Title
of each class
|
Name
of each exchange on which registered
|
Subordinate
Voting Shares without par value
|
NASDAQ
|
Subordinate
Voting Shares without par value
|
TSX
|
Large
accelerated filer
o
|
Accelerated
filer
x
|
Non-accelerated
filer
o
|
A. |
Selected Financial Data
|
Years
ended August 31,
|
||||||||||||||||
2006
|
2005
|
2004
|
2003
|
2002
|
||||||||||||
(in
thousands of US dollars, except share and per share
data)
|
||||||||||||||||
Consolidated
Statements of Earnings Data:
|
||||||||||||||||
Amounts
under Canadian GAAP
|
||||||||||||||||
Sales
|
$
|
128,253
|
$
|
97,216
|
$
|
74,630
|
$
|
61,930
|
$
|
68,330
|
||||||
Cost
of sales
(1)
|
57,275
|
44,059
|
34,556
|
36,197
|
52,366
|
|||||||||||
Gross
margin
|
70,978
|
53,157
|
40,074
|
25,733
|
15,964
|
|||||||||||
Operating
expenses
|
||||||||||||||||
Selling
and administrative
|
40,298
|
31,782
|
25,890
|
26,991
|
33,881
|
|||||||||||
Net
research and development
|
15,404
|
12,190
|
12,390
|
15,879
|
12,782
|
|||||||||||
Amortization
of property, plant and equipment
|
3,523
|
4,256
|
4,935
|
5,210
|
5,096
|
|||||||||||
Amortization
of intangible assets
|
4,394
|
4,836
|
5,080
|
5,676
|
12,451
|
|||||||||||
Impairment
of long-lived assets and goodwill
|
604
|
−
|
620
|
7,427
|
23,657
|
|||||||||||
Government
grants
|
(1,307
|
)
|
−
|
−
|
−
|
−
|
||||||||||
Restructuring
and other charges
|
−
|
292
|
1,729
|
4,134
|
2,880
|
|||||||||||
Total
operating expenses
|
62,916
|
53,356
|
50,644
|
65,317
|
90,747
|
|||||||||||
Earnings
(loss) from operations
|
8,062
|
(199
|
)
|
(10,570
|
)
|
(39,584
|
)
|
(74,783
|
)
|
|||||||
Interest
and other income
|
3,253
|
2,524
|
1,438
|
1,245
|
1,456
|
|||||||||||
Foreign
exchange loss
|
(595
|
)
|
(1,336
|
)
|
(278
|
)
|
(1,552
|
)
|
(458
|
)
|
||||||
Earnings
(loss) before income taxes and amortization and write-down of
goodwill
|
10,720
|
989
|
(9,410
|
)
|
(39,891
|
)
|
(73,785
|
)
|
||||||||
Income
taxes
|
2,585
|
2,623
|
(986
|
)
|
15,059
|
(25,451
|
)
|
|||||||||
Earnings
(loss) before amortization and write-down of goodwill
|
8,135
|
(1,634
|
)
|
(8,424
|
)
|
(54,950
|
)
|
(48,334
|
)
|
|||||||
Amortization
of goodwill
|
−
|
−
|
−
|
−
|
38,021
|
|||||||||||
Write-down
of goodwill
|
−
|
−
|
−
|
−
|
222,169
|
|||||||||||
Net
earnings (loss) for the year
|
$
|
8,135
|
$
|
(1,634
|
)
|
$
|
(8,424
|
)
|
$
|
(54,950
|
)
|
$
|
(308,524
|
)
|
||
Basic
and diluted net earnings (loss) per share
|
$
|
0.12
|
$
|
(0.02
|
)
|
$
|
(0.13
|
)
|
$
|
(0.87
|
)
|
$
|
(5.09
|
)
|
||
Basic
weighted average number of shares used in per share calculations
(000’s)
|
68,643
|
68,526
|
66,020
|
62,852
|
60,666
|
|||||||||||
Other
consolidated statements of earnings data:
|
||||||||||||||||
Gross
research and development
|
$
|
19,488
|
$
|
15,878
|
$
|
15,668
|
$
|
17,133
|
$
|
17,005
|
||||||
Net
research and development
|
$
|
15,404
|
$
|
12,190
|
$
|
12,390
|
$
|
15,879
|
$
|
12,782
|
||||||
Amounts
under U.S. GAAP
|
||||||||||||||||
Net
earnings (loss) for the year
|
$
|
8,135
|
$
|
(2,920
|
)
|
$
|
(9,571
|
)
|
$
|
(48,201
|
)
|
$
|
(382,893
|
)
|
||
Basic
and diluted net earnings (loss) per share
|
$
|
0.12
|
$
|
(0.04
|
)
|
$
|
(0.14
|
)
|
$
|
(0.77
|
)
|
$
|
(6.31
|
)
|
||
Basic
weighted average number of shares used in per share calculations
(000’s)
|
68,643
|
68,526
|
66,020
|
62,852
|
60,666
|
As
at August 31,
|
||||||||||||||||
2006
|
2005
|
2004
|
2003
|
2002
|
||||||||||||
(in
thousands of US dollars)
|
||||||||||||||||
Consolidated
Balance Sheets Data:
|
||||||||||||||||
Amounts
under Canadian GAAP
|
||||||||||||||||
Cash
|
$
|
6,853
|
$
|
7,119
|
$
|
5,159
|
$
|
5,366
|
$
|
9,128
|
||||||
Short-term
investments
|
104,437
|
104,883
|
83,969
|
52,010
|
40,553
|
|||||||||||
Working
capital
|
143,985
|
135,288
|
115,141
|
76,659
|
91,374
|
|||||||||||
Total
assets
|
219,159
|
190,957
|
172,791
|
146,254
|
177,926
|
|||||||||||
Long-term
debt (excluding current portion)
|
354
|
198
|
332
|
453
|
564
|
|||||||||||
Share
capital
|
148,921
|
521,875
|
521,733
|
492,452
|
489,611
|
|||||||||||
Shareholders’
equity
|
$
|
196,234
|
$
|
173,400
|
$
|
157,327
|
$
|
129,826
|
$
|
165,406
|
||||||
Amounts
under U.S. GAAP
|
||||||||||||||||
Cash
|
$
|
6,853
|
$
|
7,119
|
$
|
5,159
|
$
|
5,366
|
$
|
9,128
|
||||||
Short-term
investments
|
104,437
|
104,883
|
83,969
|
52,010
|
40,553
|
|||||||||||
Working
capital
|
149,436
|
138,225
|
117,116
|
78,225
|
91,305
|
|||||||||||
Total
assets
|
212,702
|
182,852
|
164,758
|
138,020
|
161,314
|
|||||||||||
Long-term
debt (excluding current portion)
|
354
|
198
|
332
|
453
|
564
|
|||||||||||
Share
capital
|
598,421
|
597,664
|
596,309
|
565,291
|
560,943
|
|||||||||||
Shareholders’
equity
|
$
|
189,777
|
$
|
165,295
|
$
|
149,294
|
$
|
121,592
|
$
|
150,999
|
(1)
|
The
cost of sales is exclusive of amortization, shown separately. Includes
inventory write-offs of nil, nil, nil, $4,121,000 and $18,463,000
for the
years ended August 31, 2006, 2005, 2004, 2003 and 2002, respectively,
and
an unusual gain of $473,000 for the year ended August 31,
2003.
|
· |
Increased
competition for business;
|
· |
Reduced
demand;
|
· |
Limited
number of potential customers;
|
· |
Competition
from companies with lower production costs, including companies operating
in lower cost environments;
|
· |
Introduction
of new products by competitors;
|
· |
Greater
economies of scale for higher-volume
competitors;
|
· |
Large
customers, who buy in high volumes, can exert substantial negotiating
leverage over us;
|
· |
Resale
of used equipment; and
|
· |
Equipment
sales resulting from manufacturing and rental company
bankruptcies.
|
· |
Costly
repairs;
|
· |
Product
returns or recalls;
|
· |
Damage
to our brand reputation;
|
· |
Loss
of customers, failure to attract new customers or achieve market
acceptance;
|
· |
Diversion
of development and engineering
resources;
|
· |
Legal
actions by our customers, including claims for consequential damages
and
loss of profits; and
|
· |
Legal
actions by governmental entities, including actions to impose product
recalls and/or forfeitures.
|
· |
Issue
shares that would dilute individual shareholder percentage
ownership;
|
· |
Incur
debt;
|
· |
Assume
liabilities and commitments;
|
· |
Incur
significant expenses related to amortization of additional intangible
assets;
|
· |
Incur
significant impairment losses of goodwill and intangible assets related
to
such acquisitions; and
|
· |
Incur
losses from operations.
|
· |
Risk
of not realizing the expected benefits or synergies of such
acquisitions;
|
· |
Problems
integrating the acquired operations, technologies, products and
personnel;
|
· |
Risks
associated with the transfer of acquired know-how and
technology;
|
· |
Unanticipated
costs or liabilities;
|
· |
Diversion
of management’s attention from our core
business;
|
· |
Adverse
effects on existing business relationships with suppliers and
customers;
|
· |
Risks
associated with entering markets in which we have no or limited prior
experience; and
|
· |
Potential
loss of key employees, particularly those of acquired
organizations.
|
· |
Length
of the product sales cycle for certain products, especially those
that are
higher priced and more complex;
|
· |
Timing
of product launches and market acceptance of new products for us
as well
as our competitors;
|
· |
Our
ability to sustain product volumes and high levels of quality across
all
product lines;
|
· |
Timing
of shipments for large orders;
|
· |
Effect
of seasonality on sales and bookings;
and
|
· |
Losing
key accounts and not successfully developing new
ones.
|
· |
Fluctuating
demand for telecommunications test and measurement equipment as well
as
life sciences and industrial
solutions;
|
· |
Changes
in the capital spending and operating budgets of our customers, which
may
cause seasonal or other fluctuations in product mix, volume, timing
and
number of orders we receive from our
customers;
|
· |
Order
cancellations or rescheduled delivery
dates;
|
· |
Pricing
changes by our competitors or
suppliers;
|
· |
Customer
bankruptcies and difficulties in collecting accounts
receivable;
|
· |
Restructuring
and impairment charges; and
|
· |
General
economic conditions.
|
· |
Properly
identify and anticipate customer
needs;
|
· |
Innovate
and develop new products;
|
· |
Gain
timely market acceptance for new
products;
|
· |
Manufacture
and deliver our new products on time and in sufficient
volume;
|
· |
Price
our products competitively;
|
· |
Continue
investing in our research and development programs;
and
|
· |
Anticipate
competitors’ announcements of new
products.
|
· |
Challenges
in staffing and managing foreign operations due to the limited number
of
qualified candidates, employment laws and practices in foreign countries,
any of which could increase the cost and reduce the efficiency of
operating in foreign countries;
|
· |
Our
ability to comply with import/export, environmental and other trade
compliance regulations of the countries in which we do business,
together
with unexpected changes in such
regulations;
|
· |
Adhering
to laws, regulations and contractual obligations relating to customer
contracts in various countries;
|
· |
Difficulties
in establishing and enforcing our intellectual property
rights;
|
· |
Maintaining
a competitive list of distributors for indirect
sales;
|
· |
Tariffs
and other trade barriers;
|
· |
Economic
instability in foreign markets;
|
· |
Wars,
acts of terrorism and political
unrest;
|
· |
Language
and cultural barriers;
|
· |
Integration
of foreign operations;
|
· |
Currency
fluctuations;
|
· |
Potential
foreign and domestic tax
consequences;
|
· |
Technology
standards that differ from those on which our products are based,
which
could require expensive redesign and retention of personnel familiar
with
those standards;
|
· |
Longer
accounts receivable payment cycles and possible difficulties in collecting
payments which may increase our operating costs and hurt our financial
performance; and
|
· |
Certification
requirements.
|
· |
Our
OmniCure product line, focused on UV spot-curing applications, has
enjoyed
significant growth within the medical and optoelectronics
industries. These diverse markets, largely influenced by the
miniaturization trend, are expanding worldwide with Asia showing
the
largest year-over-year growth.
|
· |
Our
X-Cite series, an add-on illumination system for high-end microscopes,
has
entrenched itself as a market leader in various research areas. The
global
fluorescence microscopy market is growing in mid single digits, while
live
cell and quantitative imaging are increasingly gaining
traction.
|
· |
Our
Burleigh nano-positioning product line, mainly designed for cellular
micromanipulation, continues to demonstrate strong brand-name recognition
and loyal following with electrophysiologists. It targets a stable
growth
market focused on fundamental neuroscience and drug
discovery.
|
· |
Grow
revenues by 20% year-over-year.
We
were among the last companies to be impacted by the telecommunications
downturn in 2001 and first to recover with sales growth of 20.5%
in fiscal
2004, 30.3% in 2005 and 31.9% in 2006, including 12 consecutive
quarters of growth. This recovery was accomplished mainly through
market-share gains, since our end-markets reportedly experienced
negative
growth in fiscal 2004 and increased in the mid single digits in 2005
and
2006. We will strive to maintain a high growth rate in 2007 by seeking
to
further increase our market share in telecom testing, especially
in the
rapidly growing protocol test segment, and by seeking to leverage
core
technologies in targeted life sciences and industrial markets.
|
· |
Generate
a GAAP earnings from operations of 7%.
Our
bottom-line improved faster than our top-line in the last few years
with a
GAAP earnings from operations of 6.3% in fiscal 2006. We expect that
our
GAAP earnings from operations will continue to improve in 2007 as
we
expect that higher-margin protocol revenues, better absorption of
fixed
costs on higher sales volumes, specific internal initiatives, and
currency
stability will come into play.
|
· |
Derive
35% of sales from new products (on the market two years or less).
Despite
missing this aggressive innovation target in recent years, our new
products, with their built-in superior performance and lower cost
of
goods, contributed significantly to raising our gross margin and
earnings
from operations. We are maintaining this innovation metric for 2007
based
on our market-driven focus and enhanced portfolio of new products
(18 new
products) released in the past
year.
|
· |
Unlike
stand-alone units, new test modules can be rapidly developed to address
changing industry requirements.
|
· |
As
customers’ testing requirements change, they can purchase additional
modules that are compatible with their previously purchased platforms,
thus protecting their initial
investments.
|
· |
Our
standard graphical user interface reduces training costs because
customers
are familiar with previously acquired software
products.
|
· |
The
flexibility of our systems allows customers to develop customized
and
automated solutions for their specific test
requirements.
|
· |
Our
test platforms are PC-based and Windows-driven, thus they can support
third-party software solutions.
|
· |
The
first PC-based modular test platform for field
applications;
|
· |
The
first all-in-one optical loss test set combining several
instruments;
|
· |
The
first portable polarization mode dispersion (PMD)
analyzer;
|
· |
The
first modular platform to combine optical and protocol test
solutions;
|
· |
The
first line of portable test instruments designed for FTTx testing;
and
|
· |
The
first fully integrated Ethernet-over-SONET test
solution.
|
Format
|
||||||
Instrument
Type
|
Typical
Application
|
NSP
Market
|
Manufacturer/R&D
Market
|
|||
FTB
400
Modules
|
FTB
200
Modules
|
Handhelds
|
IQS-500
Modules
|
Benchtop
Instruments
|
||
ADSL/ADSL2+
Service Verification Tool
|
Based
on a DSL “golden modem”, these units are used to test the function, speed
and quality of a DSL service at the subscriber premises.
|
X
|
||||
Broadband
source
|
Used
for testing wavelength-dependent behavior of fiber cables and DWDM
optical
components.
|
X
|
X
|
|||
Chromatic
dispersion analyzer
|
Measures
increasing levels of chromatic dispersion in high-capacity optical
networks. Chromatic dispersion is a physical phenomenon inherent
to
optical fiber and optical components that causes information bits
to
spread along a network. This degrades the quality of the transmission
signal and, in turn, limits the transmission speed carried by optical
networks.
|
X
|
||||
Clip-on
coupling device
|
Clips
to an optical fiber and allows non-invasive testing.
|
X
|
||||
Format
|
||||||
Instrument
Type
|
Typical
Application
|
NSP
Market
|
Manufacturer/R&D
Market
|
|||
FTB
400
Modules
|
FTB
200
Modules
|
Handhelds
|
IQS-500
Modules
|
Benchtop
Instruments
|
||
Optical
fiber parameter analyzer
|
Measures
the geometric and light guiding properties of an optical fiber. Used
in
new fiber research and development and quality control
applications.
|
X
|
||||
Optical
power meter
|
Measures
the power of an optical signal. It is the basic tool for the verification
of transmitters, amplifiers and optical transmission path
integrity.
|
X
|
X
|
X
|
X
|
X
|
Optical
power reference module
|
Provides
a highly accurate and traceable measurement of power for the calibration
or verification of other power measurement instruments.
|
X
|
||||
Optical
return loss meter
|
Combines
a laser and a power meter to measure the amount of potentially degrading
back reflection.
|
X
|
X
|
X
|
X
|
|
Optical
spectrum analyzer
|
Produces
a graphical representation of power versus wavelength for an optical
signal. Useful for measuring the drift, power and signal-to-noise
ratio
for each wavelength in a DWDM system.
|
X
|
||||
Optical
switch
|
Provides
switching between fibers. Used to provide flexible and automated
test
setups such as the measurement of multiple fibers or components with
multiple ports with one instrument.
|
X
|
X
|
|||
Optical
time domain reflectometer
(OTDR)
|
Like
a radar, it measures the time of arrival of reflections of an optical
signal to determine the distance to the breaks or points of excessive
loss
in a fiber network.
|
X
|
X
|
X
|
||
Optical
waveguide analyzer
|
Provides
the refractive index profile of glass and fused silica-based devices
used
in next generation networks.
|
X
|
||||
Passive
component analyzer
|
Characterizes
passive wavelength-selective devices, such as multiplexers, demultiplexers
and add/drop filters, with respect to absolute wavelength in order
to
guarantee their performance within DWDM systems.
|
X
|
||||
Passive
optical network (PON) power meter
|
Determines
the power level of various signal types, including continuous (e.g.,
TV
signal at 1550 nm) and framed (e.g., ATM or Ethernet at 1490 nm or
1310
nm) within a passive optical network. Various baud rates are covered,
ranging from 155 Mbit/s to 2.5 Gbit/s, for both synchronous and
non-synchronous signals.
|
X
|
||||
Polarization-dependent
loss meter
|
Measures
the difference in loss of power for the different states of
polarization.
|
X
|
||||
Polarization
mode dispersion analyzer
|
Measures
the dispersion of light that is caused by polarization. Generally
used to
determine the speed-distance limitation of fiber and
cables.
|
X
|
||||
SONET/
SDH analyzer
|
Provide
accurate bit-error rate and performance analysis of SONET/SDH overhead
format that reflect the quality of a transmission system.
|
X
|
X
|
X
|
Format
|
||||||
Instrument
Type
|
Typical
Application
|
NSP
Market
|
Manufacturer/R&D
Market
|
|||
FTB
400
Modules
|
FTB
200
Modules
|
Handhelds
|
IQS-500
Modules
|
Benchtop
Instruments
|
||
Stable
light source
|
Emitting
diode or lasers used in connection with a power meter to measure
signal
loss.
|
X
|
X
|
X
|
X
|
|
Synchronization
analyzer
|
Portable,
stand-alone tester for network synchronization analysis and wander
measurement in wireless and wireline transport networks.
|
X
|
||||
Talk
set
|
A
device that attaches to an optical fiber and serves as a temporary
voice
link facilitating coordination of work among installation
crews.
|
X
|
X
|
|||
Telephone
wire analyzer
|
Used
by telecommunications service providers that have networks that are
comprised mostly or partially of twisted-pair local loops to ensure
that
those loops are of sufficient quality to carry higher-frequency signals
required for DSL.
|
X
|
||||
Variable
optical attenuator
|
Used
in network simulation setups to provide calibrated variable reduction
of
the strength of an optical signal.
|
X
|
X
|
X
|
||
Visual
fault locator
|
A
visible laser that can be connected to an optical fiber network to
help
locate breaks or points of excessive loss.
|
X
|
X
|
X
|
||
Widely
tunable laser
|
Can
produce laser light across a broad range of wavelengths. Used to
test DWDM
components and value-added optical modules.
|
X
|
X
|
·
CWDM/FTTH
passive optical component test system
|
Used
to automatically characterize all critical specifications, including
spectral insertion loss, polarization-dependent loss and optical
return
loss of a CWDM passive component or a FTTH splitter with a high degree
of
accuracy, ease of use and speed.
|
·
Cable
assembly and component test system
|
Used
to perform insertion loss and mandrel-free reflection measurements
with
the highest degree of accuracy and repeatability on short fiber assemblies
(including multifiber patchcords, hybrids and fan-out patchcords)
and
components like PLC splitters and fiber arrays.
|
·
DWDM
passive component test system
|
Used
to automatically characterize all critical specifications, including
spectral insertion loss, polarization-dependent loss and optical
return
loss of a DWDM passive component with a high degree of accuracy,
ease of
use and speed.
|
· |
market
study and research feasibility;
|
· |
product
definition;
|
· |
development
feasibility;
|
· |
development;
|
· |
qualification;
and
|
· |
transfer
to production.
|
· |
Production.
From production planning to product shipment, our production department
is
responsible for manufacturing high-quality products on time. Factories
are
organized in work cells; each cell consists of specialized technicians
and
equipment and has full responsibility over a product family. Technicians
are cross-trained and versatile enough, so that they can carry out
specific functions in more than one cell. This allows shorter lead
times
by alleviating bottlenecks.
|
· |
Product
Engineering and Quality.
This department, which supports our production cells, acts like a
gatekeeper to ensure the quality of our products and the effectiveness
of
our manufacturing processes. It is responsible for the transfer of
products from research and development to manufacturing, product
improvement, documentation, metrology, and the quality assurance
and
regulatory compliance process. Quality assurance represents a key
element
in our manufacturing operations. Quality is assured through product
testing at numerous stages in the manufacturing process to ensure
that our
products meet stringent industry requirements and our customers’
performance requirements. Our quality assurance program has been
certified
ISO 9001/2000 at all Telecom sites.
|
· |
Supply-Chain
Management.
This department is responsible for sales forecasting, raw material
procurement, material-cost reduction and vendor performance management.
Our products consist of optical, electronic and mechanical parts,
which
are purchased from suppliers around the world. Approximately one-third
of
our parts are manufactured to our specifications. Materials represent
the
biggest portion of our cost of goods and will continue to grow as
we rely
more and more on outsourcing our manufacturing. Our performance is
tightly
linked to vendor performance, requiring greater emphasis on this
critical
aspect of our business.
|
· |
product
performance and reliability;
|
· |
price;
|
· |
level
of technological innovation;
|
· |
product
lead times;
|
· |
breadth
of product offerings;
|
· |
ease
of use;
|
· |
brand-name
recognition;
|
· |
customer
service and technical support;
|
· |
strength
of sales and distribution relationships;
and
|
· |
financial
stability.
|
· |
a
method and apparatus for “non-intrusive” live-fiber detection and
monitoring, for which a PCT patent application has been filed. This
invention permits a fiber “clip-on” device to be attached to a cabled
fiber, essentially guaranteeing that the induced bending loss to
a
live-traffic link will never exceed 1 dB. This is a key invention
for our
new LFD-250, LFD-300, and TG-300 products, announced in September
2006,
subsequent to the end of the 2006 fiscal year.
|
· |
the
measurement of attenuation of optical fibers using bidirectional
transmission of information via the fiber for which patents were
granted
in the United States and Canada. This invention forms the basis of
our
FOT-930 and FTB-3920 products;
|
· |
a
method and apparatus for characterizing optical power levels in
three-wavelength, bidirectional fiber-to-the-home systems. This invention
describes how the optical power can be measured at the two-downstream
and
one upstream wavelengths used to connect a residence or business
customer,
while maintaining the signal continuity necessary to keep the home-based
Optical Network Terminal operating. US and PCT patent applications
have
been filed and are in process. This invention forms the basis of
the
two-port version of our PPM-350B PON Power Meter.
|
· |
an
optical spectrum analyzer using optical fibers as input and output
“slits”. This invention forms the basis of our FTB-5240, FTB-5240B and
IQ-5250 products. A patent has been granted in the US, UK, Germany,
France, and China, and an application is in process in Canada.
|
· |
a
light-curing system with closed-loop control and work-piece recording
which is at the heart of the spot-curing systems manufactured by
EXFO
Photonic Solutions and for which patents were granted in the United
States
and Canada;
|
· |
a
special optical design used in some of the X-Cite adaptors to prevent
structure in the beam from reducing the uniformity of illumination
at the
microscope objective plane, which is a key patent for our X-Cite
fluorescent illumination system. A US patent has recently been granted.
|
· |
portable
test gear for TDM and packet-based communications for which patent
applications have been filed in Canada, the United States and pursuant
to
the Patent Cooperation Treaty form the basis of the technology used
by
EXFO Protocol for a number of its protocol testing
products.
|
· |
a
method and apparatus to determine the theoretical and practical data
rates
for a cable under test. This invention forms the basis of the EXFO
CableSHARK product, describing how two test
devices, communicating with each other via the cable under
test, can predict the performance of a pair of ADSL (Asymmetric
Digital Subscriber Line) modems, and in case of problems, analyze
the
cause of the modems failing to synchronize. This patent has been
granted
in the US and in Canada.
|
Location
|
Use
of Space
|
Square
Footage
|
Type
of Interest
|
436
Nolin Street
Quebec
(Quebec)
|
Manufacturing
of telecom products
|
44,164
|
Owned
|
400
Godin Avenue
Quebec
(Quebec)
|
Research
and development, manufacturing, management and
administration
|
128,800
|
Owned
|
2260
Argentia Road
Mississauga
(Ontario)
|
Partially
occupied for research and development, manufacturing of life science
and
industrial products and administration
|
25,328
(1)
|
Leased
|
2650
Marie-Curie, St-Laurent (Quebec)
|
Research
and development, manufacturing and administration
|
26,000
|
Leased
|
160
Drumlin Circle
Concord
(Ontario)
|
Fully
occupied building for research and development, manufacturing of
EXFO’s
Copper Access Business Unit products, product management,
administration
|
23,500
|
Owned
|
Vármegye
utca 3-5 (Ausztria Ház)
Budapest,
Hungary
|
Research
and development, services (installation, training, support and
maintenance) and administration
|
2,500
|
Leased
|
Omega
Enterprise Park
Electron
Way, Chandlers Ford, Hampshire
England
|
Partially
occupied for European customer service, sales management, administration
and research and development
|
10,000
|
Leased
|
(1) |
10,672
square feet have been subleased to a third party. The total square
footage
leased is 36,000.
|
Strategic
objectives for fiscal 2007
|
Key
performance indicators for fiscal 2007
|
Increase
sales through market-share gains
|
20%
sales growth year-over-year
|
Maximize
profitability
|
7%
in earnings from operations
|
Focus
on innovation
|
35%
of sales from new products
(on
the market two years or less)
|
Year
ending August 31,
|
2007
|
2008
|
2009
|
2010
|
2011
and later
|
Total
|
|||||||||||||
Long-term
debt
|
$
|
107,000
|
$
|
113,000
|
$
|
118,000
|
$
|
123,000
|
$
|
−
|
$
|
461,000
|
|||||||
Operating
leases
|
1,748,000
|
1,223,000
|
1,177,000
|
1,200,000
|
1,540,000
|
6,888,000
|
|||||||||||||
Total
commitments
|
$
|
1,855,000
|
$
|
1,336,000
|
$
|
1,295,000
|
$
|
1,323,000
|
$
|
1,540,000
|
$
|
7,349,000
|
Expiry
dates:
|
Contractual
amounts
|
Weighted
average contractual forward rates
|
|||
September
2006 to August 2007
|
$
|
37,000,000
|
1.1676
|
||
September
2007 to June 2009
|
26,800,000
|
1.1261
|
Stock
Options
|
Number
|
%
of issued and outstanding
|
Weighted
average exercise price
|
||||
Chairman
of the Board, President and CEO (one individual)
|
179,642
|
7%
|
$
|
9.05
|
|||
Board
of Directors (five individuals)
|
194,375
|
8%
|
$
|
6.23
|
|||
Management
and Corporate Officers (eight individuals)
|
313,836
|
13%
|
$
|
15.42
|
|||
687,853
|
28%
|
$
|
11.16
|
Restricted
Share Units (RSUs)
|
Number
|
%
of issued and outstanding
|
||
Chairman
of the Board, President and CEO (one individual)
|
59,913
|
14%
|
||
Management
and Corporate Officers (ten individuals)
|
255,616
|
60%
|
||
315,529
|
74%
|
Deferred
Share Units (DSUs)
|
Number
|
%
of issued and outstanding
|
||
Board
of Directors (five individuals)
|
43,290
|
100%
|
Item 6. |
Directors,
Senior Management and Employees
|
A. |
Directors
and Senior Management
|
Name
and Municipality of Residence
|
Positions
with EXFO
|
|
STEPHEN
BULL
Quebec
City, Quebec
|
Vice-President,
Research and Development, Telecom Division
|
|
NORMAND
DUROCHER
St-Sauveur,
Quebec
|
Vice-President,
Human Resources
|
|
ALLAN
FIRHOJ
Georgestown,
Ontario
|
Vice-President
and General Manager, Life Sciences and Industrial
Division
|
|
ROBERT
FITTS
Minesing,
Ontario
|
Vice-President,
Product Management - Copper Access Products
|
|
ÉTIENNE
GAGNON
Quebec
City, Quebec
|
Vice-President,
Product Management - Optical and Protocol Products
|
|
LUC
GAGNON
St-Augustin-de-Desmaures,
Quebec
|
Vice-President,
Telecom Manufacturing Operations
|
|
JUAN-FELIPE
GONZÁLEZ
Montreal,
Quebec
|
Vice-President,
Telecom Sales - International
|
|
GERMAIN
LAMONDE
Quebec
City, Quebec
|
Chairman
of the Board, President and Chief Executive Officer
|
|
PIERRE
MARCOUILLER
Magog,
Quebec
|
Independent
Director
|
|
GUY
MARIER
Lakefield
Gore, Quebec
|
Independent
Director
|
|
PIERRE
PLAMONDON, CA
Quebec
City, Quebec
|
Vice-President,
Finance and Chief Financial Officer
|
|
BENOIT
RINGUETTE
Quebec
City, Quebec
|
Corporate
Secretary and Legal Counsel
|
|
DAVID
A. THOMPSON
Newton,
North Carolina
|
Independent
Director
|
|
ANDRÉ
TREMBLAY
Outremont,
Quebec
|
Independent
Director
|
|
MICHAEL
UNGER
Richmond
Hill, Ontario
|
Independent
Lead Director
|
|
DANA
YEARIAN
Lake
Forest, Illinois
|
Vice-President,
Telecom Sales - North America
|
Annual
Retainer for Directors:
(1)
|
CA$50,000
(2)
|
US$43,550
(3)
|
Annual
Retainer for Committee Chairman:
|
CA$5,000
|
US$4,355
(3)
|
Annual
Retainer for Committee Members:
|
CA$3,000
|
US$2,613
(3)
|
Fees
for all Meetings Attended per day in Person:
|
CA$1,000
|
US$871
(3)
|
Fees
for all Meetings Attended per day by Telephone:
|
CA$500
|
US$436
(3)
|
(1) |
All
the Directors elected to receive 50% of their Annual Retainer in
form of
Deferred Share Units.
|
(2) |
The
Annual Retainer for Mr. David A. Thompson is US$50,000
(CA$57,405).
|
(3) |
The
compensation information has been converted from Canadian dollars
to U.S.
dollars based upon an average foreign exchange rate of CA$1.1481
= US$1.00
for 2006.
|
Name
|
Annual
Compensation Paid in Cash (US$)
(1)
|
Annual
Compensation Paid in DSUs (#)
(2)
|
Estimated
Value of DSUs at the time of grant (US$)
(3)
|
Total
Attendance Fees Paid in Cash (US$)
(1)
|
Pierre
Marcouiller
(4)
|
27,001
|
3,812
|
21,775
|
6,533
|
Guy
Marier
(4)
|
27,001
|
3,812
|
21,775
|
6,968
|
David
A. Thompson
(5)
|
27,613
|
4,308
|
25,000
|
3,049
|
André
Tremblay
(6)
|
28,743
|
3,812
|
21,775
|
6,097
|
Michael
Unger
(7)
|
28,743
|
3,812
|
21,775
|
6,533
|
(1) |
The
compensation information has been converted from Canadian dollars
to U.S.
dollars based upon an average foreign exchange rate of CA$1.1481
= US$1.00
for 2006, except for Mr. David A. Thompson who is paid in U.S. dollars
for
the portion of his annual retainer for Director. The Annual Compensation
includes, as the case may be, the retainer for Director, Committee
Members
and Committee Chairman.
|
(2) |
Indicates
the number of Subordinate Voting Shares granted under the Deferred
Share
Unit Plan. A DSU is converted in a Subordinate Voting Share when
a
Director ceases to be a member of the
Board.
|
(3) |
The
estimated value at the time of grant of a DSU is determined based
on the
highest of the closing prices of the Subordinate Voting Shares on
the
Toronto Stock Exchange and the NASDAQ National Market on the last
trading
day preceding the grant date, using the noon buying rate of the Federal
Reserve Bank of New York on the grant date to convert the NASDAQ
National
Market closing price to Canadian dollars, as required. The value
at
vesting of a DSU is equivalent to the market value of a Subordinate
Voting
Share when a DSU is converted to such Subordinate Voting
Share.
|
(4) |
Member
of the Audit Committee and the Human Resources
Committee.
|
(5) |
Member
of the Human Resources Committee.
|
(6) |
Member
of the Human Resources Committee and Chairman of the Audit
Committee.
|
(7) |
Member
of the Audit Committee, Chairman of the Human Resources Committee
and Lead
Director.
|
Name
and Principal
Position
|
Financial
Years
|
Salary
(1)
($)
|
Bonus
(2)
($)
|
Other
Annual Compensation ($)
|
Securities
Under Options
(3)
(#)
|
Restricted
Share Units
(4)
(#)
|
All
Other
Compensation
($)
|
Germain
Lamonde,
President
and Chief Executive Officer
|
2006
|
271,753
(US)
312,000
(CA)
|
147,558
(US)
169,412
(CA)
|
−
|
11,218
|
21,477
|
−
|
2005
|
243,605
(US)
300,000
(CA)
|
121,729
(US)
149,909
(CA)
|
−
|
17,942
|
13,089
|
−
|
|
2004
|
206,751
(US)
275,000
(CA)
|
57,115
(US)
75,969
(CA)
|
−
|
−
|
−
|
−
|
|
Pierre
Plamondon,
Vice-President
Finance and Chief Financial Officer
|
2006
|
165,691
(US)
190,230
(CA)
|
60,167
(US)
69,078
(CA)
|
−
|
3,653
|
6,994
|
4,283
(US)
(5)
4,918
(CA)
|
2005
|
151,441
(US)
186,500
(CA)
|
48,735
(US)
60,017
(CA)
|
−
|
5,383
|
33,927
|
2,316
(US)
(5)
2,852
(CA)
|
|
2004
|
135,328
(US)
180,000
(CA)
|
17,451
(US)
23,211
(CA)
|
−
|
−
|
−
|
1,429
(US)
(5)
1,901
(CA)
|
Name
and Principal
Position
|
Financial
Years
|
Salary
(1)
($)
|
Bonus
(2)
($)
|
Other
Annual Compensation ($)
|
Securities
Under Options
(3)
(#)
|
Restricted
Share Units
(4)
(#)
|
All
Other
Compensation
($)
|
Juan-Felipe
Gonzalez,
Vice-President
Telecom Sales - International
|
2006
|
272,518
(US)
312,878
(CA)
|
12,891
(US)
14,800
(CA)
|
−
|
3,505
|
6,716
|
−
|
2005
|
246,323
(US)
303,347
(CA)
|
6,015
(US)
7,407
(CA)
|
−
|
5,482
|
33,998
|
−
|
|
2004
|
231,597
(US)
308,047
(CA)
|
563,867
(US)
750,000
(CA)
(6)
|
−
|
−
|
−
|
−
|
|
Allan
Firhoj,
Vice-President
and General Manager, Life Sciences and Industrial Division
|
2006
|
139,361
(US)
160,000
(CA)
|
40,632
(US)
46,650
(CA)
|
−
|
2,404
|
4,602
|
−
|
2005
|
123,153
(US)
151,663
(CA)
|
18,355
(US)
22,604
(CA)
|
−
|
2,512
|
12,443
|
−
|
|
2004
|
107,796
(US)
143,379
(CA)
|
18,890
(US)
25,125
(CA)
|
−
|
−
|
−
|
−
|
|
Dana
Yearian,
Vice-President
Telecom Sales - North America
|
2006
|
173,424
(US)
(7)
199,109
(CA)
|
−
−
|
−
|
−
|
5,000
|
236
(US)
(5)
270
(CA)
|
2005
|
−
−
|
−
−
|
−
|
−
|
−
|
-
|
|
2004
|
-
-
|
-
-
|
-
|
-
|
-
|
-
|
(1) |
The
compensation information for Canadian residents has been converted
from
Canadian dollars to U.S. dollars based upon an average foreign exchange
rate of CA$1.1481 = US$1.00 for 2006, CA$1.2315 = US$1.00 for 2005
and
CA$1.3301 = US$1.00 for 2004. The currency conversions cause these
reported salaries to fluctuate from year-to-year because of the
fluctuation in exchange rate.
|
(2) |
A
portion of the bonus amounts is paid in cash in the year for which
they
are awarded and the balance is paid in cash in the year following
the
financial year for which they are
awarded.
|
(3) |
Indicates
the number of Subordinate Voting Shares underlying the options granted
under the Long-Term Incentive Plan during the financial year
indicated.
|
(4) |
Indicates
the number of Restricted Share Units granted under the Long-Term
Incentive
Plan during the financial year
indicated.
|
(5) |
Indicates
the amount contributed by the Corporation during the financial year
indicated to the Deferred Profit Sharing Plan, as applicable, for
the
benefit of the Named Executive Officer. Mr. Lamonde is not eligible
to
participate in the Deferred Profit Sharing Plan and Mr. Gonzalez did
not participate.
|
(6) |
Pursuant
to the terms of his employment agreement, Mr. Juan-Felipe Gonzalez
receive
a cash payment of CA$750,000 because he did not voluntarily resign
and was
not dismissed with cause prior to September 2003. An amount of CA$500,000
was disbursed on October 17 2003 and the remaining CA$250,000
was disbursed on January 25, 2004.
|
(7) |
This
amount represents Mr. Yearian’s annual base salary. Since Mr. Yearian
joined the Corporation on August 14, 2006, the base salary paid to
Mr.
Yearian for the financial year ended August 31, 2006 amounted to
US$7,851
(CA$9,014).
|
· |
Performance-based:
Executive compensation levels reflect both corporation and individual
results based on specific quantitative and qualitative objectives
established at the start of each financial year in keeping with our
long-term strategic objectives.
|
· |
Aligned
with shareholder interests:
A
significant proportion of incentive compensation for executives is
composed of equity awards to ensure that executives are aligned with
the
principles of sustained long-term shareholder value
growth.
|
· |
Market
competitive:
Compensation of executives is designed to be externally competitive
when
compared against executives of comparable peer companies, and in
consideration of our results relative to the results of
peers.
|
· |
Individually
equitable:
Compensation levels are also designed to reflect individual factors
such
as scope of responsibility, experience, and performance against individual
measures.
|
Measure
|
Weighting
Mr. Lamonde and Mr. Plamondon
|
Weighting
Mr. Firhoj
|
Sales
|
35%
|
30%
|
Earnings
|
15%
|
25%
|
Gross
margin
|
25%
|
25%
|
Customer
satisfaction (quality and on time delivery)
|
25%
|
20%
|
Personal
objectives (multiplier)
|
0%
- 125%
|
0%
- 125%
|
Number
of Options
|
%
of Issued and Outstanding Options
|
Weighted
Average Exercise Price ($US/Security)
|
|
President
and CEO (one individual)
|
179,642
|
7.36%
|
9.05
|
Board
of Directors (five individuals)
|
194,375
|
7.97%
|
6.23
|
Management
and Corporate Officers (eight individuals)
|
313,836
|
12.87%
|
15.42
|
Number
of RSUs
|
%
of Issued and
Outstanding
RSUs
|
Weighted
Average Fair Value at the Time of Grant
$US/RSU
|
|
President
and CEO (one individual)
|
34,566
|
10.54%
|
4.73
|
Board
of Directors (five individuals)
|
-
|
-
|
-
|
Management
and Corporate Officers (ten individuals)
|
184,161
|
56,17%
|
4.66
|
Measure
|
Weighting
ALL
|
Sales
|
35%
|
Earnings
|
15%
|
Gross
margin
|
25%
|
Customer
satisfaction (quality and on time delivery)
|
25%
|
Personal
objectives (multiplier)
|
0%
- 125%
|
Number
of DSUs
|
%
of Issued and Outstanding DSUs
|
Weighted
Average Fair Value at the Time of Grant
$US/DSU
|
|
Board
of Directors (five individuals)
|
43,290
|
100%
|
5.07
|
DSUs
#
|
Weighted
Average Fair Value at the Time of Grant US$/DSU
|
Vesting
|
19,556
|
5.81
|
At
the time Director cease to be a member of the Board of the
Corporation
|
RSUs
#
|
Fair
Value at the Time of Grant US$/RSU
|
Vesting
(1)
|
61,253
|
4.76
|
100%
on the fifth anniversary date of the grant in December 2005 subject
to
early vesting up to 1/3 on the third anniversary date of the
grant and up
to 50% of the remaining units on the fourth anniversary date
of the grant
if the performance objectives are fully attained.
(2)
|
86,700
|
5.59
|
50%
on the third and fourth anniversary dates of the grant in February
2006.
(3)
|
1,500
|
6.50
|
50%
on the third and fourth anniversary dates of the grant in February
2006.
(3)
|
13,850
|
6.58
|
50%
on the third and fourth anniversary dates of the grant in February
2006.
(3)
|
3,500
|
5.90
|
50%
on the third and fourth anniversary dates of the grant in June
2006.
(4)
|
2,000
|
6.27
|
50%
on the third and fourth anniversary dates of the grant in June
2006.
(4)
|
5,000
|
5.16
|
1/3
on each of the third, fourth and fifth anniversary dates of the
grant in
August 2006
(5)
|
(1) |
All
RSUs first vesting cannot be earlier than the third anniversary
date of
their grant.
|
(2) |
Those
RSUs granted in the financial year ended August 31, 2006 vest on
the fifth
anniversary date of the grant in December 2005 but are subject
to early
vesting on the third and fourth anniversary dates of the grant
on the
attainment of performance objectives as determined by our Board
of
Directors. Accordingly, subject to the attainment of performance
objectives, the first early vesting is up to 1/3 of the units on
the third
anniversary date of the grant and the second early vesting is up
to 50% of
the remaining units on the fourth anniversary date of the
grant.
|
(3) |
Those
RSUs granted in the financial year ended August 31, 2006 vest at
a rate of
1/2 annually commencing on the third anniversary date of the grant
in
February 2006.
|
(4) |
Those
RSUs granted in the financial year ended August 31, 2006 vest at
a rate of
1/2 annually commencing on the third anniversary date of the grant
in June
2006.
|
(5) |
Those
RSUs granted in the financial year ended August 31, 2006 vest at
a rate of
1/3 annually commencing on the third anniversary date of the grant
in
August 2006.
|
Name
|
RSUs
#
|
Percentage
of Net Total of RSUs Granted to Employees in Financial
Year
(%)
|
Fair
Value at the Time of Grant US$/RSU
|
Vesting
(1)
|
Germain
Lamonde
|
21,477
|
12.36
|
4.76
|
100%
on the fifth anniversary date of the grant in December 2005 subject
to
early vesting up to 1/3 on the third anniversary date of the grant
and up
to 50% of the remaining units on the fourth anniversary date of
the grant
if the performance objectives are fully attained.
(2)
|
Pierre
Plamondon
|
6,994
|
4.02
|
4.76
|
100%
on the fifth anniversary date of the grant in December 2005 subject
to
early vesting up to 1/3 on the third anniversary date of the grant
and up
to 50% of the remaining units on the fourth anniversary date of
the grant
if the performance objectives are fully attained.
(2)
|
Name
|
RSUs
#
|
Percentage
of Net Total of RSUs Granted to Employees in Financial
Year
(%)
|
Fair
Value at the Time of Grant US$/RSU
|
Vesting
(1)
|
Juan-Felipe
Gonzalez
|
6,716
|
3.86
|
4.76
|
100%
on the fifth anniversary date of the grant in December 2005 subject
to
early vesting up to 1/3 on the third anniversary date of the grant
and up
to 50% of the remaining units on the fourth anniversary date of
the grant
if the performance objectives are fully attained.
(2)
|
Allan
Firhoj
|
4,602
|
2.65
|
4.76
|
100%
on the fifth anniversary date of the grant in December 2005 subject
to
early vesting up to 1/3 on the third anniversary date of the grant
and up
to 50% of the remaining units on the fourth anniversary date of
the grant
if the performance objectives are fully attained.
(2)
|
Dana
Yearian
|
5,000
|
2.88
|
5.16
|
1/3
on each of third, fourth and fifth anniversary dates of the grant
in
August 2006.
(3)
|
(1) |
All
RSUs first vesting cannot be earlier than the third anniversary date
of
their grant.
|
(2) |
Those
RSUs granted in the financial year ended August 31, 2006 vest on
the fifth
anniversary date of the grant in December 2005 but are subject to
early
vesting on the third and fourth anniversary date of the grant on
the
attainment of performance objectives as determined by our Board of
Directors. Accordingly, subject to the attainment of performance
objectives, the first early vesting is up to 1/3 of the units on
the third
anniversary date of the grant and the second early vesting is up
to 50% of
the remaining units on the fourth anniversary date of the
grant.
|
(3) |
Those
RSUs granted in the financial year ended August 31, 2006 vest at
a rate of
1/3 annually commencing on the third anniversary date of the grant
in
August 2006.
|
(1) |
Member
of the Audit Committee.
|
(2) |
Member
of the Human Resources Committee.
|
(3) |
Chair
of the Audit Committee.
|
(4) |
Chair
of the Human Resources Committee.
|
(5) |
Corning
Incorporated is a diversified technology company that concentrate
its
efforts on high-impact growth opportunities. Corning combines its
expertise in specialty glass, ceramic materials, polymers and the
manipulation of the properties of light, with strong process and
manufacturing capabilities to develop, engineer and commercialize
significant innovative products for the telecommunications, flat
panel
display, environmental, semiconductor, and life sciences
industries.
|
Name
|
Subordinate
Voting Shares Owned
|
Currently
Exercisable Options Owned as of November 1, 2006
|
Total
Subordinate Voting Shares Beneficially Owned
(3)
|
Multiple
Voting Shares Beneficially Owned
(3)
|
Total
Percentage
of
Voting Power
|
||||||
In-the-money
(1)
|
Out-the-money
(2)
|
||||||||||
Number
|
Percent
|
Number
|
Percent
|
Number
|
Percent
|
Number
|
Percent
|
Number
|
Percent
|
Percent
|
|
Germain
Lamonde
(4)
|
483,500
|
*
|
50,000
|
*
|
104,968
|
*
|
638,468
|
*
|
37,143,000
|
100
|
92.3
|
Pierre
Plamondon
|
35,427
(5)
|
*
|
20,000
|
*
|
54,631
|
*
|
110,058
|
*
|
−
|
−
|
*
|
Pierre
Marcouiller
|
5,000
|
*
|
21,875
|
*
|
23,882
|
*
|
50,757
|
*
|
−
|
−
|
*
|
Guy
Marier
|
1,000
|
*
|
−
|
*
|
6,250
|
*
|
7,250
|
*
|
−
|
−
|
*
|
David
A. Thompson
|
2,100
|
*
|
21,875
|
*
|
17,734
|
*
|
41,709
|
*
|
−
|
−
|
*
|
André
Tremblay
|
6,650
(6)
|
*
|
21,875
|
*
|
19,691
|
*
|
48,216
|
*
|
−
|
−
|
*
|
Michael
Unger
|
−
|
*
|
21,875
|
*
|
20,568
|
*
|
42,443
|
*
|
−
|
−
|
*
|
Name
|
Subordinate
Voting Shares Owned
|
Currently
Exercisable Options Owned as of November 1, 2006
|
Total
Subordinate Voting Shares Beneficially Owned
(3)
|
Multiple
Voting Shares Beneficially Owned
(3)
|
Total
Percentage
of
Voting Power
|
||||||
In-the-money
(1)
|
Out-the-money
(2)
|
||||||||||
Number
|
Percent
|
Number
|
Percent
|
Number
|
Percent
|
Number
|
Percent
|
Number
|
Percent
|
Percent
|
|
Juan-Felipe
Gonzalez
|
40,100
|
*
|
7,500
|
*
|
85,271
|
*
|
132,871
|
*
|
−
|
−
|
*
|
Allan
Firhoj
|
−
|
*
|
3,750
|
*
|
18,837
|
*
|
22,587
|
*
|
−
|
−
|
*
|
Dana
Yearian
|
−
|
*
|
−
|
*
|
−
|
*
|
−
|
*
|
−
|
−
|
*
|
Other
executive officers as a group
|
35,025
|
*
|
35,000
|
*
|
50,764
|
*
|
120,789
|
*
|
−
|
−
|
*
|
All
of our Directors and executive officers as a group
|
608,802
|
*
|
203,750
|
*
|
402,596
|
1.3
|
1,215,148
|
3.8
|
37,143,000
|
100
|
92.5
|
*
|
Less
than 1%.
|
(1)
|
“In-the-money”
options are options for which the market value of the underlying
securities is higher than the price at which such securities may
be bought
from the Corporation. As of November 1, 2006 the market value of
a
Subordinate Voting Share was
US$4.90.
|
(2)
|
“Out-the-money”
options are options for which the market value of the underlying
securities is lower than the price of which such securities may be
bought
from the Corporation.
|
(3)
|
Beneficial
ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to securities.
Options that are currently exercisable (including options that have
an
exercise price above the market price) are deemed to be outstanding
and to
be beneficially owned by the person holding such options for the
purpose
of computing the percentage ownership of such person, but are not
treated
as outstanding for the purpose of computing the percentage ownership
of
any other person. Accordingly, DSUs and RSUs are not
included.
|
(4)
|
The
number of shares held by Germain Lamonde includes 1,900,000 multiple
voting shares held of record by Fiducie Germain Lamonde, 35,243,000
multiple voting shares and 483,500 subordinate voting shares held
of
record by G. Lamonde Investissements Financiers
inc.
|
(5)
|
The
number of shares held by Pierre Plamondon includes 6,874 subordinate
voting shares held of record by Fiducie Pierre
Plamondon.
|
(6)
|
The
number of subordinate voting shares held of record by André Tremblay is
held by 9104-5559 Québec Inc, a company controlled by Mr.
Tremblay.
|
Name
|
Securities
Under Options Granted
(1)
(#)
|
Exercise
Price
(2)
(US$/Security)
|
Expiration
Date
|
Germain
Lamonde
|
25,402
5,080
70,000
50,000
17,942
11,218
|
$26.00
$22.25
$9.13
$1.58
$4.51
$4.76
|
June
29, 2010
January
10, 2011
October
10, 2011
September
25, 2012
February
1, 2015
December
6, 2015
|
Pierre
Plamondon
|
8,700
10,000
5,000
9,240
19,000
25,000
5,383
3,653
|
$26.00
$45.94
$34.07
$22.25
$9.13
$1.58
$5.13
$4.76
|
June
29, 2010
September
13, 2010
October
11, 2010
January
10, 2011
October
10, 2011
September
25, 2012
October
26, 2014
December
6, 2015
|
Name
|
Securities
Under Options Granted
(1)
(#)
|
Exercise
Price
(2)
(US$/Security)
|
Expiration
Date
|
Pierre
Marcouiller
|
2,000
400
17,966
1,037
2,479
12,500
12,500
|
$26.00
$22.25
$9.13
$12.69
$5.65
$1.58
$3.51
|
June
29, 2010
January
10, 2011
October
10, 2011
December
1, 2011
March
1, 2012
September
25, 2012
October
27, 2013
|
Guy
Marier
|
12,500
|
$4.65
|
March
24, 2014
|
David
A. Thompson
|
2,000
400
15,334
12,500
12,500
|
$26.00
$22.25
$9.13
$1.58
$3.51
|
June
29, 2010
January
10, 2011
October
10, 2011
September
25, 2012
October
27, 2013
|
André
Tremblay
|
2,000
400
17,291
12,500
12,500
|
$26.00
$22.25
$9.13
$1.58
$3.51
|
June
29, 2010
January
10, 2011
October
10, 2011
September
25, 2012
October
27, 2013
|
Michael
Unger
|
2,000
400
18,168
12,500
12,500
|
$26.00
$22.25
$9.13
$1.58
$3.51
|
June
29, 2010
January
10, 2011
October
10, 2011
September
25, 2012
October
27, 2013
|
Juan
Felipe Gonzalez
|
6,900
15,000
15,000
15,630
15,000
15,000
7,500
5,482
3,505
|
$26.00
$45.94
$34.07
$22.25
$9.13
$12.22
$1.58
$5.13
$4.76
|
June
29, 2010
September
13, 2010
October
11, 2010
January
10, 2011
October
10, 2011
January
3, 2012
September
25, 2012
October
26, 2014
December
6, 2015
|
Allan
Firhoj
|
10,000
8,000
3,750
2,512
2,404
|
$23.40
$9.13
$1.58
$5.13
$4.76
|
March
15, 2011
October
10, 2011
September
25, 2012
October
26, 2014
December
6, 2015
|
Dana
Yearian
|
−
|
−
|
−
|
Other
Executive Officers as a group
|
900
8,000
4,000
6,180
25,000
30,000
10,000
12,369
2,000
8,728
|
$26.00
$45.94
$34.07
$22.25
$9.13
$1.58
$3.19
$5.13
$4.51
$4.76
|
June
29, 2010
September
13, 2010
October
11, 2010
January
10, 2011
October
10, 2011
September
25, 2012
January
7, 2013
October
26, 2014
February
1, 2015
December
6, 2015
|
Name
|
DSUs
|
RSUs
|
||||
Number
|
Percentage
|
Estimated
Average Value at the time of grant US$/DSU
(1)
|
Number
|
Percentage
|
Fair
Value at the time of grant US$/RSU
(2)
|
|
Germain
Lamonde
|
−
|
−
|
−
|
13,089
(3)
|
3.1%
|
4.69
|
−
|
−
|
−
|
21,477
(4)
|
5.0%
|
4.76
|
|
−
|
−
|
−
|
25,347
(5)
|
5.9%
|
6.02
|
|
Pierre
Plamondon
|
−
|
−
|
−
|
3,927
(3)
|
1.0%
|
4.69
|
−
|
−
|
−
|
30,000
(6)
|
7.0%
|
4.69
|
|
−
|
−
|
−
|
6,994
(4)
|
1.6%
|
4.76
|
|
−
|
−
|
−
|
8,430
(5)
|
2.0%
|
6.02
|
|
−
|
−
|
−
|
4,500
(7)
|
1.1%
|
6.02
|
|
Pierre
Marcouiller
|
8,349
(8)
|
19.3%
|
5.07
|
−
|
−
|
−
|
Guy
Marier
|
8,349
(8)
|
19.3%
|
5.07
|
−
|
−
|
−
|
David
A. Thompson
|
9,894
(8)
|
22.8%
|
5.07
|
−
|
−
|
−
|
André
Tremblay
|
8,349
(8)
|
19.3%
|
5.07
|
−
|
−
|
−
|
Michael
Unger
|
8,349
(8)
|
19.3%
|
5.07
|
−
|
−
|
−
|
Juan-Felipe
Gonzalez
|
−
|
−
|
−
|
3,998
(3)
|
0.9%
|
4.69
|
−
|
−
|
−
|
30,000
(6)
|
7.0%
|
4.69
|
|
−
|
−
|
−
|
6,716
(4)
|
1.6%
|
4.76
|
|
Allan
Firhoj
|
−
|
−
|
−
|
2,443
(3)
|
0.6%
|
4.69
|
−
|
−
|
−
|
10,000
(6)
|
2.3%
|
4.69
|
|
−
|
−
|
−
|
4,602
(4)
|
1.1%
|
4.76
|
|
−
|
−
|
−
|
6,145
(5)
|
1.4%
|
6.02
|
|
Dana
Yearian
|
−
|
−
|
−
|
5,000
(9)
|
1.2%
|
5.16
|
−
|
−
|
−
|
6,645
(5)
|
1.6%
|
6.02
|
|
Other
executive officers as a group
|
−
|
−
|
−
|
9,023
(3)
|
2.1%
|
4.69
|
−
|
−
|
−
|
51,500
(6)
|
12.1%
|
4.69
|
|
−
|
−
|
−
|
16,708
(4)
|
3.9%
|
4.76
|
|
−
|
−
|
−
|
25,235
(5)
|
5.9%
|
6.02
|
|
−
|
−
|
−
|
20,500
(7)
|
4.8%
|
6.02
|
|
All
of the directors and executive officers as a group
|
−
|
−
|
−
|
32,480
(3)
|
7.6%
|
4.69
|
−
|
−
|
−
|
121,500
(6)
|
28.4%
|
4.69
|
|
−
|
−
|
−
|
56,497
(4)
|
13.2%
|
4.76
|
|
−
|
−
|
−
|
71,802
(5)
|
16.8%
|
6.02
|
|
43,290
|
100%
|
5.07
|
25,000
(7)
|
5.9%
|
6.02
|
(1) |
The
estimated average value at the time of grant of a DSU is the average
of
the estimated value at the time of grant of a DSU which is determined
based on the highest of the closing prices of the Subordinate Voting
Shares on the Toronto Stock Exchange and the NASDAQ National Market
on the
last trading day preceding the grant date, using the noon buying
rate of
the Federal Reserve Bank of New York on the grant date to convert
the
NASDAQ National Market closing price to Canadian dollars, as required.
The
value at vesting of a DSU is equivalent to the market value of a
Subordinate Voting Share when a DSU is converted to such Subordinate
Voting Share.
|
(2) |
The
fair value at the time of grant of a RSU is equal to the market value
of
Subordinate Voting Shares at the time RSUs are
granted.
|
(3) |
Those
RSUs will vest on the fifth anniversary date of the grant in January
2005
but are subject to early vesting on the third and fourth anniversary
date
of the grant on the attainment of performance objectives as determined
by
the Board of Directors. Accordingly, subject to the attainment of
performance objectives, the first early vesting is up to 1/3 of the
units
on the third anniversary date of the grant and the second early vesting
is
up to 50% of the remaining units on the fourth anniversary date of
the
grant.
|
(4) |
Those
RSUs will vest on the fifth anniversary date of the grant in December
2005
but are subject to early vesting on the third and fourth anniversary
date
of the grant on the attainment of performance objectives as determined
by
the Board of Directors. Accordingly, subject to the attainment of
performance objectives, the first early vesting is up to 1/3 of the
units
on the third anniversary date of the grant and the second early vesting
is
up to 50% of the remaining units on the fourth anniversary date of
the
grant.
|
(5) |
Those
RSUs will vest on the fifth anniversary date of the grant in October
2006
but are subject to early vesting on the third and fourth anniversary
date
of the grant on the attainment of performance objectives as determined
by
the Board of Directors. Accordingly, subject to the attainment of
performance objectives, the first early vesting is up to 1/3 of the
units
on the third anniversary date of the grant and the second early vesting
is
up to 50% of the remaining units on the fourth anniversary date of
the
grant.
|
(6) |
Those
RSUs will vest at a rate of 55%, 35% and 10%, on the third, fourth
and
fifth anniversary dates of the grant in January
2005.
|
(7) |
Those
RSUs will vest at a rate of 1/3 annually commencing on the third
anniversary date of the grant in
October 2006.
|
(8) |
Those
DSUs will vest at the time Director cease to be a member of the Board
of
the Corporation.
|
(9) |
Those
RSUs will vest at a rate of 1/3 annually commencing on the third
anniversary date of the grant in August
2006.
|
Designation
of Class
|
Number
of Securities held in escrow
|
Percentage
of Class
|
||
Subordinate
Voting Shares
|
nil
|
nil
|
||
Multiple
Voting Shares
|
nil
|
nil
|
Multiple
Voting
Shares Beneficially Owned
(1)
|
Subordinate
Voting Shares Beneficially Owned
(1)
|
Total
Percentage of
Voting
Power
|
||||||||||||||
Name
|
Number
|
Percent
|
Number
|
Percent
|
Percent
|
|||||||||||
Germain
Lamonde
(2)
|
37,143,000
|
100
|
%
|
483,500
|
1.53
|
%
|
92.27
|
%
|
||||||||
Fiducie
Germain Lamonde
(3)
|
1,900,000
|
5
|
%
|
Nil
|
Nil
|
4.71
|
%
|
|||||||||
G.
Lamonde Investissements Financiers inc.
(4)
|
35,243,000
|
95
|
%
|
Nil
|
Nil
|
87.44
|
%
|
|||||||||
FMR
Corporation
(5)
|
Nil
|
Nil
|
4,624,700
|
14.62
|
%
|
1.15
|
%
|
|||||||||
Kern
Capital Management, LLC
(6)
|
Nil
|
Nil
|
4,596,700
|
14.53
|
%
|
1.14
|
%
|
(2) |
The
number of shares held by Germain Lamonde includes 1,900,000 multiple
voting shares held of record by Fiducie Germain Lamonde and 35,243,000
multiple voting shares and 483,500 subordinate voting shares held
of
record by G. Lamonde Investissements Financiers
inc..
|
(3) |
Fiducie
Germain Lamonde is a family trust for the benefit of Mr. Lamonde
and
members of his family.
|
(4) |
G.
Lamonde Investissements Financiers inc. is a company controlled by
Mr.
Lamonde.
|
(5) |
As
of September 30, 2006, Fidelity Management and Research Company,
a wholly
owned subsidiary of FMR Corporation, is the beneficial owner of this
number of subordinate voting shares as a result of acting as investment
advisor to various investment companies
.
|
(6) |
As
of September 30, 2006, Kern Capital Management LLC controls the voting
rights attached to this number of subordinate voting shares through
relationships with several clients and does not beneficially own
directly
this number of subordinate voting
shares.
|
Location
|
Square
Footage
|
Annual
Rent
|
Expiry
Date
|
465
Godin
|
24,000
|
CA$144,000
|
November
30, 2006
|
A. |
Consolidated Statements and Other Financial
Information
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
2004
|
||||||||
Balance
- Beginning of year
|
$
|
352
|
$
|
510
|
$
|
568
|
||||
Addition
charged to earnings
|
108
|
316
|
403
|
|||||||
Write-offs
of uncollectible accounts
|
(123
|
)
|
(23
|
)
|
(48
|
)
|
||||
Recovery
of uncollectible accounts
|
(111
|
)
|
(464
|
)
|
(456
|
)
|
||||
Business
combination
|
218
|
−
|
−
|
|||||||
Foreign
currency translation adjustment
|
7
|
13
|
43
|
|||||||
Balance
- End of year
|
$
|
451
|
$
|
352
|
$
|
510
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
2004
|
||||||||
Balance
- Beginning of year
|
$
|
38,406
|
$
|
32,613
|
$
|
28,846
|
||||
Addition
(reduction) charged to earnings
|
(1,877
|
)
|
3,375
|
3,954
|
||||||
Foreign
currency translation adjustment
|
2,014
|
2,418
|
(187
|
)
|
||||||
Balance
- End of year
|
$
|
38,543
|
$
|
38,406
|
$
|
32,613
|
Years
ended August 31,
|
|||||||||||||||||||
2006
|
2005
|
2004
|
|||||||||||||||||
Export
Sales
|
$
|
119,486
|
93
|
%
|
$
|
90,386
|
92
|
%
|
$
|
68,812
|
92
|
%
|
|||||||
Domestic
Sales
|
|
8,767
|
7
|
|
6,830
|
8
|
|
5,818
|
8
|
||||||||||
$
|
128,253
|
100
|
%
|
$
|
97,216
|
100
|
%
|
$
|
74,630
|
100
|
%
|
B. |
Significant changes
|
Nasdaq
(US$)
|
TSX
(CA$)
|
||||||||||||
High
|
Low
|
High
|
Low
|
||||||||||
September
1, 2001 to August 31, 2002
|
15.00
|
1.35
|
23.80
|
2.05
|
|||||||||
September
1, 2002 to August 31, 2003
|
3.63
|
1.40
|
5.60
|
2.30
|
|||||||||
September
1, 2003 to August 31, 2004
|
7.09
|
2.71
|
9.15
|
3.75
|
|||||||||
September
1, 2004 to August 31, 2005
|
5.51
|
3.92
|
6.90
|
4.92
|
|||||||||
September
1, 2005 to August 31, 2006
|
8.69
|
4.32
|
9.60
|
5.15
|
|||||||||
2005
1st Quarter
|
5.51
|
4.27
|
6.90
|
5.73
|
|||||||||
2005
2nd Quarter
|
5.24
|
4.29
|
6.42
|
5.35
|
|||||||||
2005
3rd Quarter
|
4.99
|
3.93
|
6.05
|
4.95
|
|||||||||
2005
4th Quarter
|
5.00
|
3.92
|
6.10
|
4.92
|
|||||||||
2006
1st Quarter
|
5.05
|
4.32
|
5.92
|
5.15
|
|||||||||
2006
2nd Quarter
|
6.70
|
4.39
|
7.64
|
5.16
|
|||||||||
2006
3rd Quarter
|
8.69
|
6.44
|
9.60
|
7.18
|
|||||||||
2006
4th Quarter
|
7.01
|
4.86
|
7.80
|
5.45
|
|||||||||
2006
May
|
8.69
|
6.44
|
9.56
|
7.18
|
|||||||||
2006
June
|
7.01
|
5.21
|
7.80
|
5.81
|
|||||||||
2006
July
|
6.03
|
5.20
|
6.72
|
5.85
|
|||||||||
2006
August
|
5.66
|
4.86
|
6.30
|
5.45
|
|||||||||
2006
September
|
5.85
|
5.32
|
6.63
|
5.91
|
|||||||||
2006
October
|
6.13
|
4.93
|
6.90
|
5.55
|
|||||||||
2006
November
|
5.73
|
4.89
|
6.60
|
5.55
|
A. |
Share
Capital
|
(a)
|
an
individual citizen or resident of the United
States;
|
(b)
|
a
corporation created or organized under the laws of the United States
or
any state thereof and the District of
Columbia;
|
(c)
|
an
estate the income of which is subject to United States federal
income
taxation regardless of its source;
|
(d)
|
a
trust if (1) a court within the United States is able to exercise
primary
jurisdiction over its administration and one or more U.S. persons
have
authority to control all substantial decisions of the trust or
(2) the
trust has a valid election in effect under applicable U.S. Treasury
regulations to be treated as a U.S. person;
or
|
(e)
|
any
other person whose worldwide income or gain is otherwise subject
to U.S.
federal income taxation on a net income basis;
|
· |
the
Internal Revenue Code;
|
· |
U.S.
judicial decisions;
|
· |
administrative
pronouncements;
|
· |
existing
and proposed Treasury regulations;
and
|
· |
the
Canada - U.S. Income Tax Treaty.
|
· |
the
holder’s holding period for the subordinate voting shares, with a
preferential rate available for subordinate voting shares held
for more
than one year; and
|
· |
the
holder’s marginal tax rate for ordinary
income.
|
· |
such
gain is effectively connected with the conduct by such Non-U.S.
Holder of
a trade or business in the United States;
or
|
· |
in
the case of any gain realized by an individual Non-U.S. Holder,
such
Non-U.S. Holder is present in the United States for 183 days or more
in the taxable year of such sale and certain other conditions are
met.
|
· |
at
least 75% of our gross income for the taxable year is passive income;
or
|
· |
at
least 50% of the average value of our assets is attributable to
assets
that produce or are held for the production of passive income.
|
· |
dividends;
|
· |
interest;
|
· |
rents
or royalties, other than certain rents or royalties derived from
the
active conduct of trade or business;
|
· |
annuities;
or
|
· |
gains
from assets that produce passive income.
|
· |
any
gain realized on the sale or other disposition of subordinate voting
shares; and
|
· |
any
“excess distribution” by us to the U.S. Holder.
|
· |
the
gain or excess distribution would be allocated ratably over the
U.S.
Holder’s holding period for the subordinate voting shares;
|
· |
the
amount allocated to the taxable year in which the gain or excess
distribution was realized would be taxable as ordinary income;
|
· |
the
amount allocated to each prior year, with certain exceptions, would
be
subject to tax at the highest tax rate in effect for that year;
and
|
· |
the
interest charge generally applicable to underpayments of tax would
be
imposed in respect of the tax attributable to each such year.
|
· |
is
resident in the United States and not resident in Canada,
|
· |
holds
the subordinate voting shares as capital property,
|
· |
does
not have a “permanent establishment” or “fixed base” in Canada, as defined
in the Convention; and
|
· |
deals
at arm’s length with us. Special rules, which are not discussed below,
may
apply to “financial institutions”, as defined in the ITA, and to
non-resident insurers carrying on an insurance business in Canada
and
elsewhere.
|
Years
ending August 31,
|
||||||||||
2007
|
2008
|
2009
|
||||||||
Forward
exchange contracts to sell US dollars in exchange for Canadian
dollars
Contractual
amounts
|
$
|
37,000
|
$
|
17,800
|
$
|
9,000
|
||||
Weighted
average contractual exchange rates
|
1.1676
|
1.1388
|
1.1010
|
· |
Board
of Directors Corporate Governance
Guidelines;
|
· |
Code
of Ethics for our Principal Executive Officer and Senior Financial
Officers;
|
· |
Ethics
and Business Conduct Policy;
|
· |
Statement
of Reporting Ethical Violations (Whistle
Blower).
|
Number
|
Exhibit
|
1.1
|
Amended
Articles of Incorporation of EXFO (incorporated by reference
to Exhibit
3.1 of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000,
File No. 333-38956).
|
1.2
|
Amended
By-laws of EXFO (incorporated by reference to Exhibit 1.2 of
EXFO’s annual
report on Form-20F dated January 15, 2003, File No.
000-30895).
|
1.3
|
Amended
and Restated Articles of Incorporation of EXFO (incorporated
by reference
to Exhibit 1.3 of EXFO’s annual report on Form 20-F dated January 18,
2001, File No. 000-30895).
|
2.1
|
Form
of Subordinate Voting Share Certificate (incorporated by reference
to
Exhibit 4.1 of EXFO’s Registration Statement on Form F-1 filed on June 9,
2000, File No. 333-38956).
|
2.2
|
Form
of Registration Rights Agreement between EXFO and Germain Lamonde
dated
July 6, 2000 ) (incorporated by reference to Exhibit 10.13 of
EXFO’s
Registration Statement on Form F-1 filed on June 9, 2000, File
No.
333-38956).
|
3.1
|
Form
of Trust Agreement among EXFO, Germain Lamonde, GEXFO Investissements
Technologiques inc., Fiducie Germain Lamonde and G. Lamonde
Investissements Financiers inc. (incorporated by reference to
Exhibit 4.2
of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000, File
No. 333-38956).
|
4.1
|
Agreement
of Merger and Plan of Reorganization, dated as of November 4,
2000, by and
among EXFO, EXFO Sub, Inc., EXFO Burleigh Instruments, Inc.,
Robert G.
Klimasewki, William G. May, Jr., David J. Farrell and William
S. Gornall
(incorporated by reference to Exhibit 4.1 of EXFO’s annual report on Form
20-F dated January 18, 2001, File No. 000-30895).
|
4.2
|
Amendment
No. 1 to Agreement of Merger and Plan of Agreement, dated as
of December
20, 2000, by and among EXFO, EXFO Sub, Inc., EXFO Burleigh Instruments,
Inc., Robert G. Klimasewski, William G. May, Jr., David J. Farrell
and
William S. Gornall (incorporated by reference to Exhibit 4.2
of EXFO’s
annual report on Form 20-F dated January 18, 2001, File No.
000-30895).
|
4.3
|
Agreement
of Merger, dated as of August 20, 2001, by and among EXFO, Buyer
Sub, and
Avantas Networks Corporation and Shareholders of Avantas Networks
corporation (incorporated by reference to Exhibit 4.3 of EXFO’s annual
report on Form 20-F dated January 18, 2002, File No.
000-30895).
|
4.4
|
Amendment
No. 1 dated as of November 1, 2002 to Agreement of Merger, dated
as of
August 20, 2001, by and among EXFO, 3905268 Canada Inc., Avantas
Networks
Corporation and Shareholders of Avantas Networks (incorporated
by
reference to Exhibit 4.4 of EXFO’s annual report on Form 20-F dated
January 18, 2002, File No. 000-30895).
|
4.5
|
Offer
to purchase shares of Nortech Fibronic Inc., dated February 6,
2000 among
EXFO, Claude Adrien Noel, 9086-9314 Québec inc., Michel Bédard, Christine
Bergeron and Société en Commandite Capidem Québec Enr. and Certificate of
Closing, dated February 7, 2000 among the same parties (including
summary
in English) (incorporated by reference to Exhibit 10.2 of EXFO’s
Registration Statement on Form F-1 filed on June 9, 2000, File
No.
333-38956).
|
4.6
|
Share
Purchase Agreement, dated as of March 5, 2001, among EXFO Electro-Optical
Engineering, Inc., John Kennedy, Glenn Harvey and EFOS Corporation
(incorporated by reference to Exhibit 4.1 of EXFO’s Registration Statement
on Form F-3 filed on July 13, 2001, File No. 333-65122).
|
4.7
|
Amendment
Number One, dated as of March 15, 2001, to Share Purchase Agreement,
dated
as of March 5, 2001, among EXFO Electro-Optical Engineering,
Inc., John
Kennedy, Glenn Harvey and EFOS Corporation. (incorporated by
reference to
Exhibit 4.2 of EXFO’s Registration Statement on Form F-3 filed on July 13,
2001, File No. 333-65122).
|
4.8
|
Share
Purchase Agreement, dated as of November 2, 2001 between JDS
Uniphase Inc.
and 3905268 Canada Inc. (incorporated by reference to Exhibit
4.8 of
EXFO’s annual report on Form 20-F dated January 18, 2002, File No.
000-30895).
|
4.9
|
Intellectual
Property Assignment and Sale Agreement between EFOS Inc., EXFO
Electro-Optical Engineering, Inc., John Kennedy, Glenn Harvey
and EFOS
Corporation. (incorporated by reference to Exhibit 4.3 of EXFO’s
Registration Statement on Form F-3 filed on July 13, 2001, File
No.
333-65122).
|
4.10
|
Offer
to acquire a building, dated February 23, 2000, between EXFO
and Groupe
Mirabau inc. and as accepted by Groupe Mirabau inc. on February
24, 2000
(including summary in English) (incorporated by reference to
Exhibit 10.3
of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000, File
No. 333-38956).
|
4.11
|
Lease
Agreement, dated December 1, 1996, between EXFO and GEXFO Investissements
Technologiques inc., as assigned to 9080-9823 Québec inc. on September 1,
1999 (including summary in English) (incorporated by reference
to Exhibit
10.4 of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000,
File No. 333-38956).
|
4.12
|
Lease
Agreement, dated March 1, 1996, between EXFO and GEXFO Investissements
Technologiques inc., as assigned to 9080-9823 Québec inc. on September 1,
1999 (including summary in English) (incorporated by reference
to Exhibit
10.5 of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000,
File No. 333-38956).
|
4.13
|
Lease
renewal of the existing leases between 9080-9823 Québec inc. and EXFO,
dated November 30, 2001(incorporated by reference to Exhibit
4.13 of
EXFO’s annual report on Form 20-F dated January 18, 2002, File No.
000-30895).
|
4.14
|
Loan
Agreement between EXFO and GEXFO Investissements Technologiques
inc.,
dated May 11, 1993, as assigned to 9080-9823 Québec inc. on September
1, 1999 (including summary in English) (incorporated by reference
to
Exhibit 10.9 of EXFO’s Registration Statement on Form F-1 filed on June 9,
2000, File No. 333-38956).
|
4.15
|
Resolution
of the Board of Directors of EXFO, dated September 1, 1999, authorizing
EXFO to acquire GEXFO Distribution Internationale inc. from GEXFO
Investissements Technologiques inc. (including summary in English)
(incorporated by reference to Exhibit 10.10 of EXFO’s Registration
Statement on Form F-1 filed on June 9, 2000, File No.
333-38956).
|
4.16
|
Form
of Promissory Note of EXFO issued to GEXFO Investissements Technologiques
inc. dated June 27, 2000 ) (incorporated by reference to Exhibit
10.12 of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000,
File No. 333-38956).
|
4.17
|
Term
Loan Offer, dated March 28, 2000, among EXFO and National Bank
of Canada
as accepted by EXFO on April 3, 2000 (including summary in English)
(incorporated by reference to Exhibit 10.11 of EXFO’s Registration
Statement on Form F-1 filed on June 9, 2000, File No.
333-38956).
|
4.18
|
Employment
Agreement of Germain Lamonde dated May 29, 2000 (incorporated
by reference
to Exhibit 10.15 of EXFO’s Registration Statement on Form F-1 filed on
June 9, 2000, File No. 333-38956).
|
4.19
|
Employment
Agreement of Bruce Bonini dated as of September 1, 2000 (incorporated
by
reference to Exhibit 4.24 of EXFO’s annual report on Form 20-F dated
January 18, 2002, File No. 000-30895).
|
4.20
|
Employment
Agreement of Juan-Felipe Gonzalez dated as of September 1, 2000
(incorporated by reference to Exhibit 4.25 of EXFO’s annual report on Form
20-F dated January 18, 2002, File No. 000-30895).
|
4.21
|
Employment
Agreement of David J. Farrell dated as of December 20, 2000 (incorporated
by reference to Exhibit 4.26 of EXFO’s annual report on Form 20-F dated
January 18, 2002, File No. 000-30895).
|
4.22
|
Deferred
Profit Sharing Plan, dated September 1, 1998 (incorporated by
reference to
Exhibit 10.6 of EXFO’s Registration Statement on Form F-1 filed on June 9,
2000, File No. 333-38956).
|
4.23
|
Stock
Option Plan, dated May 25, 2000 (incorporated by Reference to
Exhibit 10.7
of EXFO’s Registration Statement on Form F-1 filed on June 9, 2000, File
No. 333-38956).
|
4.24
|
Share
Plan, dated April 3, 2000 (incorporated by reference to Exhibit
10.8 of
EXFO’s Registration Statement on Form F-1 filed on June 9, 2000, File
No.
333-38956).
|
4.25
|
Directors’
Compensation Plan (incorporated by reference to Exhibit 10.17
of EXFO’s
Registration Statement on Form F-1 filed on June 9, 2000, File
No.
333-38956).
|
4.26
|
Restricted
Stock Award Plan, dated December 20, 2000 (incorporated by reference
to
Exhibit 4.21 of EXFO’s annual report on Form 20-F dated January 18, 2001,
File No. 000-30895).
|
4.27
|
Asset
Purchase Agreement
by
and Among EXFO Electro-Optical Engineering Inc., EXFO Gnubi Products
Group
Inc., gnubi communications, L.P., gnubi communications General
Partner,
LLC, gnubi communications Limited Partner, LLC, gnubi communications,
Inc., Voting Trust created by The Irrevocable Voting Trust Agreement
Among
Carol Abraham Bolton, Paul Abraham and James Ray Stevens, James
Ray
Stevens and Daniel J. Ernst dated September 5, 2002 (incorporated
by
reference to Exhibit 4.30 of EXFO’s annual report on Form 20-F dated
January 15, 2003, File No. 000-30895).
|
4.28
|
EXFO
Protocol Inc. Executive Employment Agreement with Sami Yazdi
signed
November 2, 2001 (incorporated by reference to Exhibit 4.28 of
EXFO’s
annual report on Form 20-F dated January 15, 2003, File No.
000-30895).
|
4.29
|
Second
Amending Agreement to the Employment Agreement of Bruce Bonini
dated as of
September 1, 2002, (incorporated by reference to Exhibit 4.29
of EXFO’s
annual report on Form 20-F dated January 15, 2004, File No.
000-30895).
|
4.30
|
Severance
and General Release Agreement with Bruce Bonini dated August
8, 2003,
(incorporated by reference to Exhibit 4.30 of EXFO’s annual report on Form
20-F dated January 15, 2004, File No. 000-30895).
|
4.31
|
Separation
Agreement and General Release with Sami Yazdi dated April 1,
2003,
(incorporated by reference to Exhibit 4.31 of EXFO’s annual report on Form
20-F dated January 15, 2004, File No. 000-30895).
|
4.32
|
Executive
Employment Agreement of James Stevens dated as of October 4,
2003,
(incorporated by reference to Exhibit 4.32 of EXFO’s annual report on Form
20-F dated January 15, 2004, File No. 000-30895).
|
4.33
|
Termination
Terms for John Holloran Jr. dated May 28, 2003, (incorporated
by reference
to Exhibit 4.33 of EXFO’s annual report on Form 20-F dated January 15,
2004, File No. 000-30895).
|
4.34
|
Employment
Agreement of Pierre Plamondon dated as of September 1, 2002,
(incorporated
by reference to Exhibit 4.34 of EXFO’s annual report on Form 20-F dated
January 15, 2004, File No. 000-30895).
|
4.35
|
Long-Term
Incentive Plan, dated May 25, 2000, amended in October 2004 and
effective
January 12, 2005 (incorporated by reference to Exhibit 4.35 of
EXFO’s
annual report on Form 20-F dated November 29, 2005, File No.
000-30895).
|
4.36
|
Deferred
Share Unit Plan, effective January 12, 2005 (incorporated by
reference to
Exhibit 4.36 of EXFO’s annual report on Form 20-F dated November 29, 2005,
File No. 000-30895).
|
4.37
|
Asset
Purchase Agreement by and Among EXFO Electro-Optical Engineering
Inc.,
Consultronics Limited., Andre Rekai, Consultronics Europe Limited,
Consultronics Development Kft. and Consultronics Inc. dated January
5,
2006.
|
8.1
|
Subsidiaries
of EXFO (list included in Item 4C of this annual report).
|
11.1
|
Code
of Ethics for senior financial officers, (incorporated by reference
to
Exhibit 11.1 of EXFO’s annual report on Form 20-F dated January 15, 2004,
File No. 000-30895).
|
11.2
|
Board
of Directors Corporate Governance Guidelines (incorporated by
reference to
Exhibit 11.2 of EXFO’s annual report on Form 20-F dated November 29, 2005,
File No. 000-30895).
|
11.3
|
Code
of Ethics for our Principal Executive Officer and Senior Financial
Officers (incorporated by reference to Exhibit 11.3 of EXFO’s annual
report on Form 20-F dated November 29, 2005, File No.
000-30895).
|
11.4
|
Ethics
and Business Conduct Policy (incorporated by reference to Exhibit
11.4 of
EXFO’s annual report on Form 20-F dated November 29, 2005, File No.
000-30895).
|
11.5
|
Statement
of Reporting Ethical Violations (Whistle Blower) (incorporated
by
reference to Exhibit 11.5 of EXFO’s annual report on Form 20-F dated
November 29, 2005, File No. 000-30895).
|
11.6
|
Audit
Committee Charter (incorporated by reference to Exhibit 11.6
of EXFO’s
annual report on Form 20-F dated November 29, 2005, File No.
000-30895).
|
11.7
|
Human
Resources Committee Charter (incorporated by reference to Exhibit
11.7 of
EXFO’s annual report on Form 20-F dated November 29, 2005, File No.
000-30895).
|
12.1
|
Certification
of the Chief Executive Officer Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
12.2
|
Certification
of the Chief Executive Officer Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
13.1
|
Certification
of the Chief Financial Officer Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
13.2
|
Certification
of the Chief Financial Officer Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Assets
|
|||||||
Current
assets
|
|||||||
Cash
|
$
|
6,853
|
$
|
7,119
|
|||
Short-term
investments (notes 8 and 18)
|
104,437
|
104,883
|
|||||
Accounts
receivable (notes 8 and 18)
|
|||||||
Trade
|
20,891
|
13,945
|
|||||
Other
(note 4)
|
2,792
|
2,007
|
|||||
Income
taxes and tax credits recoverable (note 8)
|
2,201
|
2,392
|
|||||
Inventories
(notes 5 and 8)
|
24,623
|
17,749
|
|||||
Prepaid
expenses
|
1,404
|
1,112
|
|||||
163,201
|
149,207
|
||||||
Income
taxes recoverable
|
476
|
459
|
|||||
Property,
plant and equipment
(notes
4, 6 and 8)
|
17,392
|
13,719
|
|||||
Long-lived
asset held for sale
(note
4)
|
−
|
1,600
|
|||||
Intangible
assets
(notes
7 and 8)
|
10,948
|
5,602
|
|||||
Goodwill
(note
7)
|
27,142
|
20,370
|
|||||
$
|
219,159
|
$
|
190,957
|
||||
Liabilities
|
|||||||
Current
liabilities
|
|||||||
Accounts
payable and accrued liabilities (note 9)
|
$
|
17,337
|
$
|
12,201
|
|||
Deferred
revenue
|
1,772
|
1,584
|
|||||
Current
portion of long-term debt
|
107
|
134
|
|||||
19,216
|
13,919
|
||||||
Deferred
revenue
|
2,632
|
1,568
|
|||||
Government
grants
(note
15)
|
723
|
1,872
|
|||||
Long-term
debt
(note
10)
|
354
|
198
|
|||||
22,925
|
17,557
|
||||||
Commitments
(note 11)
|
|||||||
Contingencies
(note 12)
|
|||||||
Shareholders’
Equity
|
|||||||
Share
capital (note 13)
|
148,921
|
521,875
|
|||||
Contributed
surplus
|
3,776
|
2,949
|
|||||
Deficit
(note 13)
|
−
|
(381,846
|
)
|
||||
Cumulative
translation adjustment
|
43,537
|
30,422
|
|||||
196,234
|
173,400
|
||||||
$
|
219,159
|
$
|
190,957
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
2004
|
||||||||
Sales
(note 19)
|
$
|
128,253
|
$
|
97,216
|
$
|
74,630
|
||||
Cost
of sales
(1,2)
|
57,275
|
44,059
|
34,556
|
|||||||
Gross
margin
|
70,978
|
53,157
|
40,074
|
|||||||
Operating
expenses
|
||||||||||
Selling
and administrative
(1)
|
40,298
|
31,782
|
25,890
|
|||||||
Net
research and development
(1)
(note
15)
|
15,404
|
12,190
|
12,390
|
|||||||
Amortization
of property, plant and equipment
|
3,523
|
4,256
|
4,935
|
|||||||
Amortization
of intangible assets
|
4,394
|
4,836
|
5,080
|
|||||||
Impairment
of long-lived assets (note 4)
|
604
|
−
|
620
|
|||||||
Government
grants (note 15)
|
(1,307
|
)
|
−
|
−
|
||||||
Restructuring
and other charges (note 4)
|
−
|
292
|
1,729
|
|||||||
Total
operating expenses
|
62,916
|
53,356
|
50,644
|
|||||||
Earnings
(loss) from operations
|
8,062
|
(199
|
)
|
(10,570
|
)
|
|||||
Interest
and other income
|
3,253
|
2,524
|
1,438
|
|||||||
Foreign
exchange loss
|
(595
|
)
|
(1,336
|
)
|
(278
|
)
|
||||
Earnings
(loss) before income taxes
(note
16)
|
10,720
|
989
|
(9,410
|
)
|
||||||
Income
taxes
(note
16)
|
2,585
|
2,623
|
(986
|
)
|
||||||
Net
earnings (loss) for the year
|
$
|
8,135
|
$
|
(1,634
|
)
|
$
|
(8,424
|
)
|
||
Basic
and diluted net earnings (loss) per share
|
$
|
0.12
|
$
|
(0.02
|
)
|
$
|
(0.13
|
)
|
||
Basic
weighted average number of shares outstanding
(000’s)
|
68,643
|
68,526
|
66,020
|
|||||||
Diluted
weighted average number of
shares
outstanding (000’s)
(note
17)
|
69,275
|
68,981
|
66,615
|
|||||||
(1)
Stock-based
compensation costs included in:
|
||||||||||
Cost
of sales
|
$
|
127
|
$
|
143
|
$
|
62
|
||||
Selling
and administrative
|
701
|
626
|
265
|
|||||||
Net
research and development
|
204
|
194
|
122
|
|||||||
$
|
1,032
|
$
|
963
|
$
|
449
|
|||||
(2)
The
cost of sales is exclusive of amortization, shown separately.
|
Deficit
|
||||||||||
Years
ended August 31,
|
||||||||||
200
6
|
200
5
|
200
4
|
||||||||
Balance
- Beginning of year
|
$
|
(381,846
|
)
|
$
|
(380,212
|
)
|
$
|
(371,788
|
)
|
|
Deduct
(add)
|
||||||||||
Net
earnings (loss) for the year
|
8,135
|
(1,634
|
)
|
(8,424
|
)
|
|||||
Elimination
of deficit by reduction of share capital (note 13)
|
373,711
|
−
|
−
|
|||||||
Balance
- End of year
|
$
|
−
|
$
|
(381,846
|
)
|
$
|
(380,212
|
)
|
Contributed
surplus
|
||||||||||
Years
ended August 31,
|
||||||||||
200
6
|
200
5
|
200
4
|
||||||||
Balance
- Beginning of year
|
$
|
2,949
|
$
|
1,986
|
$
|
1,519
|
||||
Add
(deduct)
|
||||||||||
Stock-based
compensation costs
|
1,027
|
963
|
449
|
|||||||
Reclassification
of stock-based compensation costs to share capital upon exercise
of stock
awards (note 13)
|
(200
|
)
|
−
|
−
|
||||||
Premium
on resale of share capital
|
−
|
−
|
18
|
|||||||
Balance
- End of year
|
$
|
3,776
|
$
|
2,949
|
$
|
1,986
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
2004
|
||||||||
Cash
flows from operating activities
|
||||||||||
Net
earnings (loss) for the year
|
$
|
8,135
|
$
|
(1,634
|
)
|
$
|
(8,424
|
)
|
||
Add
(deduct) items not affecting cash
|
||||||||||
Discount
on short-term investments
|
(229
|
)
|
(302
|
)
|
197
|
|||||
Stock-based
compensation costs
|
1,032
|
963
|
449
|
|||||||
Amortization
|
7,917
|
9,092
|
10,015
|
|||||||
Impairment
of long-lived assets
|
604
|
−
|
620
|
|||||||
Restructuring
and other charges
|
−
|
−
|
1,261
|
|||||||
Government
grants
|
(1,307
|
)
|
−
|
154
|
||||||
Deferred
revenue
|
786
|
977
|
1,404
|
|||||||
16,938
|
9,096
|
5,676
|
||||||||
Change
in non-cash operating items
|
||||||||||
Accounts
receivable
|
(2,637
|
)
|
(838
|
)
|
(2,677
|
)
|
||||
Income
taxes and tax credits
|
329
|
6,096
|
(2,464
|
)
|
||||||
Inventories
|
(2,287
|
)
|
(699
|
)
|
1,016
|
|||||
Prepaid
expenses
|
79
|
544
|
(449
|
)
|
||||||
Accounts
payable and accrued liabilities
|
(144
|
)
|
(164
|
)
|
(351
|
)
|
||||
12,278
|
14,035
|
751
|
||||||||
Cash
flows from investing activities
|
||||||||||
Additions
to short-term investments
|
(673,289
|
)
|
(585,665
|
)
|
(653,348
|
)
|
||||
Proceeds
from disposal and maturity of short-term investments
|
681,500
|
574,207
|
624,722
|
|||||||
Additions
to property, plant and equipment and intangible assets
|
(3,378
|
)
|
(1,501
|
)
|
(851
|
)
|
||||
Business
combinations, net of cash acquired
|
(18,054
|
)
|
−
|
(241
|
)
|
|||||
(13,221
|
)
|
(12,959
|
)
|
(29,718
|
)
|
|||||
Cash
flows from financing activities
|
||||||||||
Repayment
of long-term debt
|
(415
|
)
|
(121
|
)
|
(109
|
)
|
||||
Net
proceeds of offering (note 13)
|
−
|
−
|
29,164
|
|||||||
Exercise
of stock options
|
557
|
148
|
254
|
|||||||
Share
issue expenses
|
−
|
(6
|
)
|
(137
|
)
|
|||||
Redemption
of share capital
|
−
|
−
|
(5
|
)
|
||||||
Resale
of share capital
|
−
|
−
|
23
|
|||||||
142
|
21
|
29,190
|
||||||||
Effect
of foreign exchange rate changes on cash
|
535
|
863
|
(430
|
)
|
||||||
Change
in cash
|
(266
|
)
|
1,960
|
(207
|
)
|
|||||
Cash
- Beginning of year
|
7,119
|
5,159
|
5,366
|
|||||||
Cash
- End of year
|
$
|
6,853
|
$
|
7,119
|
$
|
5,159
|
||||
Supplementary
information
|
||||||||||
Interest
paid
|
$
|
65
|
$
|
30
|
$
|
408
|
||||
Income
taxes paid (recovered)
|
$
|
2,541
|
$
|
(669
|
)
|
$
|
120
|
Term
|
||
Land
improvements
|
5
years
|
|
Buildings
|
25
years
|
|
Equipment
|
2
to 10 years
|
|
Leasehold
improvements
|
The
lesser of useful life and remaining lease
term
|
Assets
acquired
|
||||
Current
assets
|
$
|
5,135
|
||
Property,
plant and equipment
|
3,115
|
|||
Core
technology
|
8,709
|
|||
Current
liabilities assumed
|
(2,826
|
)
|
||
Loans
assumed
|
(402
|
)
|
||
Net
identifiable assets acquired
|
13,731
|
|||
Goodwill
|
5,107
|
|||
Purchase
price, net of cash acquired
|
$
|
18,838
|
Balance
as at
August
31,
2005
|
Additions
|
Payments
|
Adjustments
|
Balance
as at
August
31,
2006
|
||||||||||||
Fiscal
2006 plan (note 3)
|
||||||||||||||||
Severance
expenses
|
$
|
−
|
$
|
660
|
$
|
(29
|
)
|
$
|
−
|
$
|
631
|
|||||
Fiscal
2003 plan
|
||||||||||||||||
Exited
leased facilities
|
150
|
−
|
(90
|
)
|
−
|
60
|
||||||||||
Total
for all plans (note 9)
|
$
|
150
|
$
|
660
|
$
|
(119
|
)
|
$
|
−
|
$
|
691
|
Balance
as at
August
31,
2004
|
Additions
|
Payments
|
Adjustments
|
Balance
as at
August
31,
2005
|
||||||||||||
Fiscal
2004 plan
|
||||||||||||||||
Severance
expenses
|
$
|
467
|
$
|
83
|
$
|
(550
|
)
|
$
|
−
|
$
|
−
|
|||||
Other
|
$
|
−
|
$
|
399
|
$
|
(399
|
)
|
$
|
−
|
$
|
−
|
|||||
467
|
482
|
(949
|
)
|
−
|
−
|
|||||||||||
Fiscal
2003 plan
|
||||||||||||||||
Severance
expenses
|
109
|
−
|
(77
|
)
|
(32
|
)
|
−
|
|||||||||
Exited
leased facilities
|
386
|
−
|
(229
|
)
|
(7
|
)
|
150
|
|||||||||
Other
|
197
|
−
|
(46
|
)
|
(151
|
)
|
−
|
|||||||||
692
|
−
|
(352
|
)
|
(190
|
)
|
150
|
||||||||||
Fiscal
2001 plan
|
||||||||||||||||
Exited
leased facilities
|
10
|
−
|
(10
|
)
|
−
|
−
|
||||||||||
Total
for all plans (note 9)
|
$
|
1,169
|
$
|
482
|
$
|
(1,311
|
)
|
$
|
(190
|
)
|
$
|
150
|
Balance
as at
August
31,
2003
|
Additions
|
Payments
|
Adjustments
|
Balance
as at
August
31,
2004
|
||||||||||||
Fiscal
2004 plan
|
||||||||||||||||
Severance
expenses
|
$
|
−
|
$
|
772
|
$
|
(305
|
)
|
$
|
−
|
$
|
467
|
|||||
Fiscal
2003 plan
|
||||||||||||||||
Severance
expenses
|
1,233
|
−
|
(870
|
)
|
(254
|
)
|
109
|
|||||||||
Exited
leased facilities
|
748
|
−
|
(362
|
)
|
−
|
386
|
||||||||||
Other
|
295
|
−
|
(90
|
)
|
(8
|
)
|
197
|
|||||||||
2,276
|
−
|
(1,322
|
)
|
(262
|
)
|
692
|
||||||||||
Fiscal
2002 plans
|
||||||||||||||||
Other
|
68
|
−
|
(68
|
)
|
−
|
−
|
||||||||||
Fiscal
2001 plan
|
||||||||||||||||
Exited
leased facilities
|
124
|
−
|
(72
|
)
|
(42
|
)
|
10
|
|||||||||
Total
for all plans
|
$
|
2,468
|
$
|
772
|
$
|
(1,767
|
)
|
$
|
(304
|
)
|
$
|
1,169
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Raw
materials
|
$
|
14,353
|
$
|
9,373
|
|||
Work
in progress
|
1,043
|
934
|
|||||
Finished
goods
|
9,227
|
7,442
|
|||||
$
|
24,623
|
$
|
17,749
|
As
at August 31,
|
|||||||||||||
2006
|
2005
|
||||||||||||
|
Cost
|
Accumulated
amortization
|
Cost
|
Accumulated
amortization
|
|||||||||
Land
and land improvements
|
$
|
4,249
|
$
|
1,082
|
$
|
3,179
|
$
|
815
|
|||||
Buildings
|
14,417
|
6,262
|
9,206
|
2,250
|
|||||||||
Equipment
|
33,562
|
28,263
|
33,216
|
29,553
|
|||||||||
Leasehold
improvements
|
2,788
|
2,017
|
2,395
|
1,659
|
|||||||||
55,016
|
$
|
37,624
|
47,996
|
$
|
34,277
|
||||||||
Less:
|
|||||||||||||
Accumulated
amortization
|
37,624
|
34,277
|
|||||||||||
$
|
17,392
|
$
|
13,719
|
As
at August 31,
|
|||||||||||||
2006
|
2005
|
||||||||||||
|
Cost
|
Accumulated
amortization
|
Cost
|
Accumulated
amortization
|
|||||||||
Core
technology
|
$
|
47,629
|
$
|
38,972
|
$
|
35,554
|
$
|
32,214
|
|||||
Software
|
6,781
|
4,490
|
6,607
|
4,345
|
|||||||||
54,410
|
$
|
43,462
|
42,161
|
$
|
36,559
|
||||||||
Less:
|
|||||||||||||
Accumulated
amortization
|
43,462
|
36,559
|
|||||||||||
$
|
10,948
|
$
|
5,602
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Balance
- Beginning of year
|
$
|
20,370
|
$
|
18,393
|
|||
Addition
from business combination (note 3)
|
5,107
|
−
|
|||||
Foreign
currency translation adjustment
|
1,665
|
1,977
|
|||||
Balance
- End of year (note 19)
|
$
|
27,142
|
$
|
20,370
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Trade
|
$
|
7,487
|
$
|
5,781
|
|||
Salaries
and social benefits
|
5,991
|
4,526
|
|||||
Warranty
|
1,006
|
725
|
|||||
Commissions
|
835
|
211
|
|||||
Restructuring
charges (note 4)
|
691
|
150
|
|||||
Business
combination (note 3)
|
185
|
−
|
|||||
Other
|
1,142
|
808
|
|||||
$
|
17,337
|
$
|
12,201
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Balance
- Beginning of year
|
$
|
725
|
$
|
390
|
|||
Provision
|
895
|
869
|
|||||
Settlements
|
(708
|
)
|
(583
|
)
|
|||
Addition
from business combination
|
31
|
−
|
|||||
Foreign
currency translation adjustment
|
63
|
49
|
|||||
Balance
- End of year
|
$
|
1,006
|
$
|
725
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Loans
collateralized by equipment, bearing interest at 4.9%, repayable
in
monthly installments of $10,600 including principal and interest,
maturing
in 2010
|
$
|
461
|
$
|
−
|
|||
Loans
collateralized by equipment, bearing interest at 9.6%, fully repaid
in
fiscal 2006
|
−
|
332
|
|||||
461
|
332
|
||||||
Less:
Current portion
|
107
|
134
|
|||||
$
|
354
|
$
|
198
|
Multiple
voting shares
|
Subordinate
voting shares
|
|||||||||||||||
Number
|
Amount
|
Number
|
Amount
|
Total
amount
|
||||||||||||
Balance
as at August 31, 2003
|
37,900,000
|
$
|
1
|
25,139,908
|
$
|
492,451
|
$
|
492,452
|
||||||||
Public
offering
(1)
|
−
|
−
|
5,200,000
|
29,164
|
29,164
|
|||||||||||
Exercise
of stock options (note 14)
|
−
|
−
|
111,071
|
254
|
254
|
|||||||||||
Exercise
of restricted stock awards (note 14)
|
−
|
−
|
89,504
|
−
|
−
|
|||||||||||
Redemption
|
−
|
−
|
(5,340
|
)
|
(5
|
)
|
(5
|
)
|
||||||||
Resale
|
−
|
−
|
5,340
|
5
|
5
|
|||||||||||
Share
issue expenses
|
−
|
−
|
−
|
(137
|
)
|
(137
|
)
|
|||||||||
Balance
as at August 31, 2004
|
37,900,000
|
1
|
30,540,483
|
521,732
|
521,733
|
|||||||||||
Exercise
of stock options (note 14)
|
−
|
−
|
71,699
|
148
|
148
|
|||||||||||
Exercise
of restricted stock awards (note 14)
|
−
|
−
|
53,592
|
−
|
−
|
|||||||||||
Share
issue expenses
|
−
|
−
|
−
|
(6
|
)
|
(6
|
)
|
|||||||||
Balance
as at August 31, 2005
|
37,900,000
|
1
|
30,665,774
|
521,874
|
521,875
|
|||||||||||
Exercise
of stock options (note 14)
|
−
|
−
|
182,425
|
557
|
557
|
|||||||||||
Exercise
of restricted share units (note 14)
|
−
|
−
|
4,770
|
−
|
−
|
|||||||||||
Conversion
of multiple voting shares into subordinate voting shares
|
(757,000
|
)
|
−
|
757,000
|
−
|
−
|
||||||||||
Reclassification
of stock-based compensation cost to share capital upon exercise
of stock
awards
|
−
|
−
|
−
|
200
|
200
|
|||||||||||
Elimination
of deficit by reduction of share capital
(2)
|
−
|
−
|
−
|
(373,711
|
)
|
(373,711
|
)
|
|||||||||
Balance
as at August 31, 2006
|
37,143,000
|
$
|
1
|
31,609,969
|
$
|
148,920
|
$
|
148,921
|
(1) |
On
February 12, 2004, pursuant to a Canadian public offering, the
company
issued 5,200,000 subordinate voting shares for net proceeds of
$29,164,000
(CA$38,438,400), after deduction of underwriting commission of
$1,215,000
(CA$1,601,000).
|
(2) |
Upon
the approval of the Board of Directors dated August 31, 2006, the
company
eliminated its deficit against its share
capital.
|
Years
ended August 31,
|
|||||||||||||||||||
2006
|
2005
|
2004
|
|||||||||||||||||
Number
|
Weighted
average exercise price
|
Number
|
Weighted
average exercise price
|
Number
|
Weighted
average exercise price
|
||||||||||||||
(CA$)
|
(CA$)
|
(CA$)
|
|||||||||||||||||
Outstanding
- Beginning of year
|
2,763,759
|
$
|
19
|
2,934,518
|
$
|
21
|
3,176,613
|
$
|
23
|
||||||||||
Granted
|
31,992
|
6
|
246,233
|
6
|
536,500
|
5
|
|||||||||||||
Exercised
|
(182,425
|
)
|
(4
|
)
|
(71,699
|
)
|
(3
|
)
|
(111,071
|
)
|
(3
|
)
|
|||||||
Forfeited
|
(173,951
|
)
|
(18
|
)
|
(345,293
|
)
|
(27
|
)
|
(667,524
|
)
|
(23
|
)
|
|||||||
Outstanding
- End of year
|
2,439,375
|
$
|
20
|
2,763,759
|
$
|
19
|
2,934,518
|
$
|
21
|
||||||||||
Exercisable
- End of year
|
1,852,870
|
$
|
25
|
1,650,404
|
$
|
28
|
1,331,707
|
$
|
32
|
Years
ended August 31,
|
||||||
2006
|
2005
|
2004
|
||||
Risk-free
interest rate
|
3.9%
|
3.6%
|
2.7%
|
|||
Expected
volatility (based on historical volatility)
|
87%
|
95%
|
100%
|
|||
Dividend
yield
|
Nil
|
Nil
|
Nil
|
|||
Expected
life
|
66
months
|
66
months
|
49
months
|
Stock
options outstanding
|
Stock
options exercisable
|
|||||||||||||||||||||
Exercise
price
|
Number
|
Weighted
average
exercise
price
|
Aggregate
intrinsic value
|
|
Weighted
average
remaining
contractual
life
|
Number
|
Weighted
average
exercise
price
|
Aggregate
intrinsic value
|
|
|||||||||||||
(CA$)
|
(CA$
|
)
|
(CA$
|
) |
(CA$
|
)
|
(CA$ | ) | ||||||||||||||
$2.50
to $3.36
|
419,655
|
$
|
2.50
|
$
|
1,402
|
6.1
years
|
273,313
|
$
|
2.50
|
$
|
913
|
|||||||||||
$3.96
to $5.84
|
547,687
|
5.07
|
422
|
7.6
years
|
206,464
|
4.92
|
190
|
|||||||||||||||
$6.22
to $9.02
|
193,200
|
6.52
|
−
|
7.4
years
|
94,260
|
6.82
|
−
|
|||||||||||||||
$14.27
to $20.00
|
476,396
|
15.78
|
−
|
5.2
years
|
476,396
|
15.78
|
−
|
|||||||||||||||
$29.70
to $43.00
|
564,436
|
36.27
|
−
|
4.2
years
|
564,436
|
36.27
|
−
|
|||||||||||||||
$51.25
to $68.17
|
199,771
|
65.76
|
−
|
4.0
years
|
199,771
|
65.76
|
−
|
|||||||||||||||
$83.66
|
38,230
|
83.66
|
−
|
4.0
years
|
38,230
|
83.66
|
−
|
|||||||||||||||
2,439,375
|
$
|
20.26
|
$
|
1,824
|
5.7
years
|
1,852,870
|
$
|
25.19
|
$
|
1,103
|
Years
ended August 31,
|
|||||||
2006
|
2005
|
||||||
Outstanding
- Beginning of year
|
176,185
|
−
|
|||||
Granted
|
173,803
|
176,185
|
|||||
Exercised
|
(4,770
|
)
|
−
|
||||
Forfeited
|
(17,341
|
)
|
−
|
||||
Outstanding
- End of year
|
327,877
|
176,185
|
Years
ended August 31,
|
|||||||
2006
|
2005
|
||||||
Outstanding
- Beginning of year
|
23,734
|
−
|
|||||
Granted
|
19,556
|
23,734
|
|||||
Outstanding
- End of year
|
43,290
|
23,734
|
Years
ended August 31,
|
|||||||||||||||||||
2006
|
2005
|
2004
|
|||||||||||||||||
|
Number |
Weighted
average
exercise
price
|
Number
|
Weighted
average
exercise
price
|
Number
|
Weighted
average
exercise
price
|
|||||||||||||
Outstanding
- Beginning of year
|
19,000
|
$
|
12
|
13,000
|
$
|
16
|
9,000
|
$
|
24
|
||||||||||
Granted
|
5,500
|
6
|
6,000
|
4
|
6,000
|
5
|
|||||||||||||
Forfeited
|
−
|
−
|
−
|
−
|
(2,000
|
)
|
(19
|
)
|
|||||||||||
Outstanding
- End of year
|
24,500
|
$
|
11
|
19,000
|
$
|
12
|
13,000
|
$
|
16
|
||||||||||
Exercisable
- End of year
|
11,000
|
$
|
18
|
7,500
|
$
|
24
|
4,250
|
$
|
30
|
Stock
appreciation
rights
outstanding
|
Stock
appreciation rights exercisable
|
|||||||||
Exercise
price
|
Number
|
Weighted
average remaining contractual life
|
Number
|
|||||||
$2.21
|
2,000
|
6.6
years
|
1,500
|
|||||||
$4.51
to $6.50
|
17,500
|
8.4
years
|
4,500
|
|||||||
$22.25
|
2,500
|
4.4
years
|
2,500
|
|||||||
$45.94
|
2,500
|
4.0
years
|
2,500
|
|||||||
24,500
|
7.4
years
|
11,000
|
Years
ended August 31,
|
|||||||
2005
|
2004
|
||||||
Outstanding
- Beginning of year
|
53,592
|
143,096
|
|||||
Exercised
|
(53,592
|
)
|
(89,504
|
)
|
|||
Outstanding
- End of year
|
−
|
53,592
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
2004
|
||||||||
Gross
research and development expenses
|
$
|
19,488
|
$
|
15,878
|
$
|
15,668
|
||||
Research
and development tax credits and grants
|
(4,084
|
)
|
(3,688
|
)
|
(3,278
|
)
|
||||
$
|
15,404
|
$
|
12,190
|
$
|
12,390
|
· |
Deferred
profit-sharing plan
|
· |
401K
plan
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
20
04
|
||||||||
Income
tax provision at combined Canadian federal and provincial statutory
tax
rate (32% in 2006, 31% in 2005 and 32% in 2004)
|
$
|
3,430
|
$
|
307
|
$
|
(3,011
|
)
|
|||
Increase
(decrease) due to:
|
||||||||||
Foreign
income taxed at different rates
|
(85
|
)
|
(580
|
)
|
(767
|
)
|
||||
Non-taxable
income
|
(207
|
)
|
(827
|
)
|
(128
|
)
|
||||
Non-deductible
expenses
|
527
|
784
|
1,205
|
|||||||
Tax
deductions
|
−
|
(81
|
)
|
(169
|
)
|
|||||
Change
in enacted rates
|
497
|
−
|
274
|
|||||||
Effect
of consolidation of subsidiaries
|
61
|
(209
|
)
|
(1,384
|
)
|
|||||
Previous
year tax recovery
|
−
|
−
|
(1,406
|
)
|
||||||
Other
|
239
|
(146
|
)
|
446
|
||||||
Change
in valuation allowance
|
(1,877
|
)
|
3,375
|
3,954
|
||||||
$
|
2,585
|
$
|
2,623
|
$
|
(986
|
)
|
||||
The
income tax provision consists of the following:
|
||||||||||
Current
|
||||||||||
Canadian
|
$
|
2,573
|
$
|
2,513
|
$
|
(577
|
)
|
|||
Other
|
12
|
110
|
(409
|
)
|
||||||
2,585
|
2,623
|
(986
|
)
|
|||||||
Future
|
||||||||||
Canadian
|
2,687
|
(1,445
|
)
|
(1,104
|
)
|
|||||
United
States
|
(601
|
)
|
(1,723
|
)
|
(2,448
|
)
|
||||
Other
|
(209
|
)
|
(207
|
)
|
(402
|
)
|
||||
1,877
|
(3,375
|
)
|
(3,954
|
)
|
||||||
Valuation
allowance
|
||||||||||
Canadian
|
(2,687
|
)
|
1,445
|
1,104
|
||||||
United
States
|
601
|
1,723
|
2,448
|
|||||||
Other
|
209
|
207
|
402
|
|||||||
(1,877
|
)
|
3,375
|
3,954
|
|||||||
$
|
2,585
|
$
|
2,623
|
$
|
(986
|
)
|
||||
Details
of the company’s income taxes:
|
||||||||||
Earnings
(loss) before income taxes
|
||||||||||
Canadian
|
$
|
13,202
|
$
|
3,092
|
$
|
(7,740
|
)
|
|||
United
States
|
(2,103
|
)
|
(953
|
)
|
(5,879
|
)
|
||||
Other
|
(379
|
)
|
(1,150
|
)
|
4,209
|
|||||
$
|
10,720
|
$
|
989
|
$
|
(9,410
|
)
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Future
income tax assets
|
|||||||
Long-lived
assets
|
$
|
4,453
|
$
|
4,902
|
|||
Provisions
and accruals
|
7,315
|
7,406
|
|||||
Government
grants
|
−
|
209
|
|||||
Deferred
revenue
|
486
|
318
|
|||||
Share
issue expenses
|
531
|
590
|
|||||
Research
and development expenses
|
8,527
|
7,292
|
|||||
Losses
carried forward
|
18,118
|
18,424
|
|||||
39,430
|
39,141
|
||||||
Valuation
allowance
|
(38,543
|
)
|
(38,406
|
)
|
|||
887
|
735
|
||||||
Future
income tax liabilities
|
|||||||
Research
and development tax credits
|
(887
|
)
|
(735
|
)
|
|||
Future
income tax assets, net
|
$
|
−
|
$
|
−
|
Canada
|
United
States
|
|||||||||
Year
of expiry
|
Federal
|
Provinces
|
and
Other
|
|||||||
2008
|
$
|
1,252
|
$
|
92
|
$
|
1,857
|
||||
2009
|
5,186
|
394
|
599
|
|||||||
2010
|
4,677
|
327
|
266
|
|||||||
2011
|
168
|
86
|
-
|
|||||||
2013
|
-
|
-
|
876
|
|||||||
2015
|
1,666
|
1,670
|
-
|
|||||||
2022
|
-
|
-
|
9,406
|
|||||||
2023
|
-
|
-
|
11,621
|
|||||||
2024
|
-
|
-
|
6,700
|
|||||||
2025
|
-
|
-
|
6,690
|
|||||||
2026
|
1,694
|
1,696
|
2,737
|
|||||||
Indefinite
|
1,702
|
1,775
|
1,996
|
|||||||
$
|
16,345
|
$
|
6,040
|
$
|
42,748
|
Years
ended August 31,
|
||||||||||
200
6
|
200
5
|
2004
|
||||||||
Basic
weighted average number of shares
outstanding
(000’s)
|
68,643
|
68,526
|
66,020
|
|||||||
Plus
dilutive effect of:
|
||||||||||
Stock
options (000’s)
|
502
|
422
|
502
|
|||||||
Deferred
share units (000’s)
|
31
|
8
|
−
|
|||||||
Restricted
share units (000’s)
|
99
|
8
|
−
|
|||||||
Restricted
stock awards (000’s)
|
−
|
17
|
93
|
|||||||
Diluted
weighted average number of shares outstanding (000’s)
|
69,275
|
68,981
|
66,615
|
|||||||
Stock
awards excluded from the calculation of the diluted weighted average
number of shares outstanding because their exercise price was greater
than
the average market price of the common shares (000’s)
|
1,628
|
1,962
|
2,128
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Commercial
paper denominated in Canadian dollars, bearing interest at annual
rates of
3.92% to 4.31% in 2006 and 2.44% to 2.75% in 2005, maturing on
different
dates between September 2006 and January 2007 in fiscal 2006, and
September 2005 and January 2006 in fiscal 2005
|
$
|
104,437
|
$
|
104,883
|
Cash
|
Non-interest
bearing
|
|
Short-term
investments
|
As
described above
|
|
Accounts
receivable
|
Non-interest
bearing
|
|
Accounts
payable and accrued liabilities
|
Non-interest
bearing
|
|
Long-term
debt
|
As
described in note 10
|
Contractual
amounts
|
Weighted
average contractual forward rates
|
||||||
As
at August 31, 2005
|
|||||||
September
2005 to August 2006
|
$
|
26,000
|
1.2630
|
||||
September
2006 to November 2007
|
7,600
|
1.2500
|
|||||
As
at August 31, 2006
|
|||||||
September
2006 to August 2007
|
$
|
37,000
|
1.1676
|
||||
September
2007 to June 2009
|
26,800
|
1.1261
|
Year
ended August 31, 2006
|
||||||||||
Telecom
Division
|
Life
Sciences and Industrial Division
|
Total
|
||||||||
Sales
|
$
|
107,376
|
$
|
20,877
|
$
|
128,253
|
||||
Earnings
from operations
|
$
|
6,679
|
$
|
1,383
|
$
|
8,062
|
||||
Unallocated
items:
|
||||||||||
Interest
and other income
|
3,253
|
|||||||||
Foreign
exchange loss
|
(595
|
)
|
||||||||
Earnings
before income taxes
|
10,720
|
|||||||||
Income
taxes
|
2,585
|
|||||||||
Net
earnings for the year
|
$
|
8,135
|
||||||||
Government
grants (note 15)
|
$
|
(1,307
|
)
|
$
|
−
|
$
|
(1,307
|
)
|
||
Amortization
of capital assets
|
$
|
6,689
|
$
|
1,228
|
$
|
7,917
|
||||
Stock-based
compensation costs
|
$
|
962
|
$
|
70
|
$
|
1,032
|
||||
Impairment
of long-lived assets (note 4)
|
$
|
−
|
$
|
604
|
$
|
604
|
||||
Capital
expenditures
|
$
|
3,049
|
$
|
329
|
$
|
3,378
|
Year
ended August 31, 2005
|
||||||||||
Telecom
Division
|
Life
Sciences and Industrial Division
|
Total
|
||||||||
Sales
|
$
|
80,120
|
$
|
17,096
|
$
|
97,216
|
||||
Earnings
(loss) from operations
|
$
|
763
|
$
|
(962
|
)
|
$
|
(199
|
)
|
||
Unallocated
items:
|
||||||||||
Interest
and other income
|
2,524
|
|||||||||
Foreign
exchange loss
|
(1,336
|
)
|
||||||||
Earnings
before income taxes
|
989
|
|||||||||
Income
taxes
|
2,623
|
|||||||||
Net
loss for the year
|
$
|
(1,634
|
)
|
|||||||
Amortization
of capital assets
|
$
|
6,504
|
$
|
2,588
|
$
|
9,092
|
||||
Stock-based
compensation costs
|
$
|
897
|
$
|
66
|
$
|
963
|
||||
Capital
expenditures
|
$
|
1,408
|
$
|
93
|
$
|
1,501
|
Year
ended August 31, 2004
|
||||||||||
Telecom
Division
|
Life
Sciences and Industrial Division
|
Total
|
||||||||
Sales
|
$
|
58,882
|
$
|
15,748
|
$
|
74,630
|
||||
Loss
from operations
|
$
|
(5,557
|
)
|
$
|
(5,013
|
)
|
$
|
(10,570
|
)
|
|
Unallocated
items:
|
||||||||||
Interest
and other income
|
1,438
|
|||||||||
Foreign
exchange loss
|
(278
|
)
|
||||||||
Loss
before income taxes
|
(9,410
|
)
|
||||||||
Income
taxes
|
(986
|
)
|
||||||||
Net
loss for the year
|
$
|
(8,424
|
)
|
|||||||
Amortization
of capital assets
|
$
|
6,643
|
$
|
3,372
|
$
|
10,015
|
||||
Stock-based
compensation costs
|
$
|
417
|
$
|
32
|
$
|
449
|
||||
Impairment
of long-lived assets (note 4)
|
$
|
620
|
$
|
−
|
$
|
620
|
||||
Restructuring
and other charges (note 4)
|
$
|
−
|
$
|
1,261
|
$
|
1,261
|
||||
Capital
expenditures
|
$
|
607
|
$
|
244
|
$
|
851
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Telecom
Division
|
$
|
93,853
|
$
|
64,655
|
|||
Life
Sciences and Industrial Division
|
11,339
|
11,449
|
|||||
Unallocated
assets
|
113,967
|
114,853
|
|||||
$
|
219,159
|
$
|
190,957
|
As
at August 31,
|
|||||||
2006
|
2005
|
||||||
Telecom
Division
|
$
|
22,545
|
$
|
16,092
|
|||
Life
Sciences and Industrial Division
|
4,597
|
4,278
|
|||||
$
|
27,142
|
$
|
20,370
|
Years
ended August 31,
|
||||||||||
2006
|
2005
|
2004
|
||||||||
United
States
|
$
|
59,457
|
$
|
56,282
|
$
|
40,019
|
||||
Canada
|
8,767
|
6,830
|
5,818
|
|||||||
Latin
America
|
8,380
|
3,127
|
3,547
|
|||||||
76,604
|
66,239
|
49,384
|
||||||||
Europe,
Middle East and Africa
|
32,379
|
19,396
|
13,706
|
|||||||
Asia-Pacific
|
19,270
|
11,581
|
11,540
|
|||||||
$
|
128,253
|
$
|
97,216
|
$
|
74,630
|
Years
ended August 31,
|
|||||||||||||
2006
|
2005
|
2004
|
|||||||||||
Net
earnings (loss) for the year in accordance with Canadian
GAAP
|
$
|
8,135
|
$
|
(1,634
|
)
|
$
|
(8,424
|
)
|
|||||
Stock-based
compensation costs
|
a
|
)
|
−
|
−
|
(867
|
)
|
|||||||
Unrealized
losses on forward exchange contracts
|
b
|
)
|
−
|
(1,286
|
)
|
(280
|
)
|
||||||
Net
earnings (loss) for the year in accordance with
U.S.
GAAP
|
8,135
|
(2,920
|
)
|
(9,571
|
)
|
||||||||
Other
comprehensive income (loss)
|
|||||||||||||
Foreign
currency translation adjustment
|
12,322
|
15,669
|
5,969
|
||||||||||
Unrealized
gains on forward exchange contracts
|
b
|
)
|
5,394
|
2,313
|
689
|
||||||||
Reclassification
of realized gains on forward exchange contracts in net earnings
(loss)
|
b
|
)
|
(2,880
|
)
|
(65
|
)
|
−
|
||||||
Comprehensive
income (loss)
|
$
|
22,971
|
$
|
14,997
|
$
|
(2,913
|
)
|
||||||
Basic
and diluted net earnings (loss) per share in accordance with
U.S.
GAAP
|
$
|
0.12
|
$
|
(0.04
|
)
|
$
|
(0.14
|
)
|
|||||
Basic
weighted average number of shares outstanding (000’s)
|
68,643
|
68,526
|
66,020
|
||||||||||
Diluted
weighted average number of shares outstanding (000’s)
|
69,275
|
68,981
|
66,615
|
As
at August 31,
|
|||||||||||||
2006
|
2005
|
2004
|
|||||||||||
Shareholders’
equity in accordance with Canadian GAAP
|
$
|
196,234
|
$
|
173,400
|
$
|
157,327
|
|||||||
Forward
exchange contracts
|
b
|
)
|
5,451
|
2,937
|
1,975
|
||||||||
Goodwill
|
(11,908
|
)
|
(11,042
|
)
|
(10,008
|
)
|
|||||||
Shareholders’
equity in accordance with U.S. GAAP
|
$
|
189,777
|
$
|
165,295
|
$
|
149,294
|
Share
capital
|
Contributed
surplus
|
Deficit
|
Deferred
stock-based compensation costs
|
Other
capital
|
Accumulated
other comprehensive income
|
Shareholders’
equity
|
||||||||||||||||
Balance
as at August 31, 2003
|
$
|
565,291
|
$
|
1,519
|
$
|
(454,588
|
)
|
$
|
(1,278
|
)
|
$
|
5,429
|
$
|
5,219
|
$
|
121,592
|
||||||
Net
loss for the year
|
−
|
−
|
(9,571
|
)
|
−
|
−
|
−
|
(9,571
|
)
|
|||||||||||||
Stock-based
compensation costs
|
1,737
|
−
|
−
|
339
|
(760
|
)
|
−
|
1,316
|
||||||||||||||
Foreign
currency translation adjustment
|
−
|
−
|
−
|
−
|
−
|
5,969
|
5,969
|
|||||||||||||||
Unrealized
gains on forward exchange contracts
|
−
|
−
|
−
|
−
|
−
|
689
|
689
|
|||||||||||||||
Public
offering (note 13)
|
29,164
|
−
|
−
|
−
|
−
|
−
|
29,164
|
|||||||||||||||
Exercise
of stock options (note 13)
|
254
|
−
|
−
|
−
|
−
|
−
|
254
|
|||||||||||||||
Share
issue expenses (note 13)
|
(137
|
)
|
−
|
−
|
−
|
−
|
−
|
(137
|
)
|
|||||||||||||
Premium
on resale of share capital
|
−
|
18
|
−
|
−
|
−
|
−
|
18
|
|||||||||||||||
Balance
as at August 31, 2004
|
596,309
|
1,537
|
(464,159
|
)
|
(939
|
)
|
4,669
|
11,877
|
149,294
|
|||||||||||||
Net
loss for the year
|
−
|
−
|
(2,920
|
)
|
−
|
−
|
−
|
(2,920
|
)
|
|||||||||||||
Stock-based
compensation costs
|
1,213
|
−
|
−
|
(776
|
)
|
425
|
−
|
862
|
||||||||||||||
Foreign
currency translation adjustment
|
−
|
−
|
−
|
−
|
−
|
15,669
|
15,669
|
|||||||||||||||
Unrealized
gains on forward exchange contracts
|
−
|
−
|
−
|
−
|
−
|
2,248
|
2,248
|
|||||||||||||||
Exercise
of stock options (note 13)
|
148
|
−
|
−
|
−
|
−
|
−
|
148
|
|||||||||||||||
Share
issue expenses (note 13)
|
(6
|
)
|
−
|
−
|
−
|
−
|
−
|
(6
|
)
|
|||||||||||||
Balance
as at August 31, 2005
|
597,664
|
1,537
|
(467,079
|
)
|
(1,715
|
)
|
5,094
|
29,794
|
165,295
|
|||||||||||||
Net
earnings for the year
|
−
|
−
|
8,135
|
−
|
−
|
−
|
8,135
|
|||||||||||||||
Stock-based
compensation costs
|
−
|
−
|
−
|
344
|
610
|
−
|
954
|
|||||||||||||||
Foreign
currency translation adjustment
|
−
|
−
|
−
|
−
|
−
|
12,322
|
12,322
|
|||||||||||||||
Unrealized
gains on forward exchange contracts
|
−
|
−
|
−
|
−
|
−
|
2,514
|
2,514
|
|||||||||||||||
Exercise
of stock options (note 13)
|
557
|
−
|
−
|
−
|
−
|
−
|
557
|
|||||||||||||||
Reclassification
of stock-based compensation costs upon exercise of stock awards
(note
13)
|
200
|
−
|
−
|
−
|
(200
|
)
|
−
|
−
|
||||||||||||||
Balance
as at August 31, 2006
|
$
|
598,421
|
$
|
1,537
|
$
|
(458,944
|
)
|
$
|
(1,371
|
)
|
$
|
5,504
|
$
|
44,630
|
$
|
189,777
|
As
at August 31,
|
|||||||||||||
2006
|
2005
|
2004
|
|||||||||||
Foreign
currency translation adjustment
|
|||||||||||||
Current
year
|
$
|
12,322
|
$
|
15,669
|
$
|
5,969
|
|||||||
Cumulative
effect of prior years
|
26,857
|
11,188
|
5,219
|
||||||||||
39,179
|
26,857
|
11,188
|
|||||||||||
Unrealized
gains on forward exchange contracts
|
b
|
)
|
|||||||||||
Current
year
|
2,514
|
2,248
|
689
|
||||||||||
Cumulative
effect of prior years
|
2,937
|
689
|
−
|
||||||||||
5,451
|
2,937
|
689
|
|||||||||||
$
|
44,630
|
$
|
29,794
|
$
|
11,877
|
d) |
Elimination of deficit by reduction of share
capital
|
e) |
New accounting standards and
pronouncements
|
ART
ICLE
IV
|
|
(a) |
"Act"
means the
Business
Corporations Act
(Ontario) as in effect on the date
hereof;
|
(b) |
"Affiliate"
has the meaning given to that term in the
Act;
|
(c) |
"Agreement"
means this Asset Purchase Agreement and all amendments made in writing
by
the parties hereto, "herein" and similar expressions mean and refer
to
this Agreement and not to any particular Article, section, subsection
or
Schedule;
|
(d) |
"Associate"
has the meaning given to that term in the
Act;
|
(e) |
"Assumed
Liabilities" has the meaning set out in section
4.1
;
|
(f) |
"Audited
Financial Statements" means the audited consolidated financial statements
of the Vendor as at and for the financial year ended May 31, 2005,
including the notes thereto and the report of the Vendor's auditors
thereon, copies of which are annexed hereto as
Schedule
1
;
|
(g) |
"Business
Day" means any day, other than a Saturday or a Sunday, on which the
main
branch of HSBC Bank Canada in Toronto, Ontario is open for
business;
|
(h) |
"Claim"
has the meaning set out in section
11.3
;
|
(i) |
"Closing"
has the meaning set out in section
10.2
;
|
(j) |
"Closing
Audited Financial Statements" has the meaning set out in subsection
3.3(a)
;
|
(k) |
"Closing
Date" means January 24
th
,
2006, or such other date as the Vendor and the Purchaser may mutually
determine;
|
(l) |
"Closing
Statements" has the meaning set out in subsection
3.3(a)
;
|
(m) |
"Contract"
means any agreement, indenture, contract, lease, including, without
limitation, the Leases, deed of trust, licence, option, instrument
or
other commitment, whether written or
oral;
|
(n) |
"Employee
Plans" has the meaning set out in section
5.29
;
|
(o) |
"Employees"
means those salaried and hourly paid employees of the Vendor and
the
Subsidiaries who are employed in the Purchased Business immediately
prior
to the Time of Closing;
|
(p) |
"Encumbrance"
means any encumbrance, lien, charge, hypothec, pledge, mortgage,
title
retention agreement, security interest of any nature, adverse claim,
exception, reservation, easement, right of occupation, any matter
capable
of registration against title, option, right of pre-emption, privilege
or
any Contract to create any of the
foregoing;
|
(q) |
"ETA"
means Part IX of the
Excise
Tax Act
(Canada), as amended from time to
time;
|
(r) |
"Excluded
Assets" has the meaning set out in section
2.2
;
|
(s) |
"Excluded
Liabilities" has the meaning set out in section
4.1
;
|
(t) |
"Existing
Mortgage" means the Charge/Mortgage registered in the Land Registry
Office
for the Land Titles Division of York Region (No. 65), as instrument
No.YR355014;
|
(u) |
"Financial
Statements" means the Audited Financial Statements and the Interim
Financial Statements;
|
(v) |
“Former
Employees” has the meaning set out in subsection
8.9(b)
|
(w) |
"Governmental
Authority" means any governmental or regulatory authority, body,
agency or
department, whether foreign or domestic federal, provincial or
municipal;
|
(x) |
"GST"
means all taxes payable under the ETA or under any provincial legislation
similar to the ETA, and any reference to a specific provision of
the ETA
or any such provincial legislation shall refer to any successor provision
thereto of like or similar effect;
|
(y) |
"Indemnified
Party" has the meaning set out in section
11.3
;
|
(z) |
"Indemnifying
Party" has the meaning set out in section
11.3
;
|
(aa) |
"Intellectual
Property" has the meaning set out in subsection
2.1(j)
;
|
(bb) |
"Independent
Auditor" has the meaning given to such term in subsection
3.3(b)
;
|
(cc) |
"Interim
Financial Statements" means the unaudited consolidated financial
statements of the Vendor and the unaudited non-consolidated financial
statements of the Vendor, Consultronics Europe and Consultronics
Hungary
as at and for the period from June 1
st
,
2005 to November 30
th
,
2005, copies of which are annexed hereto as
Schedule
2
;
in the event the Closing is delayed, such financial statements will
be for
the period from June 1
st
,
2005 to the last day of the month preceding the
Closing;
|
(dd) |
"Laws"
means all applicable laws, by-laws, rules, regulations, orders,
ordinances, protocols, codes, guidelines, policies, notices, directions
and judgments or other requirements of any Governmental
Authority;
|
(ee) |
"Leased
Property" has the meaning set out in section
5.7
;
|
(ff) |
"Leases"
has the meaning set out in section
5.10
;
|
(gg) |
"Licences"
has the meaning set out in section
5.16
;
|
(hh) |
"Losses"
means, in respect of any matter, all claims, demands, proceedings,
losses,
damages, liabilities, deficiencies, costs and expenses (including,
without
limitation, all legal and other professional fees and disbursements,
interest, penalties and amounts paid in settlement) arising directly
or
indirectly as a consequence of such
matter;
|
(ii) |
"Objection
Notice" has the meaning given to such term in subsection
3.3(b)
;
|
(jj) |
"Permitted
Encumbrances" means all the Encumbrances described and disclosed
in
Schedule
12
;
|
(kk) |
"Purchase
Price" has the meaning set out in section
3.1
;
|
(ll) |
"Purchased
Assets" has the meaning set out in section
2.1
;
|
(mm) |
"Purchased
Business" means the business carried on by the Vendor and each of
the
Subsidiaries consisting primarily of the design, manufacture and
marketing
of telecommunications and data communications test equipment, and
turnkey
network monitoring solutions for telecommunications access
testing;
|
(nn) |
"Real
Property" has the meaning set out in section
5.7
;
|
(oo) |
"Remaining
Employees" has the meaning set out in subsection
8.9(a)
;
|
(pp) |
"Replacement
Plans" has the meaning set out in section
8.10
;
|
(qq) |
"Smart
Grant" means the grant granted by the UK Secretary of State for Trade
and
Industry to Consultronics Europe dated August 15
th
,
2003 and accepted on August 20
th
,
2003.
|
(rr) |
"Subsidiaries"
means Consultronics Europe and Consultronics
Hungary;
|
(ss) |
"Tax"
or "Taxes" means any federal, provincial, state, local, foreign or
other
income, gross receipts, profits, franchise, transfer, sales, use,
customs,
payroll, occupation, health, property, excise, GST or other taxes,
fees,
duties, assessments, withholdings or governmental charges of any
nature,
including employment insurance (including interest, penalties and
additions to such taxes or
charges);
|
(tt) |
"Tax
Act" means the
Income
Tax Act
(Canada), as amended from time to
time;
|
(uu) |
"Time
of Closing" means 10:00 a.m. Toronto time on the Closing Date, or
such
other time on the Closing Date as the Vendor and the Purchaser may
mutually determine;
|
(vv) |
"Transaction
Documents" has the meaning set out in section
1.6
;
|
(ww) |
"Transferred
Employees" has the meaning set out in section
8.10
;
|
(xx) |
"Unaudited
Financial Statements" means
the unaudited non-consolidated financial statements of the Vendor,
Consultronic Europe and Consultronics Hungary as at and for the financial
year ended May 31, 2005, including the notes thereto
,
a
copy of which is annexed hereto as
Schedule
27
;
and
|
(yy) |
"Working
Capital" means the aggregate of consolidated accounts receivable,
consolidated prepaids, consolidated inventory, consolidated deferred
costs, consolidated current liabilities (including any income tax
payable
by the Subsidiaries but excluding any income tax liabilities of the
Vendor), consolidated deferred revenue and all cash and cash equivalents
as per the Subsidiaries’ audited financial statements as of the Closing
Date.
|
Schedule
1
|
|
Audited
Financial Statements
|
Schedule
2
|
|
Interim
Financial Statements
|
Schedule
3
|
|
|
Schedule
4
|
|
Machinery
and Equipment
|
Schedule
5
|
|
Vehicles
|
Schedule
6
|
|
|
Schedule
7
|
|
|
Schedule
8
|
|
Licences
and Permits
|
Schedule
9
|
|
|
Schedule
10
|
|
Allocation
of Purchase Price
|
Schedule
11
|
|
Location
of Assets
|
Schedule
12
|
|
Permitted
Encumbrances
|
Schedule
13
|
|
Insurance
Policies
|
|
|
|
Schedule
14
|
Legal
and Regulatory Proceedings
|
|
Schedule
15
|
Regulatory
Consents
|
|
Schedule
16
|
Third
Party Consents
|
|
Schedule
17
|
Major
Customers
|
|
Schedule
18
|
|
|
Schedule
19
|
Affiliates
|
|
Schedule
20
|
Prepaid
Expenses
|
|
Schedule
21
|
Purchase
Orders Issued for Goods or Services Not Received at Closing
|
|
Schedule
22
|
Backlog
of Purchase Orders Received and Not Fulfilled at Closing
|
|
Schedule
23
|
Lease
of Equipments, Machinery, Cars and Other Fixed Assets
|
|
Schedule
24
|
Environment
|
|
Schedule
25
|
Bank
accounts of the Subsidiaries
|
|
Schedule
26
|
Software
Licences
|
|
Schedule
27
|
Unaudited
Financial Statements
|
|
Schedule
28
|
Purchased
Assets Related to US Activities
|
|
Schedule
29
|
|
Purchase
Orders - Embedded Planets
|
Schedule
30
|
Post-closing
Assistance to the Vendor
|
|
(a) |
Real
Property
.
All real property, together with the buildings, structures, improvements
and appurtenances situated thereon, including, without limitation,
the
real property described in
Schedule
3
;
|
(b) |
Leases
of Real Property
.
All rights (whether as lessee or lessor) under leases of real property,
together with all leasehold improvements relating thereto, including,
without limitation, all rights under the leases described in
Schedule
3
;
|
(c) |
Machinery
and Equipment
.
All machinery, equipment, fixtures, furniture, furnishings, parts,
tooling
melds, dies, jigs or patterns and other fixed assets associated with
the
ongoing operation of the Purchased Business, whether or not located
in or
on the premises of the Vendor or elsewhere, including, without limitation,
the machinery and equipment described in
Schedule
4
;
|
(d) |
Vehicles
.
All trucks, cars and other vehicles, including, without limitation,
the
vehicles described in
Schedule
5
;
|
(e) |
Inventories
.
All inventories, including, without limitation, raw materials,
work-in-process, finished goods and replacement
parts;
|
(f) |
Accounts
Receivable
.
All accounts receivable, trade accounts, notes receivable, book debts
and
other debts due or accruing due to the Vendor and the benefit of
all
security for such accounts, notes and
debts;
|
(g) |
Prepaid
Expenses
.
All prepaid expenses, deferred costs and expenses relating to the
Purchased Business and all other items relating to the Purchased
Business
of the type classified as current assets in accordance with generally
accepted accounting principles, including those expenses and costs
listed
in
Schedule
20
;
|
(h) |
Agreements
.
All rights under leases of personal property, orders or contracts
for the
provision of goods or services (whether as buyer or seller), distribution
and agency agreements, employment and collective agreements, agreements
and instruments relating to employee pension or benefit plans and
other
Contracts not otherwise referred to in this section
2.1
,
including, without limitation, the Contracts described in
Schedule
6
and
Schedule
7
;
|
(i) |
Licences
and Permits
.
All licences, permits, approvals, consents, registrations, certificates
and other authorizations of any kind required to conduct the Purchased
Business, including, without limitation, those described in
Schedule
8
;
|
(j) |
Intellectual
Property
.
All trade or brand names, business names, domain names, trade marks,
trade
mark registrations and applications, service marks, service mark
registrations and applications, copyrights, copyright registrations
and
applications, patents, patent registrations and applications and
other
patent rights (including any patents issued on such applications
or
rights), trade secrets, proprietary manufacturing information, custom
software, software not generally available to the public used in
connection with the Purchased Business, source codes, fully annotated,
for
all custom software (including all software not generally available
to the
public used in connection with the Purchased Business) and know-how,
equipment and parts lists and descriptions, instruction manuals,
inventions, inventors' notes, research data, unpatented blue prints,
drawings, logos and designs, formulae, processes, technology and
other
intellectual property, together with all rights under licences, technology
transfer agreements and other agreements or instruments relating
to any of
the foregoing (collectively, "Intellectual Property"), including,
without
limitation, the trade marks, copyrights, patents, licences and agreements
described in
Schedule
9
;
|
(k) |
Computer
Hardware and Software
.
All computer hardware and software associated with the ongoing operation
of the Purchased Business, including all rights under licences and
other
agreements or instruments relating
thereto;
|
(l) |
Books
and Records
.
All books and records (other than those required by Laws to be retained
by
the Vendor, copies of which will be provided to the Purchaser no
later
than on Closing Date), including without limitation, customer lists,
sales
records, price lists and catalogues, sales literature, advertising
material, manufacturing data, production records, employee manuals,
personnel records, supply records, inventory records and correspondence
files (together with, in the case of any such information that is
stored
electronically, the media on which the same is
stored);
|
(m) |
Securities.
All
shares and other securities held by the Vendor in Affiliates listed
in
Schedule
19
;
|
(n) |
Goodwill
.
All goodwill, (including all rights in every telephone number used
by the
Vendor) together with the exclusive right for the Purchaser to represent
itself as carrying on the Purchased Business in succession to the
Vendor
and the right to use any words indicating that the Purchased Business
is
so carried on, including the exclusive right to use the name
"Consultronics", or any variation thereof, as part of the name or
style
under which the Purchased Business or any part thereof is carried
on by
the Purchaser; and
|
(o) |
Other
Assets
.
Unless expressly excluded in this Agreement, all other or additional
privileges, rights, interests and assets of the Vendor that are used
in
the Purchased Business.
|
(a) |
Cash
.
All cash and cash equivalents of the Vendor (except for cash and cash
equivalents of the Subsidiaries);
|
(b) |
Income
Taxes
.
All income tax instalments paid by the Vendor and the right to receive
any
refund of income taxes paid by the Vendor, however any income tax
liability will be assumed by the Vendor and excluded from the Working
Capital;
|
(c) |
Investment
Tax Credits
.
All federal and provincial tax credits of the
Vendor;
|
(d) |
Shares
of Consultronics USA.
All
issued and outstanding shares of Consultronics USA provided that
on the
Closing Date, all Contracts to which Consultronics USA is a party
are
assigned to the Purchaser; and
|
(e) |
Insurance.
All
rights, titles and interests of the Vendor into the Key Man Insurance
-
Andre Rekai, the Accounts Receivable Insurance - Consultronics Limited
and
the directors and officers liability insurance
policy.
|
(a) |
an
amount equal to the Working Capital of the Vendor estimated by the
parties
to be an aggregate amount of $3,000,000, such amount to be adjusted
on the
basis of the Closing Audited Financial
Statements;
|
(b) |
an
amount of $16,500,000; and
|
(c) |
an
amount equal to the principal amount outstanding under the Existing
Mortgage together with all accrued interest up to and including the
Closing Date, plus an amount equal to two (2) months interest payable
as a
penalty on the prepayment of the Existing Mortgage;
|
(d) |
any
amount due by Consultronics Hungary, as the case may be, to the Vendor,
as
of the Closing Date, plus interest thereon, as the case may
be.
|
(a) |
An
amount of
two
million dollars ($2,000,000) sha
ll
be deposited at Closing with the Purchaser’s legal counsel, in escrow, in
order to ensure that all representations and warranties of the Vendor
are
true and correct and the agreements with the Purchaser are or will
be
performed. Seventy-five percent (75%) of the said sum shall be released
twelve (12) months following the Closing Date and the balance shall
be
released eighteen (18) months following the Closing Date unless,
in the
meantime, the Purchaser has presented to the Vendor a Claim, in which
case, the Purchaser shall be entitled to retain an amount equivalent
to
the amount of the Claim until such Claim is settled in accordance
with
Article XI hereof; and
|
(b) |
the
balance of the Purchase Price shall be paid by certified cheque or
bank
draft payable to or to the order of the Vendor or, if the Vendor
so
directs at least two Business Days prior to the Closing Date, by
way of
electronic transfer of immediately available funds to such bank account
in
Toronto, Ontario as the Vendor may specify in such direction, subject
to
registration of the deed of sale for the Real Property and entering
of
such transfer, in the Land Titles Office, without any adverse entry
other
than Permitted Encumbrances.
|
(a) |
Closing
Statements.
As
soon as possible, but not later than 90 days following the Closing
Date,
the Vendor's auditors shall deliver to the Purchaser, at Vendor’s expense,
audited consolidated financial statements (the "Closing Audited Financial
Statements") of the Vendor as of the close of business on the day
immediately prior to the Closing Date, prepared in accordance with
generally accepted accounting principles and Vendor’s accounting
practices, applied on a basis consistent with the Audited Financial
Statements together with a schedule setting out the adjustment amount,
if
any, calculated in accordance with section
3.4
(that schedule and the Closing Audited Financial Statements, collectively,
the "Closing Statements"). For the purpose of preparing the Closing
Statements, the Purchaser shall grant to the Vendor’s authorized
representatives reasonable access to relevant records, facilities
and
personnel of the Purchased Business. The Vendor and the Purchaser
shall
co-operate fully with each other in the preparation of the Closing
Statements.
|
(b) |
Approval
of Closing Statements
.
The
Purchaser shall have 30 days from receipt of the Closing Statements
within
which to review the Closing Statements. For the purposes of this
review,
the Vendor shall permit the Purchaser and the Purchaser's authorized
representatives to examine the working papers, schedules and other
documents and information used or prepared by the Vendor or the Vendor's
auditors in connection with the preparation of the Closing Statements.
The
Purchaser may dispute any of the items in the Closing Statements
by
written notice (an "Objection Notice") to the Vendor within the same
30
days. If the Purchaser has not delivered an Objection Notice to the
Vendor
within this 30 day period, the Purchaser shall be deemed to have
accepted
the Closing Statements. If the Purchaser delivers an Objection Notice,
the
Vendor and the Purchaser shall attempt to resolve all of the items
in
dispute within 15
days
of receipt of the Objection Notice. If all items in dispute are not
resolved within this 15
day
period, such unresolved items will be submitted to an independent
third
party arbitrator, which shall be a national audit firm (the "Independent
Auditor"), appointed together by the Vendor and the Purchaser to
resolve
the remaining items in dispute.
In
case the parties fail to select the Independent Auditor within 15
days,
the Independent Auditor shall be appointed by a judge of the Superior
Court of Justice of Ontario in the Toronto Region, upon application
of
either party.
|
(c) |
Each
party shall furnish to the Independent Auditor those working papers,
schedules and other documents, and information relating to the items
in
dispute, that are available to that party or its auditors as the
Independent Auditor may require. The Independent Auditor shall be
instructed that time is of the essence in proceeding with its
determination of any dispute, and the decision of the Independent
Auditor
with respect to any item in dispute shall be in writing and shall
be final
and binding on the Vendor and the Purchaser with no rights of challenge,
review or appeal to the courts in any manner. The Independent Auditor,
in
making its determination of any dispute, does not act as an arbitrator
and
is not required to engage in a judicial inquiry worked out in a judicial
manner.
|
(d) |
On
agreement or decision, as the case may be, with respect to all items
in
dispute, the Closing Statements shall be deemed to be amended as
may be
necessary to reflect the agreement or the decision, as the case may
be. In
this event, references in this Agreement to the Closing Statements
shall
be references to the Closing Statements, as so
amended.
|
(e) |
The
fees and expenses of the Independent Auditor shall be borne equally
by the
Vendor, on the one hand, and the Purchaser, on the other hand, but
each
party shall be responsible for its own costs and
expenses.
|
(a) |
If
the Working Capital of the Vendor, as set out in the Closing Audited
Financial Statements (as accepted or amended under section 3.3 above)
,
is:
|
(i) |
less
than $3,000,000, the Purchase Price shall be reduced;
or
|
(ii) |
more
than $3,000,000, the Purchase Price shall be
increased;
|
(b) |
if
any Purchased Asset(s) (including the Prepaid Expenses) cannot be
transferred to the Purchaser, the Purchase Price shall be reduced
by the
book value assigned to such Purchased Assets in the preparation of
the
Closing Audited Financial Statements, which book values shall be
set out
in the Schedule forming part of the Closing
Statements;
|
(c) |
in
determining the adjustment to the Purchase Price for purposes of
the
schedule forming part of the Closing Statements, any reduction under
subsection (b) shall be set off against any increase under clause
(a)(ii);
and
|
(d) |
the
total (or net, as the case may be) amount of the increase or reduction
in
the Purchase Price shall be paid by the Purchaser to the Vendor,
or by the
Vendor to the Purchaser, as the case may be, within two (2) Business
Days
after the Closing Statements are finalized by deemed acceptance,
agreement
or arbitration under section 3.3, by way of electronic transfer of
immediately available funds to such bank account in Canada as the
payee
specifies.
|
(a) |
The
Purchaser will ensure that any amount referred to in section
3.1(d)
due by Consultronics Hungary to the Vendor as of the Closing Date
will be
repaid by Consultronics Hungary to the Vendor within ten (10) business
days following the Closing Date.
|
(b) |
If,
as a result of the repayment or forgiveness of intercorporate loans
between the Vendor and Consultronics Europe, the amount of the tax
losses
available to Consultronics Europe is reduced, then the Purchase Price
shall be reduced by an amount equal
to:
|
(i) |
the
amount of such reduction of tax
losses;
|
(ii) |
the
effective UK tax rate which would apply to taxable income of Consultronics
Europe;
|
(iii) |
two-thirds
(66.67%).
|
(a) |
the
Contracts described in
Schedule
3
,
Schedule
6
,
Schedule
7
and
Schedule
9
;
|
(b) |
the
licences, permits, approvals, consents, registrations, certificates
and
other authorizations described in
Schedule
8
;
|
(c) |
the
agreements entered into by the Vendor for the provision of services
or
goods to the Vendor which are detailed in
Schedule
21
;
|
(d) |
the
agreements entered into by the Vendor for the sale of inventories
by the
Vendor or the provision of services by the Vendor after the Closing
Date
which are detailed in
Schedule
22
;
|
(e) |
the
outstanding balance due on the capital leases (current and long term)
as
reflected in the Closing Audited Financial
Statements;
|
(f) |
the
current liabilities as reflected in the Closing Audited Financial
Statements, excluding any income tax liabilities
;
and
|
(g) |
warranty
claims in respect of products sold prior to the Closing Date, but
only to
the maximum number of units in respect of which a warranty reserve
is
included in the Closing Audited Financial
Statements.
|
(h) |
for
Taxes payable, collectible or remittable by the Vendor in respect
of the
Purchased Business and the Purchased Assets, provided that real property
and other Taxes levied with respect to the Purchased Assets for a
taxable
period that includes but does not end on the Closing Date shall be
apportioned between the Vendor and the Purchaser such that the Vendor
shall be liable for the amount determined by multiplying the Taxes
to be
apportioned by a fraction, the numerator of which is the number of
days in
the taxable period up to the Closing Date and the denominator of
which is
the total number of days in the period, and the Purchaser shall be
liable
for the balance;
|
(i) |
pursuant
to any default of the Vendor under any of the
Contracts;
|
(j) |
pursuant
to any warranty claim for any manufactured products prior to the
Closing
Date, in excess of the number of units recorded as warranty reserve
in the
Closing Audited Financial Statements and in
Schedule
18
;
such warranty claims will be tracked based on the number of products
returned and the calculation of the claim will be based on the calculation
of the reserve as set of in
Schedule
18
;
and
|
(k) |
pursuant
to any other liabilities payable on or prior to the Closing Date
and not
included in the liabilities reflected in the Closing Audited Financial
Statements.
|
(a) |
the
breach or violation of any of the provisions of, or constitute a
default
under, or conflict with or cause the acceleration of any obligation
of the
Vendor or any of the Subsidiaries
under:
|
(i) |
any
Contract to which the Vendor, the Vendor’s Party or any of the
Subsidiaries is a party or by which it is or its properties are bound;
nor
|
(ii) |
any
provision of the constating documents or by-laws or resolutions of
the
board of directors (or any committee thereof) or shareholders of
the
Vendor or any of the Subsidiaries;
nor
|
(iii) |
any
judgment, decree, order or award of any court, governmental body
or
arbitrator having jurisdiction over the Vendor, the Subsidiaries
or
Vendor’s Party; nor
|
(b) |
a
violation of any Laws to which the Vendor, the Vendor’s Party, the
Subsidiaries, the Purchased Assets or the Purchased Business are
subject,
other than the
Bulk
Sales Act
(Ontario).
|
(a) |
the
Permitted Encumbrances constitute all of the Encumbrances, agreements,
indentures and other matters, including, without limitation, all
unregistered Encumbrances, that affect the Real Property or the Leased
Property, and the Vendor has not received any notice of default under,
or
termination of, any of the Permitted
Encumbrances;
|
(b) |
each
of the Real Property and the Leased Property (including all buildings,
improvements and fixtures) is in good state of repair and is fit
for its
present use, and with the exception that it may be advisable to replace
the heating and air conditioning units at the Concord facility in
the
Spring of 2006 (the costs of which shall not exceed $80,000), there
are no
faults in design, material or structural repairs, defects or replacements
that are necessary or advisable and, without limiting the foregoing,
there
are no repairs to, or replacements of, the roof or the mechanical,
electrical, heating, ventilating, air-conditioning, plumbing or drainage
equipment or systems that are necessary or advisable; and none of
the Real
Property or the Leased Property is currently undergoing any alteration
or
renovation nor is any such alteration or renovation
contemplated;
|
(c) |
the
Real Property and the Leased Property, with regard to the location,
construction, occupancy and use thereof, are in compliance with all
of the
applicable Laws and regulations, municipal or otherwise; no buildings
or
other structures located on the Real Property encroaches upon any
land not
owned by the Vendor; no buildings or other structures located on
adjacent
property encroaches upon the Real Property; and there are no restrictive
covenants, municipal by-laws or other laws or regulations which in
any way
restrict or prohibit the use of the Real Property or Leased Property
or
the buildings or structures located thereon for the purposes for
which
they are presently being used, other than Permitted Encumbrances;
and
|
(d) |
there
are no expropriation or similar proceedings, actual or threatened,
of
which the Vendor has received notice against the Real Property or
the
Leased Property.
|
5.9.1 |
In
this section,
|
(a) |
"
Environment
"
means th
e
ambient air, all layers of the atmosphere, surface water, underground
water, all land, all living
organisms and th
e
interacting natural systems that include components of air, land,
water,
organic and inorganic matter and living organisms, and includes indoor
spaces;
|
(b) |
"
Environmental
Law
"
means all federal, provincial, municipal or local statutes, regulations,
by-laws, Environmental Permits, orders or rul
es,
and any policies or guidelines of any Governmental Authority or regulatory
body or agency, and any requirements or obligations arising under
the
common law, relating to the Environment, the transportation of dangerous
goods and occupational health and
safety;
|
(c) |
"
Environmental
Permits
"
means all permits, licences, approvals, consents, authorizations,
registrations and certificates issued by or prov
ided
to, as the case may be, any government or Governmental Authority
pursuant
to an Environmental Law;
|
(d) |
"
Premises
"
means all real property, buildings and facilities, including any
part of
any such property, building or facility owned, leased,
or
operated by the Vendor or any of the Subsidiaries in connection with
the
Purchased Business; and
|
(e) |
"
Substance
"
means any substance or material which under any Environmental Law
is
defined to be "hazardous", "toxic", "deleterious", "caust
ic",
"dangerous", a "contaminant", a "pollutant", a "dangerous good",
a
"waste", a "source of contamination" or a source of a
"pollutant".
|
5.9.2 |
Except
as disclosed in
Schedule
24
,
|
(a) |
neither
the Vendor nor any other Person has emitted, discharged,
deposi
ted
or released or caused or permitted to be emitted, discharged,
d
eposited
or released, any Substances on or to the Premises, or in connection
with
the operation of the Purchased Business, except in compliance with
Environmental Law;
|
(b) |
the
soil and subsoil, and the surface and ground water in, on or under
the
Premises do not contain any Substances, nor do the Premises
con
tain
any underground storage tanks; all Substances which have been or
are being
treated or stored on the Premises have been generated, treated and
stored
in compliance with Environmental
Law;
|
(c) |
no
polychlorinated biphenyls, asbestos containing materials, lead or
urea-formaldehyde is or has ever been on, at, in or under the
Premise
s;
and
|
(d) |
neither
the Vendor nor any of the Subsidiaries has permitted the Premises
to be
used for the disposal of any
Substance.
|
5.9.3 |
All
Environmental Permits obtained by the Vendor i
n
connection with the Purchased Business (including any applicable
expiry
dates) are listed in
Schedule
24
and are valid and in full force and
effect.
|
5.9.4 |
There
are no proceedings against or involving
the
Vendor or any of the Subsidiaries either in progress, pending, or
threatened which allege the violation of, or non-compliance with,
any
Environmental Law.
|
5.9.5 |
For
greater certainty, the representations and warranties contained in
section
5.2
,
5.4
,
5.16
and
5.17
apply to Environmental Permits.
|
(a) |
any
material adverse change in the financial condition of the Purchased
Business;
|
(b) |
any
material obligation or liability incurred by the Vendor or any of
the
Subsidiaries in connection with the Purchased Business, other than
those
incurred in the ordinary and normal course of the Purchased Business
and
consistent with past practice and with the exception of a 5 year
lease
commitment in the amount of approximately $635,000 for certain production
machinery;
|
(c) |
any
payment, discharge or satisfaction of any Encumbrance, liability
or
obligation of the Vendor or any of the Subsidiaries in relation to
the
Purchased Business or the Purchased Assets other than payment of
accounts
payable and tax liabilities incurred in the ordinary and normal course
of
business consistent with past
practice;
|
(d) |
any
licence, sale, assignment, transfer, disposition, pledge, mortgage
or
granting of a security interest or other Encumbrance on or over any
Purchased Assets, other than sales of inventory to customers in the
ordinary and normal course of the Purchased
Business;
|
(e) |
any
general increase in the compensation of employees of the Vendor or
any of
the Subsidiaries, involved in the Purchased Business (including,
without
limitation, any increase pursuant to any Employee Plan or commitment),
or
any increase in any such compensation or bonus payable to any officer,
employee, consultant or agent thereof, with the exception of a general
salary review in September 2005 resulting in increases in salaries
averaging approximately 5%;
|
(f) |
any
change in the employment conditions, benefit, bonus and severance
packages
for management personnel of the Purchased
Business;
|
(g) |
any
forward purchase commitments in excess of the requirements of the
Purchased Business for normal operating inventories or at prices
higher
than the current market prices;
|
(h) |
any
forward sales commitments other than in the ordinary and normal course
of
the Purchased Business;
|
(i) |
any
change in the accounting or tax practices followed by the Vendor
or any of
the Subsidiaries;
|
(j) |
any
change adopted in the depreciation or amortization policies or rates;
or
|
(k) |
any
change in the credit terms offered to customers of, or by suppliers
to,
the Purchased Business.
|
(a) |
any
Contract to which the Purchaser is a party or by which it is
bound;
|
(b) |
any
provision of the constating documents or by-laws or resolutions of
the
board of directors (or any committee thereof) or shareholders of
the
Purchaser;
|
(c) |
any
judgment, decree, order or award of any court, governmental body
or
arbitrator having jurisdiction over the Purchaser;
or
|
(d) |
any
applicable law, statute, ordinance, regulation or
rule.
|
All
of the declarations, representations and warranties made or given
herein,
and in any document or certificate ancillary hereto, will continue
to have
full force and effect from the Closing Date for the period indicated
hereinbelow, notwithstanding any investigation which the Purchaser
may
have made prior to the Closing, the whole subject to the following
terms
and conditions:
|
(a) |
the
representations and warranties set out in paragraphs
5.1
to
5.4
,
5.6
,
5.8
,
5.9
,
5.13
and
5.17
will continue to have full force and effect from the Closing Date,
without
any time limitation;
|
(b) |
all
of the declarations, representations and warranties set out in Article
V,
excluding those referred to in sub-paragraphs 7.1 (a) and 7.1 (c)
or and
in Article VI, will continue to have full force and effect for a
period of
two years from the Closing Date;
|
(c) |
all
of the Vendor and the Vendor’s Party’s declarations, representations and
warranties herein that are related directly or indirectly to taxation
will
continue to have full force and effect for the prescribed fiscal
prescription period and, without any time limitation in the event
of any
re-assessment of prior years, notice of assessment, or misrepresentation
of facts, through negligence, carelessness or voluntary omission,
or where
a return has been filed or information has been furnished fraudulently
for
the purposes of any Tax law.
|
(a) |
employees
employed in the Purchased Business;
|
(b) |
customers,
suppliers, distributors or others who have or have had a business
relationship with the Vendor in respect of the Purchased Business;
and
|
(c) |
the
auditors, solicitors or any other persons engaged or previously engaged
to
provide services to the Vendor who have knowledge of matters relating
to
the Purchased Business or Purchased
Assets.
|
(a) |
Conduct
Business in the Ordinary Course
.
Each of the Vendor and the Subsidiaries shall conduct the Purchased
Business only in the ordinary and normal course consistent with past
practice and each of the Vendor and the Subsidiaries shall not, without
the prior written consent of the Purchaser, enter into any transaction
or
refrain from doing any action that, if effected before the date of
this
Agreement, would constitute a breach of any representation, warranty,
covenant or other obligation of the Vendor contained herein, and
each of
the Vendor and the Subsidiaries shall not enter into any material
supply
arrangements relating to the Purchased Business or make any material
decisions or enter into any material Contracts with respect to the
Purchased Business without the consent of the
Purchaser;
|
(b) |
Continue
Insurance
.
Until the Time of Closing each of the Vendor and the Subsidiaries
shall
continue to maintain in full force and effect all policies of insurance
or
renewals thereof now in effect;
|
(c) |
Regulatory
Consents.
The
Vendor shall obtain, at or prior to the Time of Closing, from all
appropriate federal, provincial, municipal or other governmental
or
regulatory bodies, licences, permits, consents, approvals, certificates,
registrations, and authorizations described in
Schedule
15
.
|
(d) |
Contractual
Consents
.
The Vendor shall give or obtain, at or prior to the Time of Closing,
the
notices, consents and approvals described in
Schedule
16
;
|
(e) |
Preserve
Goodwill
.
The Vendor shall use its best efforts to preserve intact the Purchased
Business and Purchased Assets and to carry on the Purchased Business
as
currently conducted, and the Vendor shall use its best efforts to
promote
and preserve for the Purchaser the goodwill of suppliers, customers
and
others having business relations with the
Vendor;
|
(f) |
Discharge
Liabilities
.
The Vendor shall pay and discharge the liabilities of the Vendor
relating
to the Purchased Business in the ordinary course in accordance and
consistent with the previous practice of the Vendor, except those
contested in good faith by the
Vendor;
|
(g) |
Corporate
Action
.
The Vendor shall take or cause to be taken all necessary corporate
action,
steps and proceedings to approve or authorize, validly and effectively,
the transfer of the Purchased Assets to the Purchaser and the execution
and delivery of this Agreement and the other agreements and documents
contemplated hereby and to cause all necessary meetings of directors
and
shareholders of the Vendor to be held for such purpose;
and
|
(h) |
Best
Efforts
.
The Vendor shall use its best efforts to satisfy the conditions of
Closing
in favour of the Purchaser mentioned in section
9.1
hereof, excluding however the condition contained in subsection
9.1(b)
.
|
(a) |
The
Vendor and the Subsidiaries agree to provide the Purchaser with an
up-to-date list of the names of the Employees at least two Business
Days
and not more than four Business Days prior to the Closing Date. The
Purchaser agrees that it shall offer employment to all Employees,
effective as at the Time of Closing and conditional on the Closing
of this
Agreement and the transactions contemplated in the Agreement (the
"Remaining Employees"), on substantially the same terms and conditions
of
employment in aggregate as are then applicable to the
Employees.
However, nothing herein shall reduce the Purchaser’s management rights in
the pursuit of the Purchased Business, including, without limitation,
the
right to terminate or dismiss any of the Remaining
Employees.
|
(b) |
The
Vendor and the Subsidiaries shall employ all of the employees set
out in
Schedule
7
until the Time of Closing, except for any employees who prior to
the Time
of Closing (the "Former
Employees"):
|
(i) |
are
terminated for cause;
|
(ii) |
are
terminated with the Purchaser's consent, which consent shall not
be
unreasonably withheld;
|
(iii) |
voluntarily
resign;
|
(iv) |
retire;
or
|
(v) |
do
not accept the Purchaser’s offer of
employment.
|
(a) |
their
period of employment shall include employment with both the Vendor
and the
Purchaser and shall be deemed not to have been interrupted at the
Time of
Closing; and
|
(b) |
their
period of membership shall include membership in both the Employee
Plans
and the Replacement Plans and shall be deemed not to have been interrupted
at the Time of Closing.
|
(a) |
Due
Diligence Process
.
The Purchaser shall have completed and shall, acting reasonably,
be fully
satisfied with its Due Diligence
Process;
|
(b) |
Representations
and Warranties
.
The representations and warranties of the Vendor contained in this
Agreement shall be true and correct at the Time of Closing with the
same
force and effect as if such representations and warranties were made
at
and as of such time, and a certificate of the President of the Vendor,
dated the Closing Date, to that effect shall have been delivered
to the
Purchaser, such certificate to be in form and substance satisfactory
to
the Purchaser, acting reasonably;
|
(c) |
Covenants
.
All of the terms, covenants and conditions of this Agreement to be
complied with or performed by the Vendor at or before the Time of
Closing
shall have been complied with or performed, and a certificate of
the
President of the Vendor, dated the Closing Date, to that effect shall
have
been delivered to the Purchaser, such certificate to be in form and
substance satisfactory to the Purchaser, acting
reasonably;
|
(d) |
Regulatory
Consents
.
There shall have been obtained from all appropriate federal, provincial,
municipal or other governmental or administrative bodies such licences,
permits, consents, approvals, certificates, registrations and
authorizations as are required to be obtained by the Vendor or any
of the
Subsidiaries to permit the change of ownership of the Purchased Assets
contemplated hereby, including, without limitation, those described
in
Schedule
15
,
in each case in form and substance satisfactory to the Purchaser,
acting
reasonably;
|
(e) |
Contractual
Consents
.
The Vendor shall have given or obtained all the notices, consents
and
approvals described in
Schedule
16
,
including consents to assignment of Leases, shareholders' consent
to
proceed with the transactions contemplated herein and renunciation
by each
outside investor, including every shareholder being a party to any
shareholders agreements or similar agreement, to any right thereunder,
in
each case in form and substance satisfactory to the Purchaser, acting
reasonably;
|
(f) |
Non-Competition
Agreement
.
The Vendor, the Vendor’s Party and the current senior management team
shall have executed and delivered to the Purchaser a non-competition
agreement upon such terms and conditions to be negotiated between
the
parties, acting reasonably;
|
(g) |
No
Action or Proceeding
.
No legal or regulatory action or proceeding shall be pending or threatened
by any person to enjoin, restrict or prohibit the purchase and sale
of the
Purchased Assets contemplated
hereby;
|
(h) |
No
Material Damage
.
No material damage by fire or other hazard to the whole or any material
part of the Purchased Assets shall have occurred from the date of
the
preliminary offer with respect to the transactions contemplated herein
presented by the Purchaser to the Vendor on October 27, 2005, to
the time
of Closing;
|
(i) |
No
Material Adverse Change
.
There shall have been no material adverse change in the Purchased
Business
since May 31, 2005;
|
(j) |
Instruments
of Transfer
.
The Vendor shall have received from its Affiliates such instruments
of
transfer necessary (including the share certificates) to transfer
the
securities of such Affiliates held by the Vendor from the Vendor
to the
Purchaser;
|
(k) |
Legal
Opinion from Vendor’s Legal Counsel
.
The Purchaser will have received, at Closing, a legal opinion from
the
Vendor’s legal counsel, the form and content of which are satisfactory to
the Purchaser and its counsel; such opinion will deal, among other
things,
but without restricting the generality of the foregoing, with questions
of
law relating to the corporate and legal status of each of the Vendor
and
the Subsidiaries, the authority of each of the Vendor and the Subsidiaries
in respect of the transactions contemplated by this Agreement, and
its
power and capacity, and will attest to the validity of the Vendor’s
registered title of ownership to the Real Property, the Subsidiaries’
Shares and any patents part of the Intellectual
Property;
|
(l) |
Title
to Real Property
.
On Closing, the Purchaser shall acquire good and marketable title
to the
Real Property, free and clear of all Encumbrances, including the
Existing
Mortgage and any interest and penalty thereon which shall have been
paid
by Vendor, other than Permitted
Encumbrances;
|
(m) |
Employment
Agreements.
Employment Agreements will be signed by the key employees, as determined
by the Purchaser;
|
(n) |
Environment.
A
phase 1 environment study with respect to the Real Property, without
any
reserve or any potential liability mentioned therein, will be delivered
by
the Vendor to the Purchaser no later than on the Closing
Date;
|
(o) |
Customer
Purchase Orders.
The
Purchaser will have received from the Vendor evidence of sufficient
and
normal backlog (customer purchase orders) and work in progress in
accordance with current practices of the Vendor on the Closing
Date;
|
(p) |
Good
Standing.
The Vendor will deliver to the Purchaser certificates of good standing
with respect to the Vendor and each of the
Subsidiaries;
|
(q) |
Retail
Sales Tax
.
Delivery
of Evidence Relating to Retail Sales Tax.
The
Vendor shall have delivered to the Purchaser the certificate contemplated
by section
8.6
representing evidence that all governmental charges required to be
withheld and remitted by the Vendor in respect of the Purchased Business
under the
Retail
Sales Tax Act
(Ontario)
have been paid
;
|
(r) |
Health
and Safety.
Delivery
of Evidence Relating to Workplace Safety and Insurance
Compliance
.
The Vendor shall have delivered to the Purchaser a Clearance Certificate
from the Ontario Workplace Safety and Insurance Board and any similar
certificate from other provincial workers’ compensation boards where there
are Employees in such province confirming that the Vendor has made
all
payments in respect of workers’ compensation up to the Closing Date and
there are no outstanding amounts owing;
|
(s) |
Inter-company
accounts.
Consultronics Europe must have paid or transferred as share capital
all
its inter-company balances due to the Vendor on or prior to the Closing
Date;
|
(t) |
Cash
-
Subsidiaries
.
All cash and cash equivalents of the Subsidiaries, as of the Closing
Date
as per the Subsidiaries’ audited financial statements, will remain with
the Subsidiaries;
|
(u) |
Termination.
Save and except for any confidentiality undertakings in favour of
the
Purchaser, all agreements between the Vendor and the Purchaser executed
before the date of this Agreement will be terminated as of the Closing
Date, and each of the Vendor and the Purchaser will grant in favour
of the
other a release and discharge with respect to such
agreements;
|
(v) |
Additional
Agreements.
The execution by the Vendors of all required documents and agreements
to
register the assignment of the Purchased Assets, including, without
limitation, a Deed of transfer with respect to the Real Property
and the
required documentation with respect to the Intellectual
Property;
|
(w) |
Schedules.
The Purchaser shall have received and approved updated Schedules
to this
Agreement; and
|
(x) |
Authorizations
and Other Documentation.
All of the documents relating to the authorization and execution
of the
transactions provided for herein and all of the actions and measures
taken
on or prior to the Closing Date in respect of the fulfilment by the
Vendor
of its obligations pursuant hereto will be satisfactory to the Purchaser
and its counsel, and the Purchaser will have received copies of all
such
documents in a form which is satisfactory to the Purchaser and its
counsel.
|
(a) |
Representations
and Warranties
.
The representations and warranties of the Purchaser contained in
this
Agreement shall be true and correct in all material respects at the
Time
of Closing with the same force and effect as if such representations
and
warranties were made at and as of such time, and a certificate of
the
President of the Purchaser, dated the Closing Date, to that effect
shall
have been delivered to the Vendor, such certificate to be in form
and
substance satisfactory to the Vendor, acting
reasonably;
|
(b) |
Covenants
.
All of the terms, covenants and conditions of this Agreement to be
complied with or performed by the Purchaser at or before the Time
of
Closing shall have been complied with or performed in all material
respects, and a certificate of the President of the Purchaser, dated
the
Closing Date, to that effect shall have been delivered to the Vendor,
such
certificate to be in form and substance satisfactory to the Vendor,
acting
reasonably;
|
(c) |
Regulatory
Consents
.
There shall have been obtained from all appropriate federal, provincial,
municipal or other governmental or administrative bodies such licences,
permits, consents, approvals, certificates, registrations and
authorizations as are required to be obtained by the Purchaser to
permit
the change of ownership of the Purchased Assets contemplated hereby,
including those described in
Schedule
15
;
|
(d) |
Bulk
Sales Compliance.
It
is agreed that the Purchaser shall not require the Vendor to comply,
or to
assist the Purchaser to comply, with the requirements of the
Bulk
Sales Act
(Ontario),
provided that, at the Closing Date, the Vendor will apply (or direct
the
Purchaser to apply) any payment made pursuant to section
3.2(b)
to
satisfy amounts owing by the Vendor to creditors of the Vendor not
accounted for in the Closing Audited Financial Statements. Notwithstanding
the foregoing, the Vendor agrees to indemnify and save harmless the
Purchaser from and against any Claims (including Third Party Claims)
the
Purchaser may suffer or be exposed to by virtue of non-compliance
with the
Bulk
Sales Act
(Ontario);
and
|
(e) |
No
Action or Proceeding
.
No legal or regulatory action or proceeding shall be pending or threatened
by any person to enjoin, restrict or prohibit the purchase and sale
of the
Purchased Assets contemplated
hereby.
|
(a) |
any
breach by the Vendor of or any inaccuracy of any representation or
warranty of the Vendor contained in this Agreement or in any agreement,
certificate or other document delivered pursuant hereto (provided
that the
Vendor shall not be required to indemnify or save harmless the Purchaser
in respect of any breach or inaccuracy of any representation or warranty
unless the Purchaser shall have provided notice to the Vendor in
accordance with section
11.3
on
or prior to the expiration of the applicable time period related
to such
representation and warranty as set out in section
7.1
);
|
(b) |
any
breach or non-performance by the Vendor of any covenant to be performed
by
it that is contained in this Agreement or in any agreement, certificate
or
other document delivered pursuant
hereto;
|
(c) |
the
operations of the Purchased Business before the Time of Closing including,
without limitation, any failure by the Vendor to pay, satisfy, discharge,
perform or fulfil any of the Excluded
Liabilities;
|
(d) |
all
losses, costs and damages suffered by the Purchaser as a result of
the
failure of the Vendor to perform any of its obligations relating
to or in
respect of the Purchased Business not assumed by the Purchaser pursuant
to
this Agreement, or arising under contracts or other agreements assumed
by
the Purchaser pursuant to this Agreement but relating to or arising
out of
action or inaction of the Vendor and relating to events which occurred
prior to the Closing Date; and
|
(e) |
all
losses, costs and damages suffered by the Purchaser arising from
any claim
by or on behalf of any Former
Employees.
|
(a) |
any
breach by the Purchaser of or any inaccuracy of any representation
or
warranty contained in this Agreement or in any agreement, instrument,
certificate or other document delivered pursuant hereto (provided
that the
Purchaser shall not be required to indemnify or save harmless the
Vendor
in respect of any breach or inaccuracy of any representation or warranty
unless the Vendor shall have provided notice to the Purchaser in
accordance with section
11.3
on
or prior to the expiration of the applicable time period related
to such
representation and warranty as set out in section
7.1
);
|
(b) |
any
breach or non-performance by the Purchaser of any covenant to be
performed
by it that is contained in this Agreement or in any agreement, certificate
or other document delivered pursuant hereto;
and
|
(c) |
the
operations of the Purchased Business after the Time of Closing including,
without limitation, any failure by the Purchaser to pay, satisfy,
discharge, perform or fulfil any of the Assumed
Liabilities.
|
(a) |
the
factual basis for the Claim; and
|
(b) |
the
amount of the Claim, if known.
|
(a) |
Notwithstanding
any other provision of this
Article
XI
,
but subject to subsection
(b)
below, no claim for Losses may be made unless the amount thereof
exceeds
cumulatively and in aggregate $20,000, in which event the Indemnifying
Party shall become liable for the full amount of all Losses on a
dollar
for dollar basis, as from the first dollar
claimed.
|
(b) |
For
greater certainty, subsection (a) above shall not apply
to:
|
(i) |
the
Purchaser’s rights to sell Uncollected Accounts under section
11.9
;
|
(ii) |
claims
in respect of warranty obligations or inventories for which no reserve
has
been included in the Closing Audited Financial Statements, pursuant
respectively to sections
4.1(j)
and
11.8
;
|
(iii) |
any
amount payable as Purchase Price and any adjustment
thereof;
|
(iv) |
any
Tax Amounts or other Taxes; and
|
(v) |
any
amount claimed by the Purchaser for Excluded
Liabilities.
|
(c) |
The
Vendor and the Vendor’s Party shall be entitled to set off, against any
amount otherwise payable to or for the account of the Purchaser pursuant
to section
11.1
,
the amount by which any accrual or reserve included in the Closing
Audited
Financial Statements is conclusively determined to have exceeded
the
actual loss or liability in respect of which it was so included,
with the
exclusion of the warranty reserve referred to in section
4.1(j)
and the inventory reserve referred to in section
11.8
.
|
(a) |
any
hearing in the course of the arbitration shall be held in Toronto,
Ontario;
|
(b) |
the
application of section 7(2) of the Arbitration Act is expressly
excluded;
|
(c) |
subject
to section 44 of the Arbitration Act, any award or determination of
an arbitrator shall be final and binding on the parties and there
shall be
no appeal on any ground, including, for greater certainty, any appeal
on a
question of law, a question of fact, or a question of mixed fact
and
law;
|
(d) |
despite
section 28(1) of the Arbitration Act, an arbitrator shall not,
without the written consent of all parties to the arbitration, retain
any
expert;
|
(e) |
an
arbitrator may apportion the costs of the arbitration, including
the
reasonable fees and disbursements of the parties, between or among
the
parties in such manner as the arbitrator considers reasonable, provided
that an arbitrator shall not award costs on a distributive
basis;
|
(f) |
all
awards for the payment of money shall include prejudgment and postjudgment
interest in accordance with sections 127 to 130 of the
Courts
of Justice Act
(Ontario) with necessary modifications;
and
|
(g) |
all
matters relating to the arbitration shall be kept confidential to
the full
extent permitted by law and no individual shall be appointed as an
arbitrator unless he or she agrees in writing to be bound by this
dispute
resolution provision.
|
(a) |
Any
notice or other communication required or permitted to be given hereunder
shall be in writing and shall be delivered in person, transmitted
by
telecopy [or similar means of recorded electronic communication]
or sent
by registered mail, charges prepaid, addressed as
follows:
|
(i) |
if
to the Vendor:
|
(ii) |
if
to the Purchaser:
|
(b) |
Any
such notice or other communication shall be deemed to have been given
and
received on the day on which it was delivered or transmitted (or,
if such
day is not a Business Day, on the next following Business Day) or,
if
mailed, on the third Business Day following the date of mailing;
provided,
however, that if at the time of mailing or within three Business
Days
thereafter there is or occurs a labour dispute or other event that
might
reasonably be expected to disrupt the delivery of documents by mail,
any
notice or other communication hereunder shall be delivered or transmitted
by means of recorded electronic communication as
aforesaid.
|
(c) |
Either
party may at any time change its address for service from time to
time by
giving notice to the other party in accordance with this section
13.1
.
|
(a) |
Subject
to subsections
13.2(b)
and
13.2(c)
,
to the extent that any Purchased Asset is not capable of being sold,
assigned, transferred, delivered or subleased without the consent
or
waiver of any person, or if such sale, assignment, transfer, delivery
or
sublease, or attempted sale, assignment, delivery or sublease would
constitute a breach thereof or a violation of any law, statute, ordinance,
regulation, rule, judgment or order, this Agreement shall not constitute
a
sale, assignment, transfer, delivery or sublease thereof, or an attempted
sale, assignment, transfer, delivery or sublease thereof until such
consent or waiver of the applicable person is
received.
|
(b) |
Each
of the Vendor and the Vendor’s Party shall use its best efforts (and the
Purchaser shall reasonably cooperate with the Vendor) on or before
the
Closing Date and thereafter as required, to obtain the consents and
waivers referred to in subsection
13.2(a)
and to resolve the impediments to the sale, assignment, transfer,
delivery
or sublease referred to in subsection
13.2(a)
and to obtain any other consents and waivers necessary to convey
to the
Purchaser any of the Purchased
Assets.
|
(c) |
To
the extent that the consents and waivers referred to in subsection
13.2(a)
are not obtained by the Vendor, or until the impediments to the sale,
assignment, transfer, delivery or sublease referred to therein are
resolved, the Vendor shall, after the Closing
Date:
|
(i) |
hold
the benefits of any Purchased Asset referred to in subsection
13.2(a)
in
trust for the Purchaser in accordance with the provisions of this
subsection
13.2(c)
;
|
(ii) |
cooperate
in any reasonable and lawful arrangement, approved by the Purchaser,
designed to provide such benefits to the Purchaser;
and
|
(iii) |
enforce
and perform for the account of the Purchaser, any rights or obligations
of
the Vendor arising from any Purchased Asset referred to in subsection
13.2(a)
against or in respect of any person, including the right to elect
to
terminate in accordance with the terms thereof upon the advice of
the
Purchaser;
|
(d) |
If
the Vendor provides the Purchaser with the use of any Purchased Asset
referred to in subsection
13.2(a)
without having obtained the necessary consents and waivers referred
to in
that subsection, and if the use by the Purchaser constitutes a breach
or
violation of any Contract, permit, authorization or approval to which
the
Vendor is a party or by which the Vendor or such Purchased Asset
is bound,
the Vendor shall be responsible for any losses arising as a direct
consequence of such breach or violation under any such Contract,
permit,
authorization or approval.
|
CONSULTRONICS
LIMITED
|
||
By:
|
/s/Andre
Rekai
|
|
Andre
Rekai
President
|
||
By:
|
/s/Brenda
McLennan
|
|
Brenda
McLennan
Chief
Financial Officer
|
||
EXFO
ELECTRO-OPTICAL ENGINEERING INC.
|
||
By:
|
/s/Germain
Lamonde
|
|
Germain
Lamonde
President
and Chief Executive Officer
|
||
WITH
THE INTERVENTION OF/
|
CONSULTRONICS
EUROPE LIMITED
|
|
/s/Andre
Rekai
Andre
Rekai
|
By:
|
/s/Andre
Rekai
|
CONSULTRONICS
DEVELOPMENT KFT
|
||
By:
|
/s/Andre
Rekai
|
|
CONSULTRONICS
INC.
|
||
By:
|
/s/Andre
Rekai
|
1. |
I
have reviewed this annual report on Form 20-F of EXFO Electro-Optical
Engineering Inc. ("EXFO");
|
2. |
Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3. |
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of EXFO
as at,
and for, the periods presented in this report;
|
4. |
EXFO's
other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange
Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for EXFO and have:
|
a. |
Designed
such disclosure controls and procedures or caused such disclosure
controls
and procedures to be designed under our supervision, to ensure that
material information relating to EXFO, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
|
b. |
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision,
to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c. |
Evaluated
the effectiveness of EXFO's disclosure controls and procedures and
presented in this report our conclusions about the effectiveness
of the
disclosure controls and procedures, as at the end of the period covered
by
this report based on such evaluation;
and
|
d. |
Disclosed
in this report any change in EXFO's internal control over financial
reporting that occurred during the period covered by the annual report
that has materially affected, or is reasonably likely to materially
affect, EXFO's internal control over financial
reporting.
|
5. |
EXFO's
other certifying officer and I have disclosed, based on our most
recent
evaluation of internal control over financial reporting, to EXFO's
auditors and the audit committee of EXFO's board of
directors:
|
a. |
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect EXFO's ability to record, process,
summarize and report financial information;
and
|
b. |
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control
over financial reporting.
|
1. |
The
annual report of Form 20-F for the year ended August 31, 2006 of
EXFO
fully complies with the requirements of section 13(a) or 15(d) of
the
Securities Exchange Act of 1934;
and
|
2. |
The
information contained in this annual report fairly presents, in all
material respects, the financial condition and results of operations
of
EXFO.
|
1. |
I
have reviewed this annual report on Form 20-F of EXFO Electro-Optical
Engineering Inc. ("EXFO");
|
2. |
Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3. |
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of EXFO
as at,
and for, the periods presented in this report;
|
4. |
EXFO's
other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange
Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for EXFO and have:
|
a. |
Designed
such disclosure controls and procedures or caused such disclosure
controls
and procedures to be designed under our supervision, to ensure that
material information relating to EXFO, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
|
b. |
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision,
to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c. |
Evaluated
the effectiveness of EXFO's disclosure controls and procedures and
presented in this report our conclusions about the effectiveness
of the
disclosure controls and procedures, as at the end of the period covered
by
this report based on such evaluation;
and
|
d. |
Disclosed
in this report any change in EXFO's internal control over financial
reporting that occurred during the period covered by the annual report
that has materially affected, or is reasonably likely to materially
affect, EXFO's internal control over financial
reporting.
|
5. |
EXFO's
other certifying officer and I have disclosed, based on our most
recent
evaluation of internal control over financial reporting, to EXFO's
auditors and the audit committee of EXFO's board of
directors:
|
a. |
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect EXFO's ability to record, process,
summarize and report financial information;
and
|
b. |
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control
over financial reporting.
|
1. |
The
annual report of Form 20-F for the year ended August 31, 2006 of
EXFO
fully complies with the requirements of section 13(a) or 15(d) of
the
Securities Exchange Act of 1934;
and
|
2. |
The
information contained in this annual report fairly presents, in all
material respects, the financial condition and results of operations
of
EXFO.
|