IPO, the Company
has agreed to grant registration rights in the United States to the members of
the Lamonde Group with respect to the Registrable Securities (as defined below),
on the terms and subject to the conditions set forth in this Agreement.
Accordingly, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
1.1. "Canadian Securities Laws" means Canadian provincial securities
laws, including, without limitation, the Securities Act (British
Columbia), the Securities Act (Alberta), The Securities Act, 1988
(Saskatchewan), the Securities Act (Manitoba), the Securities Act
(Ontario), the Securities Act (Quebec), the Security Frauds
Prevention Act (New Brunswick), the Securities Act (Nova Scotia),
the Securities Act (Prince Edward Island), the Securities Act,
1990 (Newfoundland), and any and all regulations, policy
statements, rules, blanket orders, administrative practices and
general decisions thereunder, as the same may be amended and
replaced from time to time.
1.2. "Subordinate Voting Shares" means the Subordinate Voting Shares
of the Company and any and all securities of any kind whatsoever
of the Company which may be issued after the date hereof in
respect of, or in exchange for, Subordinate Voting Shares
pursuant to an amalgamation, consolidation, share subdivision,
share consolidation, share dividend or recapitalization of the
Company or otherwise, including Subordinate Voting Shares issued
upon conversion of any Multiple
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Voting Shares whether at the option of the holder of such
Multiple Voting Shares or otherwise.
1.3. "Multiple Voting Shares" means the Multiple Voting Shares of the
Company and any and all securities of any kind whatsoever of the
Company which may be issued after the date hereof in respect of,
or in exchange for, Multiple Voting Shares pursuant to an
amalgamation, consolidation, share subdivision, share
consolidation, share dividend or recapitalization of the Company
or otherwise.
1.4. "Multiple Voting Share Permitted Transferee" includes only those
persons who are permitted transferees under that certain Trust
Agreement, dated June [o], 2000, among the Company, the Lamonde
Group and CIBC Mellon Trust Company, as trustee.
1.5. "Commission" means the U.S. Securities and Exchange Commission.
1.6. "Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
1.7. "Fair Market Value" means (i) if the Subordinate Voting Shares
are listed or admitted to trading on any national securities
exchange in the United States, the average of the closing prices
of the Subordinate Voting Shares on the principal securities
exchange in the United States on which the Subordinate Voting
Shares are traded for the 30 consecutive trading days immediately
preceding the date on which such determination is to be made,
(ii) if the Subordinate Voting Shares are not then listed or
admitted to trading on any such national securities exchange, the
average of the last reported sale prices (regular session) of the
Subordinate Voting Shares as reported by the Nasdaq Stock Market
("Nasdaq") for the 30 consecutive trading days immediately
preceding the date on which such determination is made (or, if no
sales have occurred during such period, the average of the
reported high bid and low asked prices), and (iii) if the
Subordinate Voting Shares are not then listed or admitted to
trading on any such national securities exchange and no such
reported sale price or bid and asked prices are available from
Nasdaq, the value as determined in good faith by the Company's
board of directors.
1.8. "Holder" or "Holders" means any party who is a signatory to this
Agreement and any party who shall hereafter acquire and hold
Registrable Securities and to whom rights have been assigned
under this Agreement pursuant to Section 5.7(a) hereof.
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1.9. "Person" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or
other entity, whether acting in an individual, fiduciary or other
capacity.
1.10. "Registrable Securities" means any Subordinate Voting Shares held
by any Holder and any Subordinate Voting Shares issued or
issuable in respect of any Multiple Voting Shares or other
securities held by any Holder. As to any particular Registrable
Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the
sale of such securities shall have been declared effective under
the Securities Act and such securities shall have been disposed
of in accordance with such registration statement or (ii) such
securities shall have been sold (other than in a privately
negotiated sale) pursuant to Rule 144 (or any successor
provision) under the Securities Act.
1.11. "Securities Act" means the U.S. Securities Act of 1933, as
amended.
1.12. "Voting Shares" means the Subordinate Voting Shares and Multiple
Voting Shares, collectively, and any and all securities of any
kind whatsoever of the Company which may be issued after the date
hereof in respect of, or in exchange for, Voting Shares of the
Company pursuant to an amalgamation, consolidation, share
subdivision, share consolidation, share dividend or
recapitalization of the Company or otherwise.
2. Canadian Securities Law Matters.
The Company shall use its reasonable best efforts to prepare or obtain any
prospectus, registration or other exemptions in Canada which, in the reasonable
opinion of counsel to the Company, are necessary, or would facilitate the
Company's ability, to honor any registration rights hereunder. The Company shall
not be obligated to respect any registration rights hereunder to the extent that
such registration rights would contravene any Canadian Securities Laws.
3. Registration Rights.
3.1. Demand Registration.
(a) (i) Subject to Section 3.1(b) below, at any time and
from time to time after the IPO, the Lamonde
Group, acting together through one member of the
Lamonde Group (Mr. Lamonde or his designee) shall
have the right to require the Company to register
under the Securities Act and any applicable state
securities or
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"blue sky" laws all or part of their Registrable
Securities, by delivering a written request
therefor to the Company specifying the number of
Registrable Securities to be included in such
registration and the intended method of
distribution thereof. All requests pursuant to
this Section 3.1(a)(i) are referred to herein as
"Demand Registration Requests," and the
registrations requested are referred to herein as
"Demand Registrations." As promptly as
practicable, but no later than ten days after
receipt of a Demand Registration Request, the
Company shall give written notice of such Demand
Registration Request to all Holders of record of
Registrable Securities.
(ii) The Company, subject to Sections 3.3 and 3.6
below, shall include in a Demand Registration (A)
the Registrable Securities of the Holder(s) which
requested such registration and (B) the
Registrable Securities of any Holder which shall
have made a written request to the Company for
registration thereof (which request shall specify
the maximum number of Registrable Securities
intended to be disposed of by such Holder) within
30 days after the receipt of written notice
pursuant to clause (i) (or 15 days if, at the
request of the Holder(s) which requested such
registration, the Company states in such written
notice or gives telephonic notice to all Holders,
with written confirmation to follow promptly
thereafter, that such registration will be on
Form S-3, Form F-3 or Form F-10 (or equivalent
registration forms then in effect)).
(iii) The Company shall, as expeditiously as possible
following a Demand Registration Request, use its
reasonable best efforts to (A) effect such
registration under the Securities Act (including,
without limitation, by means of (i) a shelf
registration pursuant to Rule 415 under the
Securities Act if so requested and if the Company
is then eligible to use such a registration or
(ii) a registration under the Multi-jurisdictional
Disclosure System ("MJDS") if so requested and if
the Company is then eligible to use such
registration) of the Registrable Securities which
the Company has been so requested to register, for
distribution in accordance with such intended
method of distribution and (B) if requested by the
Holder(s) which requested such registration,
obtain acceleration of the effective date of the
registration statement relating to such
registration.
(b) The demand registration rights granted to the Holders in
Section 3.1(a) are subject to the following limitations: (i)
each Demand Registration must include Registrable Securities
having an aggregate market value of at least
U.S.$10,000,000, which market value shall be determined by
multiplying the number of Registrable Securities to be
included in such Demand Registration by the Fair Market
Value determined as of the date the Demand Registration
Request in respect of such Demand Registration is made;
provided that the limitations set forth in this clause
(i) shall not be in effect at any time the Holders'
Registrable Securities may not be sold pursuant to Rule 144
under the Securities Act because of the Company's failure to
comply with the information requirements thereunder, unless
at such time, the
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Company's outside counsel (which shall be reasonably
acceptable to Mr. Lamonde if such Holder is a member of the
Lamonde Group) delivers a written opinion of counsel to such
Holder proposing to register Registrable Securities to the
effect that such Holder's Registrable Securities may be
publicly offered and sold without registration under the
Securities Act); (ii) the Lamonde Group may only make a
demand for registration pursuant to Section 3.1(a)(i) once
within any twelve consecutive month period; (iii) the
Company shall not be required to cause a registration
pursuant to Section 3.1(a)(i) to be declared effective
within a period of 180 days after the effective date of any
other registration statement of the Company effected in
connection with an underwritten offering by the Company;
(iv) if the Board of Directors of the Company, in its good
faith judgment, determines that any registration of
Registrable Securities should not be made or continued
because it would materially interfere with any material
financing, acquisition, corporate reorganization or
amalgamation or other transaction involving the Company or
any of its subsidiaries (a "Valid Business Reason"), (A) the
Company may postpone filing a registration statement
relating to a Demand Registration Request until such Valid
Business Reason no longer exists, but any such delay cannot
exceed three months, and (B) in case a registration
statement has been filed relating to a Demand Registration
Request, if the Valid Business Reason has not resulted from
actions taken by the Company, the Company may cause such
registration statement to be withdrawn and its effectiveness
terminated or may postpone amending or supplementing such
registration statement, and the Company shall give written
notice of its determination to postpone or withdraw a
registration statement and of the fact that the Valid
Business Reason for such postponement or withdrawal no
longer exists, in each case, promptly after the occurrence
thereof; and (v) from and after such time as members of the
Lamonde Group beneficially own, in the aggregate, less than
10% of the outstanding Voting Shares, the Company shall only
be required to effect one Demand Registration at the request
of the Lamonde Group; provided, that any Demand Registration
requested by the Lamonde Group at such time shall not count
as the one Demand Registration permitted by this subclause
(v) if, immediately after giving effect to such
registration, and due to the allocation provisions of
Section 3.3(a) below, the Lamonde Group beneficially owns,
in the aggregate, 5% or more of the outstanding Voting
Shares. If the Company shall give any notice of postponement
or withdrawal of any registration statement, the Company
shall not, during the period of postponement or withdrawal,
register any Voting Shares, other than pursuant to a
registration statement on such form or similar form(s)
solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or an
amalgamation or consolidation. Each Holder of Registrable
Securities agrees that, upon receipt of any notice from the
Company that the Company has determined to withdraw any
registration statement pursuant to clause (iv) above, such
Holder will discontinue its disposition of Registrable
Securities pursuant to such registration statement and, if
so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file
copies, then in such Holder's possession of the prospectus
covering such Registrable Securities that was in effect at
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the time of receipt of such notice. If the Company shall
have withdrawn or prematurely terminated a registration
statement filed under Section 3.1(a) (whether pursuant to
clause (iv) above or as a result of any stop order,
injunction or other order or requirement of the Commission
or any other governmental agency or court), the Company
shall not be considered to have effected an effective
registration for the purposes of this Section 3.1(b) until
the Company shall have filed a new registration statement
covering the Registrable Securities covered by the withdrawn
registration statement and such registration statement shall
have been declared effective and shall not have been
withdrawn. If the Company shall give any notice of
withdrawal or postponement of a registration statement, the
Company shall, at such time as the Valid Business Reason
that caused such withdrawal or postponement no longer exists
(but in no event later than three months after the date of
the postponement), use its reasonable best efforts to effect
the registration under the Securities Act and under
applicable state securities or "blue sky" laws of the
Registrable Securities covered by the withdrawn or postponed
registration statement in accordance with this Section 3.1
(unless the Holder(s) delivering the Demand Registration
Request shall have withdrawn such request, in which case the
Company shall not be considered to have effected an
effective registration for the purposes of this Section
3.1(b)), and such registration shall not be withdrawn or
postponed pursuant to clause (iv) above.
(c) The Company, subject to Sections 3.3 and 3.6 below, may
elect to include in any registration statement and offering
made pursuant to Section 3.1(a), authorized but unissued
Voting Shares or Voting Shares held by the Company as
treasury shares; provided, that such inclusion shall be
permitted only to the extent that it is pursuant to and
subject to the terms of the underwriting agreement or
arrangements, if any, entered into by the Holders exercising
the demand registration rights granted to the Holders under
Section 3.1(a).
(d) The lead managing underwriter (the "Lead Underwriter") for
any Demand Registration shall be selected by the party or
parties making the demand for such registration; provided,
that such underwriter shall be an investment banking firm of
national reputation unaffiliated with such parties and
reasonably satisfactory to the Company.
3.2. Piggyback Registration.
(a) If, at any time, the Company proposes or is required to
register any of its equity securities (including pursuant to
any registration statement which generally registers equity
and debt securities without specifying the type of security
or the amount) under the Securities Act (other than pursuant
to (i) registrations on such form or similar form(s) solely
for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or an
amalgamation or consolidation or (ii) a Demand Registration
under Section 3.1) on a registration
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statement on Form S-1, Form S-2, Form S-3, Form F-1,
Form F-2 or Form F-3 (or an equivalent general registration
form then in effect), whether or not for its own account,
the Company shall give prompt written notice of its
intention to do so to each of the Holders of record of
Registrable Securities. Upon the written request of any
Holder, made within 15 days following the receipt of any
such written notice (which request shall specify the maximum
number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution
thereof), the Company shall, subject to Sections 3.2(b), 3.3
and 3.6 below, use its reasonable best efforts to cause all
such Registrable Securities, the Holders of which have so
requested the registration thereof, to be registered under
the Securities Act and applicable state securities or "blue
sky" laws (with the securities which the Company at the time
proposes to register) to permit the sale or other
disposition by the Holders (in accordance with the intended
method of distribution thereof) of the Registrable
Securities to be so registered. No registration effected
under this Section 3.2(a) shall relieve the Company of its
obligations to effect registrations upon request under
Section 3.1.
(b) If, at any time after giving written notice of its intention
to register any equity securities and prior to the effective
date of the registration statement filed in connection with
such registration, the Company shall determine for any
reason not to register or to delay registration of such
equity securities, the Company may, at its election, give
written notice of such determination to all Holders of
record of Registrable Securities and (i) in the case of a
determination not to register, shall be relieved of its
obligation to register any Registrable Securities in
connection with such abandoned registration, and (ii) in
case of a determination to delay such registration of its
equity securities, shall be permitted to delay the
registration of such Registrable Securities for the same
period as the delay in registering such other equity
securities, in each case, without prejudice, however, to the
rights of Holders under Section 3.1.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration
statement pursuant to this Section 3.2 by giving written
notice to the Company of its request to withdraw; provided,
however, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with
respect to such registration and (ii) such withdrawal shall
be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include Registrable
Securities in the registration as to which such withdrawal
was made.
3.3. Allocation of Securities Included in Registration Statement.
(a) If any requested registration pursuant to Section 3.1
involves an underwritten offering and the Lead Underwriter
shall advise the Company that, in its view, the number of
securities requested to be included in such registration
(including those securities requested by the Company to be
included in such
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registration) exceeds the largest number (the "Section 3.1
Sale Number") that can be sold in an orderly manner in such
offering within a price range acceptable to the Holders of
Registrable Securities proposed to be registered, the
Company shall include in such registration:
(i) all Registrable Securities requested to be
included in such registration by Holders of
Registrable Securities; provided, however, that if
the number of such Registrable Securities exceeds
the Section 3.1 Sale Number, the number of such
Registrable Securities (not to exceed the Section
3.1 Sale Number) to be included in such
registration shall be allocated on a pro rata
basis among all Holders requesting that
Registrable Securities be included in such
registration, based on the number of Registrable
Securities then owned by each Holder requesting
inclusion in relation to the number of Registrable
Securities owned by all Holders requesting
inclusion; and
(ii) to the extent that the number of Registrable
Securities to be included by all Holders is less
than the Section 3.1 Sale Number, securities that
the Company proposes to register.
If, as a result of the proration provisions of this
Section 3.3(a), any Holder shall not be entitled to include all
Registrable Securities in a registration that such Holder has
requested to be included, such Holder may elect to withdraw his
request to include Registrable Securities in such registration or
may reduce the number requested to be included; provided,
however, that (x) such request must be made in writing prior to
the earlier of the execution of the underwriting agreement or the
execution of the custody agreement with respect to such
registration and (y) such withdrawal shall be irrevocable and,
after making such withdrawal, a Holder shall no longer have any
right to include Registrable Securities in the registration as to
which such withdrawal was made.
(b) If any registration pursuant to Section 3.2 involves an
underwritten offering and the Lead Underwriter shall advise
the Company that, in its view, the number of securities
requested to be included in such registration exceeds the
number (the "Section 3.2 Sale Number") that can be sold in
an orderly manner in such registration within a price range
acceptable to the Company, the Company shall include in such
registration:
(i) all Voting Shares or securities convertible into,
or exchangeable or exercisable for, Voting Shares
that the Company proposes to register for its own
account (the "Company Securities"); and
(ii) to the extent that the number of Company
Securities is less than the Section 3.2 Sale
Number, all Registrable Securities requested
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to be included by all Holders; provided, however,
that, if the number of such Registrable Securities
exceeds the Section 3.2 Sale Number less the
number of Company Securities, then the number of
such Registrable Securities included in such
registration shall be allocated on a pro rata
basis based on the number of Registrable
Securities owned by each Holder requesting
inclusion in relation to the number of Registrable
Securities owned by all Holders requesting
inclusion.
3.4. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its reasonable best
efforts to effect or cause the registration of any Registrable
Securities under the Securities Act and applicable state
securities or "blue sky" laws as provided in this Agreement, the
Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement on an appropriate registration form of the
Commission for the disposition of such Registrable
Securities in accordance with the intended method of
disposition thereof, which form (i) shall be selected by the
Company; provided, however, that the Company shall clear a
prospectus under any Canadian Securities Laws and elect to
use an MJDS form if so requested and if the Company is
eligible to use such form and (ii) shall, in the case of a
shelf registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and
such registration statement shall comply as to form in all
material respects with the requirements of the applicable
form and include all financial statements required by the
Commission to be filed therewith, and the Company shall use
its reasonable best efforts to cause such registration
statement to become and remain effective (provided, however,
that before filing a registration statement or prospectus or
any amendments or supplements thereto, or comparable
statements under state securities or "blue sky" laws, the
Company will furnish to the counsel of any Holder
participating in the planned offering and the underwriters,
if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be
subject to the reasonable review and reasonable comment of
such counsel, and the Company shall not file any
registration statement or amendment thereto or any
prospectus or supplement thereto to which the holders of a
majority of the Registrable Securities covered by such
registration statement or the underwriters, if any, shall
reasonably object in writing);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective until the
earlier of (i) such time as all of such Registrable
Securities and other securities have been disposed of in
accordance with the intended methods of disposition by the
sellers thereof as set forth in such registration statement
and (ii) such period (which shall not be required to exceed
150 days in the case of a registration pursuant to Section
3.1 or 120 days in the case of a registration pursuant to
Section 3.2, unless reasonably
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requested by any underwriter pursuant to an underwritten
offering) as any seller of Registrable Securities pursuant
to such registration statement shall reasonably request and
to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all Registrable
Securities covered by such registration statement in
accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration
statement;
(c) as soon as reasonably possible furnish, without charge, to
each seller of such Registrable Securities and each
underwriter, if any, of the securities covered by such
registration statement such number of copies of such
registration statement, each amendment and supplement
thereto (in each case including all exhibits), and the
prospectus included in such registration statement
(including each preliminary prospectus) in conformity with
the requirements of the Securities Act, and other documents,
as such seller and underwriter may reasonably request in
order to facilitate the public sale or other disposition of
the Registrable Securities owned by such seller (the Company
hereby consenting to the use in accordance with all
applicable laws of each such registration statement (or
amendment or post-effective amendment thereto) and each such
prospectus (or preliminary prospectus or supplement thereto)
by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by such
registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration
statement under such state securities or "blue sky" laws as
any sellers of Registrable Securities or the Lead
Underwriter, if any, shall reasonably request, and do any
and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or
underwriter, if any, to consummate the disposition of the
Registrable Securities in any such jurisdiction, except that
in no event shall the Company be required to qualify to do
business as a foreign corporation in any jurisdiction where
it would not, but for the requirements of this paragraph
(d), be required to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) notify each Holder selling Registrable Securities covered by
such registration statement and the Lead Underwriter, if
any: (i) when the registration statement, any pre-effective
amendment, the prospectus or any prospectus supplement
related thereto or post-effective amendment to the
registration statement has been filed and, with respect to
the registration statement or any post-effective amendment,
when the same has become effective; (ii) of any request by
the Commission or any state securities authority for
amendments or supplements to the registration statement or
the prospectus related thereto or for additional
information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that
purpose; (iv) of
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the receipt by the Company of any notification with respect
to the suspension of the qualification of any Registrable
Securities for sale under applicable state securities or
"blue sky" laws or the initiation of any proceeding for such
purpose; (v) of the existence of any fact of which the
Company becomes aware which results in the registration
statement, the prospectus related thereto or any document
incorporated therein by reference containing an untrue
statement of a material fact or omitting to state a material
fact required to be stated therein or necessary to make any
statement therein not misleading; and (vi) if at any time
the representations and warranties contemplated by Section 4
below cease to be true and correct in all material respects
and, if the notification relates to an event described in
clause (v), the Company shall promptly prepare and furnish
to each such seller and each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its
securityholders, as soon as reasonably practicable after the
effective date of the registration statement (and in any
event within 16 months thereafter), an earnings statement
(which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of
the Company's first calendar quarter after the effective
date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal stock
exchange or automated quotation system on which similar
securities issued by the Company are then listed or quoted,
if the listing of such Registrable Securities is then
permitted under the rules of such exchange or automated
quotation system, or (ii) if no similar securities are then
so listed or quoted, cause all such Registrable Securities
to be listed on a national securities exchange or secure
Nasdaq National Market authorization for such shares and,
without limiting the generality of the foregoing, take all
actions that may be required by the Company as the issuer of
such Registrable Securities in order to facilitate the Lead
Underwriter's arranging for the registration of at least two
market makers as such with respect to such shares with the
National Association of Securities Dealers, Inc. (the
"NASD");
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by
such registration statement not later than the effective
date of such registration statement;
<PAGE> 15
12
(i) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other
actions as the designated member of the Lamonde Group
(initially Mr. Lamonde or his designee) shall reasonably
request in order to facilitate the disposition of such
Registrable Securities; provided, that the underwriting
agreement, if any, shall be reasonably satisfactory in form
and substance to the Company. The Holders of the Registrable
Securities which are to be distributed by such underwriters
shall be parties to such underwriting agreement and may, at
their option, require that the Company make to and for the
benefit of such Holders the representations, warranties and
covenants of the Company which are being made to and for the
benefit of such underwriters and which are of the type
customarily provided to institutional investors in secondary
offerings;
(j) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's regular independent
chartered accountants in customary form and covering such
matters as are customarily covered by such opinions and
"cold comfort" letters delivered to underwriters in
underwritten public offerings, which opinion and letter
shall be reasonably satisfactory to the underwriters, if
any, and the designated member of the Lamonde Group
(initially Mr. Lamonde or his designee) and furnish to each
Holder participating in the offering and to each
underwriter, if any, a copy of such opinion and letter
addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the
offering and each underwriter, if any, copies of all
correspondence between the Commission and the Company, its
counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to
the registration statement, other than those portions of any
such correspondence and memoranda which contain information
subject to attorney-client privilege with respect to the
Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such
Registrable Securities covered by such registration
statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all
pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply
all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection
with such registration statement;
(l) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration
statement;
(m) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
<PAGE> 16
13
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters
(taking into account the needs of the Company's businesses
and the requirements of the marketing process) in the
marketing of Registrable Securities in any underwritten
offering;
(o) prior to the filing of any document which is to be
incorporated by reference into the registration statement or
the prospectus (after the initial filing of such
registration statement), provide copies of such document to
counsel to the selling holders of Registrable Securities and
to the underwriters, if any, and make the Company's
representatives reasonably available for discussion of such
document and make such changes in such document prior to the
filing thereof as counsel for such selling holders or
underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and the
underwriters, if any, without charge, at least one signed
copy of the registration statement and any post-effective
amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by
reference);
(q) cooperate with the selling holders of Registrable Securities
and the Lead Underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any
restrictive legends representing the Registrable Securities
to be sold, and cause such Registrable Securities to be
issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale
of Registrable Securities to the underwriters or, if not an
underwritten offering, in accordance with the instructions
of the selling holders of Registrable Securities at least
three business days prior to any sale of Registrable
Securities; and
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate
the disposition of such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 3.4 that each seller of Registrable Securities as
to which any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request; provided, that such information shall be
used only in connection with such registration.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (v) of paragraph (e) of this Section 3.4, such Holder will discontinue
such Holder's disposition of Registrable Securities pursuant to the registration
statement
<PAGE> 17
14
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by paragraph (e) of this
Section 3.4 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the prospectus covering such Registrable Securities
that was in effect at the time of receipt of such notice. In the event the
Company shall give any such notice, the applicable period mentioned in paragraph
(b) of this Section 3.4 shall be extended by the number of days during such
period from and including the date of the giving of such notice to and including
the date when each seller of any Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by paragraph (e) of this Section 3.4.
If any such registration statement or comparable statement under "blue sky"
laws refers to any Holder by name or otherwise as the Holder of any securities
of the Company, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such Holder
and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company or (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any applicable state securities or "blue sky" laws then in force, the
deletion of the reference to such Holder.
3.5. Registration Expenses. The Company shall, whether or not any
registration pursuant to this Agreement becomes effective, pay
all expenses incident to the Company's performance of or
compliance with this Article 3, including (i) Commission, stock
exchange or NASD registration and filing fees and all listing
fees, (ii) fees and expenses of compliance with applicable state
securities or "blue sky" laws and in connection with the
preparation of a "blue sky" survey, including without limitation,
reasonable fees and expenses of "blue sky" counsel, (iii)
printing and engraving expenses, (iv) messenger and delivery
expenses, (v) internal expenses (including, without limitation,
all salaries and expenses of the Company's officers and employees
performing legal and accounting duties), (vi) fees and
disbursements of counsel for the Company, (vii) with respect to
each registration, the fees and disbursements of one Canadian
counsel and one U.S. counsel for the selling Holders (selected by
the Holders making the Demand Registration Request, in the case
of a registration pursuant to Section 3.1, and selected by the
Holders of a majority of the Registrable Securities included in
such registration, in the case of a registration pursuant to
Section 3.2, (viii) fees and disbursements of all independent
chartered accountants (including the expenses of any audit and/or
"cold comfort" letter) and fees and expenses of other persons,
including special experts, retained by the Company and
<PAGE> 18
15
(ix) any other fees and disbursements of underwriters, if any,
customarily paid by issuers or sellers of securities.
Notwithstanding the foregoing, (i) the provisions of this Section
3.5 shall be deemed amended to the extent necessary to cause
these expense provisions to comply with applicable laws and
regulations and stock exchange rules and (ii) in connection with
any registration hereunder, each Holder of Registrable Securities
being registered shall pay all underwriting discounts and
commissions and any capital gains, income or transfer taxes, if
any, attributable to such Holder's Registrable Securities.
3.6. Certain Limitations on Registration Rights. In the case of any
registration under Section 3.1 pursuant to an underwritten
offering, or in the case of a registration under Section 3.2 if
the Company has determined to enter into an underwriting
agreement in connection therewith, all Registrable Securities to
be included in such registration shall be subject to an
underwriting agreement and no person may participate in such
registration unless such person agrees to sell such person's
securities on the basis provided therein and completes and/or
executes all questionnaires, indemnities, lock-ups, underwriting
agreements and other documents (other than powers of attorney),
in each case in customary form and substance, which must be
executed in connection therewith.
3.7. Limitations on Sale or Distribution of Other Securities.
(a) If requested in writing by the Company or the Lead
Underwriter, if any, of any registration effected pursuant
to Section 3.1 or 3.2, each Holder of Registrable Securities
agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities
Act, of any Registrable Securities, or of any other equity
security of the Company or of any security convertible into
or exchangeable or exercisable for any equity security of
the Company (other than as part of such underwritten public
offering) during the time period reasonably requested by the
Lead Underwriter, not to exceed 180 days, and the Company
hereby also so agrees (except that the Company may effect
any sale or distribution of any such securities pursuant to
a registration on such form or similar form(s) solely for
registration in connection with an employee benefit plan or
dividend reinvestment plan or a merger, amalgamation or
consolidation) and agrees to use its reasonable efforts to
cause each holder of any equity security or of any security
convertible into or exchangeable or exercisable for any
equity security of the Company purchased from the Company at
any time other than in a public offering so to agree.
(b) The Company hereby agrees that if it shall previously have
received a request for registration pursuant to Section 3.1
or 3.2, and if such previous registration shall not have
been withdrawn or abandoned, the Company shall not, without
the prior written consent of the Lead Underwriter of such
previous registration, effect any registration of any of its
securities under the Securities Act
<PAGE> 19
16
(other than a registration on such form or similar form(s)
solely for registration in connection with an employee
benefit plan or dividend reinvestment plan or a merger,
amalgamation or consolidation) or under any applicable state
securities or "blue sky" laws, whether or not for sale for
its own account, until a period 180 days shall have elapsed
from the effective date of such previous registration and
the Company shall so provide in any registration rights
agreements hereafter entered into with respect to any of its
securities.
3.8. No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to
sell any Registrable Securities pursuant to any effective
registration statement.
3.9. Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 3,
the Company will, and hereby does, indemnify and hold
harmless, to the fullest extent permitted by law, the seller
of any Registrable Securities covered by such registration
statement, its directors, officers, fiduciaries, employees,
trustees and shareholders or general and limited partners
(and the directors, officers, employees and shareholders
thereof), each other Person who participates as an
underwriter in the offering or sale of such securities, each
officer, director, employee, shareholder or partner of such
underwriter and each other Person, if any, who controls such
seller or any such underwriter within the meaning of the
Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) in respect thereof
("Claims") and expenses (including reasonable fees of
counsel and any amounts paid in any settlement effected with
the Company's consent, which consent shall not be
unreasonably withheld or delayed) to which each such
indemnified party may become subject under the Securities
Act or otherwise, insofar as such Claims or expenses arise
out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any
registration statement under which such securities were
registered under the Securities Act or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or
supplement thereto, together with the documents incorporated
by reference therein, or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or (iii) any violation by the Company of any
U.S. federal, state or common law rule or regulation
applicable to the Company and relating to action required of
or inaction by the Company in connection with any such
registration, and the Company will reimburse any such
indemnified party for any legal or other expenses reasonably
incurred by such indemnified party in
<PAGE> 20
17
connection with investigating or defending any such Claim as
such expenses are incurred; provided, that the Company shall
not be liable to any such indemnified party in any such case
to the extent such Claim or expense arises out of or is
based upon any untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a
material fact made in such registration statement or
amendment thereof or supplement thereto or in any such
prospectus or any preliminary, final or summary prospectus
in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such indemnified
party specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by or on behalf
of such indemnified party and shall survive the transfer of
such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section
3.1 or 3.2 is being effected (and, if the Company requires
as a condition to including any Registrable Securities in
any registration statement filed in accordance with Section
3.1 or 3.2, any underwriter) shall, severally and not
jointly, indemnify and hold harmless (in the same manner and
to the same extent as set forth in paragraph (a) of this
Section 3.9) to the extent permitted by law the Company, its
officers and directors, each Person controlling the Company
within the meaning of the Securities Act and all other
prospective sellers and their directors, officers, general
and limited partners and respective controlling Persons with
respect to any untrue statement or alleged untrue statement
of any material fact in, or omission or alleged omission of
any material fact from, such registration statement, any
preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information
furnished to the Company or its representatives by or on
behalf of such Holder or underwriter specifically stating
that it is for use in such registration statement,
preliminary, final or summary prospectus or amendment or
supplement thereto or document incorporated by reference
into any of the foregoing; provided, however, that the
aggregate amount which any such Holder shall be required to
pay pursuant to this Section 3.9(b) and Sections 3.9(c) and
(e) shall be limited to the amount of the net proceeds
received by such person upon the sale of the Registrable
Securities pursuant to the registration statement giving
rise to such claim. Such indemnity shall remain in full
force and effect regardless of any investigation made by or
on behalf of such indemnified party and shall survive the
transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 3.9 (with appropriate
modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required
registration or other qualification of securities under any
applicable state securities and "blue sky" laws or any
filings made under any applicable Canadian Securities Laws.
<PAGE> 21
18
(d) Any person entitled to indemnification under this Agreement
shall notify promptly the indemnifying party in writing of
the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to
this Section 3.9, but the failure of any indemnified party
to provide such notice shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of
this Section 3.9, except to the extent the indemnifying
party is materially prejudiced thereby and shall not relieve
the indemnifying party from any liability which it may have
to any indemnified party otherwise than under this Article
3. In case any action or proceeding is brought against an
indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless in the
reasonable opinion of outside counsel to the indemnified
party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to
assume the defense thereof jointly with any other
indemnifying party similarly notified, to the extent that it
chooses, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of
the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party
shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that
(i) if the indemnifying party fails to take reasonable steps
necessary to defend diligently the action or proceeding
within 20 days after receiving notice from such indemnified
party that the indemnified party believes it has failed to
do so, (ii) if such indemnified party who is a defendant in
any action or proceeding which is also brought against the
indemnifying party reasonably shall have concluded that
there may be one or more legal defenses available to such
indemnified party which are not available to the
indemnifying party, or (iii) if representation of both
parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct, then, in any
such case, the indemnified party shall have the right to
assume or continue its own defense as set forth above (but
with no more than one firm of counsel for all indemnified
parties in each jurisdiction, except to the extent any
indemnified party or parties reasonably shall have concluded
that there may be legal defenses available to such party or
parties which are not available to the other indemnified
parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct) and the
indemnifying party shall be liable for any expenses
therefor. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless
such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all
liability arising out
<PAGE> 22
19
of such action or claim and (B) does not include a statement
as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable or
is insufficient to hold harmless an indemnified party under
Sections 3.9(a), (b) or (c), then each indemnifying party
shall contribute to the amount paid or payable by such
indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand
and the indemnified party on the other from such offering of
securities. If, however, the allocation provided in the
immediately preceding sentence is not permitted by
applicable law, or if the indemnified party failed to give
the notice required by subsection (d) above and the
indemnifying party is materially prejudiced thereby, then
each indemnifying party shall contribute to the amount paid
or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits
but also the relative fault of the indemnifying party, on
the one hand, and the indemnified party, on the other hand,
as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section
3.9(e) were to be determined by pro rata allocation or by
any other method of allocation which does not take account
of the equitable considerations referred to in the preceding
sentences of this Section 3.9(e). The amount paid or payable
in respect of any Claim shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
Claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
Notwithstanding anything in this Section 3.9(e) to the
contrary, no indemnifying party (other than the Company)
shall be required pursuant to this Section 3.9(e) to
contribute any amount in excess of the net proceeds received
by such indemnifying party from the sale of Registrable
Securities in the offering to which the losses, claims,
damages or liabilities of the indemnified parties relate,
less the amount of any indemnification payment made pursuant
to Sections 3.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant
to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall
survive the transfer of the Registrable Securities by any
such party.
<PAGE> 23
20
(g) The indemnification and contribution required by this
Section 3.9 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense,
as and when bills are received or expense, loss, damage or
liability is incurred.
4. Underwritten Offering.
4.1. Requested Underwritten Offering. If requested by the underwriters
for any underwritten offering by the Holders pursuant to a
registration requested under Section 3.1, the Company shall enter
into a customary underwriting agreement with the underwriters.
Such underwriting agreement shall be satisfactory in form and
substance to the Holders which requested such registration and
shall contain such representations and warranties by, and such
other agreements on the part of, the Company and such other terms
as are generally prevailing in agreements of that type,
including, without limitation, indemnities and contribution
agreements. Any Holder participating in the offering shall be a
party to such underwriting agreement and may, at its option,
require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for
the benefit of such Holder and that any or all of the conditions
precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations
of such Holder. Such underwriting agreement shall also contain
such representations, warranties and indemnities by the
participating Holders as are customary in agreements of that
type.
4.2. Piggyback Underwritten Offering. In the case of a registration
pursuant to Section 3.2 hereof, if the Company shall have
determined to enter into any underwriting agreements in
connection therewith, all of the Holders' Registrable Securities
to be included in such registration shall be subject to such
underwriting agreements. Any Holder participating in such
registration may, at its option, require that any or all of the
representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such
Holder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such
Holder. Such underwriting agreement shall also contain such
representations, warranties and indemnities by the participating
Holders as are customary in agreements of that type.
5. General.
5.1. Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or
subdivision of
<PAGE> 24
21
shares which would adversely affect the ability of the Holder of
any Registrable Securities to include such Registrable Securities
in any registration contemplated by this Agreement or the
marketability of such Registrable Securities in any such
registration. The Company agrees that it will take all reasonable
steps necessary to effect a subdivision of shares if in the
reasonable judgment of (a) the Holder of Registrable Securities
that makes a Demand Registration Request and (b) the Lead
Underwriter, such subdivision would enhance the marketability of
the Registrable Securities.
5.2. Rule 144. The Company covenants that it will timely file the
reports required to be filed by it under the Securities Act or
the Exchange Act (including, but not limited to, the reports
under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 under the Securities Act), and
will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under
the Securities Act, as such Rule may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.3. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company will give
the Holders participating in the offering, their underwriters, if
any, and their respective counsel, accountants and other
representatives and agents the opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and, to the extent
practicable, each amendment thereof or supplement thereto, and
give each of them reasonable access to its books and records and
properties and such opportunities to discuss the business of the
Company and such other matters with the Company's directors,
officers and employees and the independent chartered accountants
who have certified its financial statements, and the Company will
supply, or cause its directors, officers, employees and
independent chartered accountants to supply, all other
information reasonably requested by each of them, as shall be
reasonably necessary or appropriate, in the opinion of the
Holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities
Act.
5.4. Nominees for Beneficial Owners. If Registrable Securities are
held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its option, be treated as the
Holder of such Registrable Securities for purposes of any request
or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement (or any determination of
any number or percentage of shares constituting Registrable
Securities held by any Holder or Holders of Registrable
<PAGE> 25
22
Securities contemplated by this Agreement); provided, that the Company
shall have received assurances reasonably satisfactory to it of such
beneficial ownership.
5.6. Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the
party against whom enforcement of such amendment, modification,
supplement or waiver is sought; provided, that the written
agreement of the holders of a majority of the Registrable
Securities held by the Lamonde Group shall be considered to be
signed by all members of the Lamonde Group.
5.6. Notices. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing
and delivered personally, by telecopy (with confirmation sent
within three business days by overnight courier) or by overnight
courier, addressed to the Company at 465 Godin Avenue, Vanier,
Quebec G1M 3G7, Canada (telecopier: (418) 683-2170) (Attention:
Chief Financial Officer), and to Mr. Lamonde on behalf of the
members of the Lamonde Group at c/o EXFO Electro-Optical
Engineering Inc., 465 Godin Avenue, Vanier, Quebec G1M 3G7,
Canada (telecopier: (418) 683-2170), in each case with a copy to
Fasken Martineau DuMoulin LLP, at 800 Victoria Square, Suite
3400, P.O. Box 242, Montreal, Quebec H4Z 1E9, Canada (telecopier:
(514) 397-7600) (Attention: Robert Pare, Esq.) and to Paul,
Weiss, Rifkind, Wharton & Garrison at 1285 Avenue of the
Americas, New York, NY 10019, U.S.A. (telecopier: (212) 757-3990)
(Attention: Edwin S. Maynard, Esq.). Each Holder, by written
notice given to the Company in accordance with this Section 5.6,
may change the address to which such notice or other
communications are to be sent to such Holder. All such notices
and communications shall be deemed to have been received on the
date of delivery thereof, if delivered by hand, the next day
after the sending thereof, if by overnight courier and when
receipt is acknowledged, if telecopied.
5.7. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the
respective successors and assigns of the parties hereto,
whether so expressed or not. No Person other than a Holder
shall be entitled to any benefits under this Agreement,
except as otherwise expressly provided herein. This
Agreement and the rights of the parties hereunder may be
assigned by any of the parties hereto to any transferee of
Registrable Securities who is a Multiple Voting Share
Permitted Transferee.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and
understanding between the parties hereto and supersedes all
prior agreements and understandings relating to the subject
matter hereof.
<PAGE> 26
23
(c) This Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of New York
without giving effect to the conflicts of law principles
thereof.
(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the
meaning hereof. All section references are to this Agreement
unless otherwise expressly provided.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other
jurisdiction.
(g) It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the
obligations herein imposed on them and that in the event of
any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy at law. Any
such person shall, therefore, be entitled to injunctive
relief, including specific performance, to enforce such
obligations, without the posting of any bond and if any
action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at
law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates,
instruments, and documents as any other party hereto
reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
5.8. No Inconsistent Agreements. Without the prior written consent of
the Lamonde Group, initially through Mr. Lamonde or his designee,
neither the Company nor any Holder will, on or after the date of
this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted in this
Agreement or otherwise conflicts with the provisions hereof,
other than any lock-up agreement with the underwriters in
connection with any registered offering effected hereunder,
pursuant to which the Company shall agree not to register for
sale, and the
<PAGE> 27
24
Company shall agree not to sell or otherwise dispose of,
Voting Shares or any securities convertible into or
exercisable or exchangeable for Voting Shares, for a specified
period following the registered offering. The Company shall
not grant any other Person registration rights without the
written consent of the Holders holding at least a majority of the
Registrable Securities held by all of the Holders. If the
Company shall at any time hereafter provide to any holder of
any securities of the Company rights with respect to the
registration of such securities and such rights are provided on
terms or conditions more favorable to such holder than the
terms or conditions applicable to the Holders herein, the
Company shall provide (by way of amendment to this Agreement or
otherwise) such more favorable terms or conditions to the Holders
under this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
EXFO ELECTRO-OPTICAL ENGINEERING, INC.
By: ________________________________________
Name:
Title:
GEXFO INVESTISSEMENTS TECHNOLOGIQUES INC.
By: ________________________________________
Name:
Title:
G. LAMONDE INVESTISSEMENTS
FINANCIERS INC.
By: _________________________________________
Name:
Title:
FIDUCIE GERMAIN LAMONDE
By: _________________________________________
Name:
Title:
<PAGE> 28
25
____________________________________________
GERMAIN LAMONDE
