Board of Directors Unanimously Recommends
Shareholders Vote in Favour of the Arrangement
QUEBEC CITY, July 16, 2021 /CNW Telbec/ - EXFO Inc.
(NASDAQ: EXFO) (TSX: EXF) ("EXFO" or the
"Corporation") announces the filing of its management proxy
solicitation circular (the "Circular") and related proxy
materials in connection with the special meeting of shareholders
(the "Special Meeting") to consider a special resolution
approving the previously announced statutory plan of arrangement
(the "Arrangement") under section 192 of the Canada
Business Corporations Act pursuant to which 11172239 Canada
Inc. (the "Purchaser"), a corporation controlled by
Germain Lamonde, EXFO's founder and
controlling shareholder, will acquire 100% of EXFO's subordinate
voting shares (the "Subordinate Voting Shares") for
US$6.00 per Subordinate Voting Share,
except for the Subordinate Voting Shares already controlled,
directly or indirectly, by Germain
Lamonde and Philippe Morin
(the "Excluded Shares") (assuming an agreement is reached
between Mr. Lamonde and Mr. Morin such that Mr. Morin
becomes a shareholder of the Purchaser).
Pursuant to an interim order obtained on July 15, 2021, the Special Meeting will be held
on August 13, 2021 at 10:00 a.m. (Québec City time)
exclusively in virtual format. Shareholders of record as of
the close of business on June 22,
2021 will be entitled to receive notice of, to participate
in, and to vote at the Special Meeting. The Circular and related
proxy materials will be mailed to shareholders and will also be
available under EXFO's profile on SEDAR at www.sedar.com and on
EDGAR at www.sec.gov. Details on the virtual Special Meeting and
how shareholders can access the Special Meeting will be set out in
the Circular.
Act Now To Secure Premium Consideration and Certainty of
Value
The Consideration to be paid to the holders of Subordinate
Voting Shares (other than to the holders of the Excluded Shares),
provides:
- a 62% premium to the closing price of the Subordinate Voting
Shares on the Nasdaq Global Select Market on June 4, the last trading day before the offer was
made;
- a 63% premium to the 20-trading day volume-weighted average
price on the Nasdaq Global Select Market up until June 4, the last trading day before the offer was
made; and
- the certainty of an all-cash offer and immediate
liquidity.
Furthermore, Mr. Germain Lamonde,
who controls, directly or indirectly, 61.46% of the issued and
outstanding shares of EXFO and 93.53% of the voting rights attached
to all the issued and outstanding shares of EXFO, has unequivocally
stated that he would not consider any alternative change of control
transaction.
All of the directors who own or control Subordinate Voting
Shares (directly or indirectly) and certain officers who
collectively own or exercise control or direction over
approximately 17.54% of the Subordinate Voting Shares and 93.78% of
the outstanding voting rights attached to all of the issued and
outstanding shares of the Corporation, have entered into Directors
& Officers Support and Voting Agreements pursuant to which they
have agreed, subject to the terms thereof, to vote all of their
Subordinate Voting Shares IN FAVOUR of the special
resolution approving the Arrangement.
The board of directors of EXFO (with Mr. Germain Lamonde
and Mr. Philippe Morin having
recused themselves), acting on the unanimous recommendation of the
special committee comprised entirely of independent directors,
unanimously approved the Arrangement and unanimously recommends
that shareholders vote IN FAVOUR of the Arrangement at the
Special Meeting.
Implementation of the Arrangement will be subject to the
approval of at least (i) two-thirds (662/3%) of the
votes cast by shareholders virtually present or represented by
proxy at the Special Meeting, voting as a single class (each holder
of Subordinate Voting Shares being entitled to one vote per
Subordinate Voting Share and each holder of multiple voting shares
being entitled to ten votes per multiple voting share); and (ii)
because the proposed transaction is subject to Multilateral
Instrument 61-101 – Protection of Minority Security Holders in
Special Transactions ("MI 61-101"), the approval of the
majority of the holders of Subordinate Voting Shares virtually
present or represented by proxy at the Special Meeting, excluding
the votes of shareholders whose votes are required to be excluded
for the purposes of "minority approval", namely the Excluded
Shares, under MI 61-101 in the context of a "business combination"
(the "Minority Approval").
Voting Instructions
Shareholders are urged to ensure that proxies are received by
the Corporation's depository, AST Trust Company (Canada), at 1 Toronto Street, Suite 1200,
Toronto, Ontario, M5C 2V6,
Attention: Proxy Department, or at 2001 Robert Bourassa Boulevard,
Suite 1600, Montreal, Québec, H3A
2A6, Attention: Proxy Department, by no later than 10:00 a.m. (Québec City time) on August 11, 2021 (or 48 hours, excluding
Saturdays, Sundays and statutory holidays, prior to the
commencement of the reconvened special shareholders' meeting if the
Special Meeting is adjourned or postponed). Late proxies may be
accepted or rejected by the Chair of the Special Meeting at his or
her discretion, and the Chair of the Special Meeting is under no
obligation to accept or reject any particular late proxy.
If shareholders have any questions about the information
contained in the Circular or require assistance in completing the
form of proxy, they can contact EXFO's proxy solicitor,
D.F. King Canada, a division of AST Investor Services Inc.
(Canada) toll-free in North America at 1 (866) 822-1242,
direct at (416) 682-3825 or by email at inquiries@dfking.com.
Questions on how to complete the letter of transmittal, should be
directed to EXFO's depositary, AST Trust Company (Canada), at 1 (800) 387-0825
(toll-free within North America)
or at (416) 682-3860 (outside of North America) or by email at
inquiries@astfinancial.com.
No Offer or Solicitation
This press release is for informational purposes only and does
not constitute an offer to buy or the solicitation of an offer to
sell EXFO's Subordinate Voting Shares. The full details of the
Arrangement are described in the Circular (including the related
letter of transmittal and all other offer documents filed by EXFO
with the United States Securities and Exchange Commission (the
"SEC")), which is available without charge on the SEC's
website at www.sec.gov or by calling EXFO's Corporate Secretary at
(418) 683-0913, Ext. 23704. Offer documents required to be filed in
Canada are also available without
charge at www.sedar.com. Shareholders are urged to read these
materials carefully.
In connection with the transaction, the Corporation will prepare
and mail a Schedule 13E-3 Transaction Statement (the "Schedule
13E-3"). The Schedule 13E-3 will be filed with the SEC.
INVESTORS AND SHAREHOLDERS ARE URGED TO READ CAREFULLY AND IN
THEIR ENTIRETY THE SCHEDULE 13E-3 AND OTHER MATERIALS FILED WITH
THE SEC WHEN THEY BECOME AVAILABLE, AS THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE CORPORATION, THE TRANSACTION, AND RELATED
MATTERS. In addition to receiving the Schedule 13E-3 by mail,
shareholders will also be able to obtain these documents, as well
as other filings containing information about the Corporation, the
transaction, and related matters, without charge from the SEC's
website (http://www.sec.gov).
The Corporation and certain of its directors and executive
officers may, under SEC rules, be deemed to be "participants" in
the solicitation of proxies from the shareholders with respect to
the Arrangement. Information regarding the persons who may be
considered "participants" in the solicitation of proxies is set
forth in the Schedule 13E-3 transaction statement relating to the
proposed plan of arrangement and the Circular, which are attached
as exhibits thereto. Further information regarding persons who may
be deemed participants, including any direct or indirect interests
they may have, is also set forth in the Circular.
Caution Regarding Forward-looking Statements
This press release contains forward-looking statements within
the meaning of Canadian securities laws. In addition, this press
release also contains forward-looking statements within the meaning
of the U.S. Private Securities Litigation Reform Act of 1995, and
we intend that such forward-looking statements be subject to the
safe harbors created thereby. Forward-looking statements are
statements other than historical information or statements of
current condition. Words such as may, expect, believe, plan,
anticipate, intend, could, estimate, continue, or similar
expressions or the negative of such expressions are intended to
identify forward-looking statements. In addition, any statements
that refer to expectations, projections or other characterizations
of future events and circumstances are considered forward-looking
statements. They are not guarantees of future performance and
involve risks and uncertainties. More particularly and without
restriction, this press release contains forward-looking statements
and information regarding: statements and implications about the
anticipated benefits of the proposed transaction for EXFO, its
employees, business partners, shareholders and other stakeholders,
including future financial and operating results, plans,
objectives, expectations and intentions of the Purchaser or EXFO,
and the anticipated timing of the Special Meeting and of the
completion of the proposed transaction.
In respect of the forward-looking statements and information
concerning the anticipated benefits and timing of the completion of
the proposed transaction, EXFO has provided such statements and
information in reliance on certain assumptions that it believes are
reasonable at this time, including assumptions as to the ability of
the parties to receive, in a timely manner and on satisfactory
terms, the necessary shareholder (including the Minority Approval)
and court approvals; the ability of the parties to satisfy, in a
timely manner, the other conditions to the completion of the
proposed transaction; and other expectations and assumptions
concerning the proposed transaction. The anticipated dates
indicated may change for a number of reasons, including the
inability to receive, in a timely manner, the necessary shareholder
(including the Minority Approval) and court approvals, the
necessity to extend the time limits for satisfying the other
conditions to the completion of the proposed transaction or the
ability of the Board of Directors to consider and approve, subject
to compliance by the Corporation of its obligations in this respect
under the agreement providing for the Arrangement (the
"Arrangement Agreement"), a superior proposal for the
Corporation. Although EXFO believes that the expectations reflected
in these forward-looking statements are reasonable, it can give no
assurance that these expectations will prove to have been correct,
that the proposed transaction will be completed or that it will be
completed on the terms and conditions contemplated in this press
release. Accordingly, investors and others are cautioned that undue
reliance should not be placed on any forward-looking
statements.
Risks and uncertainties inherent in the nature of the proposed
transaction include, without limitation, the failure of the parties
to obtain the necessary shareholder (including the Minority
Approval) and court approvals or to otherwise satisfy the
conditions to the completion of the proposed transaction; failure
of the parties to obtain such approvals or satisfy such conditions
in a timely manner; significant transaction costs or unknown
liabilities; the ability of the Board of Directors to consider and
approve, subject to compliance by the Corporation of its
obligations in this respect under the Arrangement Agreement, a
superior proposal for the Corporation; the failure to realize the
expected benefits of the proposed transaction; and general economic
conditions. Failure to obtain the necessary shareholder (including
the Minority Approval) and court approvals, or the failure of the
parties to otherwise satisfy the conditions to the completion of
the proposed transaction or to complete the proposed transaction,
may result in the proposed transaction not being completed on the
proposed terms, or at all. In addition, if the proposed transaction
is not completed, and EXFO continues as an independent entity,
there are risks that the announcement of the proposed transaction
and the dedication of substantial resources of the Corporation to
the completion of the proposed transaction could have an impact on
its business and strategic relationships (including with future and
prospective employees, customers, suppliers and partners),
operating results and activities in general, and could have a
material adverse effect on its current and future operations,
financial condition and prospects. Furthermore, the failure of EXFO
to comply with the terms of the Arrangement Agreement may, in
certain circumstances, result in it being required to pay a fee to
Purchaser, the result of which could have a material adverse effect
on its financial position and results of operations and its ability
to fund growth prospects and current operations. Consequently, the
reader is cautioned not to place undue reliance on the
forward-looking statements and information contained in this press
release. Further information regarding these and other risks,
uncertainties or factors is included in EXFO's filings with the SEC
as well as the Schedule 13E-3 transaction statement and
Circular.
The forward-looking statements in this document reflect the
Corporation's expectations on the date hereof and are subject to
change after that date. The Corporation expressly disclaims any
obligation or intention to update or revise any forward-looking
statements, whether as a result of new information, future events
or otherwise, unless required by applicable securities laws.
About EXFO
EXFO develops smarter test, monitoring and analytics solutions
for fixed and mobile network operators, webscale companies and
equipment manufacturers in the global communications industry. Our
customers count on us to deliver superior network performance,
service reliability and subscriber insights. They count on our
unique blend of equipment, software and services to accelerate
digital transformations related to fiber, 4G/LTE and 5G
deployments. They count on our expertise with automation, real-time
troubleshooting and big data analytics, which are critical to their
business performance. We've spent over 30 years earning this trust,
and today 1,900 EXFO employees in over 25 countries work side by
side with our customers in the lab, field, data center and
beyond.
View original
content:https://www.prnewswire.com/news-releases/exfo-announces-the-filing-of-its-circular-in-connection-with-the-special-meeting-of-shareholders-and-receives-interim-order-301335614.html
SOURCE EXFO Inc.