UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
(Amendment No. 3)
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE ACT OF 1934
EXFO, INC.
(Name of Subject Company)
EXFO, INC.
11172239 Canada Inc.
G. Lamonde Investissements Financiers Inc.
G. Lamonde Investissements Financiers Inc.
9356-8988 Québec Inc.
Germain Lamonde
Philippe Morin
Germain Lamonde
Philippe Morin
(Name of Person(s) Filing Statement)
Subordinate Voting Shares without par value
(Title of Class of Securities)
302046107
(CUSIP Number of Class of Securities)
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Benoit Ringuette
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11172239 Canada Inc.
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EXFO, Inc.
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G. Lamonde Investissements Financiers Inc.
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400 Godin Avenue
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9356-8988 Québec Inc.
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Québec City, Québec
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400 Godin Avenue
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G1M 2K2, CANADA
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Québec City, Québec
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+1 418 683 0211
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G1M 2K2, CANADA
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+1 418 683 0211
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Germain Lamonde
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Philippe Morin
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400 Godin Avenue
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2500 Alfred-Nobel Boulevard,
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Québec City, Québec
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Saint-Laurent, Québec
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G1M 2K2, CANADA
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H4S 0A9, CANADA
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+1 418 683 0211
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+1 514 856 2222
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(Name, address, and telephone numbers of persons authorized to receive notices and
communications on behalf of the persons filing statement)
communications on behalf of the persons filing statement)
with Copies to:
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Daniel P. Riley, Esq.
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Christopher J. Cummings, Esq.
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Choate, Hall & Stewart LLP
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Paul, Weiss, Rifkind, Wharton & Garrison LLP
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Two International Place
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1285 Avenue of the Americas,
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Boston, MA 02110
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New York, NY 10019
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+1 617 248 4754
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+ 1 212 373 3000
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Peter Villani
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Steve Malas
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Fasken Martineau DuMoulin LLP
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Norton Rose Fulbright Canada LLP
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800 Square Victoria, Suite 3500
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1 Place Ville Marie, Suite 2500
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Montréal, Québec
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Montréal, Québec
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H4Z 1E9, CANADA
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H3B 1R1, CANADA
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+1 514 397 7579
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+1 514 847 4747
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This statement is filed in connection with (check the appropriate box):
| a. |
☐ | The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. |
| b. |
☐ | The filing of a registration statement under the Securities Act of 1933. |
| c. |
☐ | A tender offer. |
| d. |
☒ | None of the above. |
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☐
Check the following box if the filing is a final amendment reporting the results of the transaction: ☒
CALCULATION OF FILING FEE
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TRANSACTION VALUATION*
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AMOUNT OF FILING FEE**
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$128,585,646.00
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$14,028.69
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| * |
Estimated solely for the purpose of calculating the amount of the filing fee. This amount is based upon the total of 21,430,941 subordinate voting shares at a price of $6.00 per share as noted in the Transaction Statement filed on
July 16, 2021.
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| ** |
Determined in accordance with Rule 0-11 under the Exchange Act at a rate equal to $109.10 per $1,000,000 of transaction value.
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☒
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Check box if any part of the fee is offset as provided by § 240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
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Amount Previously Paid:
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$14,028.69
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Form or Registration No.:
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Schedule 13E-3
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Filing Party:
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EXFO, INC.
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Date Filed:
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7/16/2021
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This Amendment No. 3 (“Amendment No. 3) amends and supplements the Rule 13e-3 Transaction Statement on Schedule 13E-3, together with the exhibits attached hereto (the “Transaction Statement”),
filed with the Securities Exchange Commission (the “SEC”) on July 16, 2021 jointly by EXFO, Inc., a corporation existing under the laws of Canada (“EXFO”), and 11172239 Canada Inc. (“Purchaser”), G. Lamonde Investissements Financiers Inc.,
9356-8988 Québec Inc., Germain Lamonde, and Philippe Morin (each, a “Filing Person,” and collectively, the “Filing Persons”), as amended by Amendment No. 1, dated August 12, 2021 and Amendment No. 2, dated August 27, 2021.
The Transaction Statement relates to the plan of arrangement (the “Plan of Arrangement”) contemplated by an arrangement agreement among EXFO, Purchaser and G. Lamonde
Investissements Financiers Inc., dated as of June 7, 2021 (as amended by the Amending Agreement dated July 6, 2021, the Second Amending Agreement dated July 12, 2021, and the Third Amending Agreement dated August 9, 2021 (the “Arrangement
Agreements”)) pursuant to which Purchaser acquired all of the outstanding subordinate voting shares of EXFO (the “Subordinate Voting Shares”) not already owned, directly or indirectly, by G. Lamonde Investissements Financiers Inc., 9356-8988
Québec Inc., Germain Lamonde, and Philippe Morin for the per Subordinate Voting Share consideration of $6.25 and EXFO became a wholly-owned subsidiary of Purchaser. A copy of the Plan of Arrangement is included as Appendix B to the Management
Proxy Circular, which is attached as Exhibit (a)(2)(i) to the Transaction Statement (the “Circular”).
A special meeting of the Company’s shareholders was held on August 13, 2021 (the “Meeting”) to approve a special resolution approving the Plan of Arrangement in the form attached as Appendix A to
the Circular (the “Arrangement Resolution”). The Circular was provided to EXFO’s shareholders pursuant to applicable Canadian law. At the Meeting, the Arrangement Resolution was approved by 99.65% of the votes cast by shareholders, voting together
as a single class, as well as 90.95% of the votes cast by holders of subordinate voting shares, excluding votes attached to the subordinate voting shares held, directly or indirectly, by Germain Lamonde and Philippe Morin. The Arrangement was
completed on August 27, 2021.
As a result of the Arrangement, the Subordinate Voting Shares will no longer be listed on the Toronto Stock Exchange and the NASDAQ. The NASDAQ has filed an application
on Form 25 with the U.S. Securities and Exchange Commission (the “SEC”) to remove the Subordinate Voting Shares from listing on the NASDAQ and withdraw registration of the Subordinate Voting Shares under the U.S. Securities Exchange Act of 1934,
as amended (the “Exchange Act”). The deregistration will become effective 90 days after the filing of Form 25 or such shorter period as may be determined by the SEC. In addition, the Purchaser intends to cause EXFO to submit an application to
cease to be a reporting issuer under applicable Canadian securities law, and to cause EXFO to file a certification and notice on Form 15 with the SEC to suspend its reporting obligations under U.S. securities laws, and to otherwise terminate
EXFO’s public reporting requirements. EXFO’s reporting obligations under the Exchange Act will be suspended immediately as of the filing date of the Form 15 and will terminate once the deregistration becomes effective.
Capitalized terms used but not defined in this Amendment No. 3 shall have the meanings given to them in the Transaction Statement.
Item 16 is hereby amended and supplemented by the addition of the following exhibits thereto:
| Exhibit No. | Description |
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Press Release, dated August 27, 2021
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SIGNATURES
After due inquiry and to the best of our knowledge and belief, the undersigned hereby certify that the information set forth in this statement is true, complete and correct.
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EXFO, Inc.
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By:
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/s/ Benoît Ringuette
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Name: Benoît Ringuette
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Title: General Counsel and Corporate Secretary
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Dated: September 3, 2021
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11172239 CANADA INC.
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By:
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/s/ Germain Lamonde
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Name: Germain Lamonde
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Title: President
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Dated: September 3, 2021
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G. LAMONDE INVESTISSEMENTS FINANCIERS INC.
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By:
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/s/ Germain Lamonde
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Name: Germain Lamonde
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Title: President
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Dated: September 3, 2021
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9356-8988 QUÉBEC INC.
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By:
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/s/ Germain Lamonde
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Name: Germain Lamonde
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Title: President
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Dated: September 3, 2021
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GERMAIN LAMONDE
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/s/ Germain Lamonde
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Dated: September 3, 2021
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PHILIPPE MORIN
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/s/ Philippe Morin
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Dated: September 3, 2021
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Exhibit Index
| Exhibit No. | Description |
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(a)(2)(i) †
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Management Information Circular of EXFO, dated July 2, 2021
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(a)(2)(ii) †
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Form of Proxy
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(a)(2)(iii) †
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Letter of Transmittal
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(a)(2)(iv) †
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Letter to Shareholders of the Company (incorporated herein by reference to the Circular)
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(a)(2)(v) †
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Notice of Special Meeting of Shareholders (incorporated herein by reference to the Circular)
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(a)(2)(vi) †
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Press Release, dated June 7, 2021 (incorporated by reference to EXFO’s report on Form 6-K submitted to the SEC on June 7, 2021)
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(a)(2)(vii) †
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Press Release, dated June 17, 2021
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(a)(2)(viii) †
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Press Release, dated July 22, 2021
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(a)(2)(ix) †
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Press Release, dated August 3, 2021
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(a)(2)(x) †
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Press Release, dated August 9, 2021
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(a)(2)(xi) †
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Press Release, dated August 12, 2021
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(a)(2)(xii) †
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Press Release with respect to the shareholder approval at the Meeting, dated August 13, 2021
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(a)(2)(xiii) †
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Press Release with respect to reporting of the voting results at the Meeting, dated August 13, 2021
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(a)(2)(xiv) †
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Press Release, dated August 20, 2021
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(a)(2)(xv)
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Press Release, dated August 27, 2021
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(b)(i) * †
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Commitment Letter, dated June 4, 2021, by and between National Bank of Canada and 11172239 Canada Inc.
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(b)(ii) * †
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Translation of the Commitment Letter, dated June 4, 2021, by and between Investissement Québec and 11172239 Canada Inc.
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(b)(iii) †
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English Translation of the New Letter Agreement Between IQ and Purchaser
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(c)(ii) †
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Preliminary Report to the Special Committee, dated May 6, 2021
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(c)(iii) †
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Updated Preliminary Report to the Special Committee, dated June 1, 2021
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(c)(iv) †
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Final Report to the Special Committee, dated June 6, 2021
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(d)(1) †
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Arrangement Agreement, dated June 7, 2021, between EXFO, Inc., 11172239 Canada Inc. and G. Lamonde Investissements Financiers Inc.
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(d)(2) †
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Amending Agreement, dated July 6, 2021, between EXFO, Inc., 11172239 Canada Inc. and G. Lamonde Investissements Financiers Inc. (incorporated by reference to EXFO’s report on Form 6-K
submitted to the SEC on July 7, 2021)
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(d)(3) †
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Second Amending Agreement, dated July 12, 2021, between EXFO, Inc., 11172239 Canada Inc. and G. Lamonde Investissements Financiers Inc. (incorporated by reference to EXFO’s report on
Form 6-K submitted to the SEC on July 12, 2021)
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(d)(4) †
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Plan of Arrangement under the Canada Business Corporations Act (incorporated herein by reference to Appendix B of the Circular)
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(d)(5) †
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Third Amending Agreement, dated August 9, 2021, between EXFO, Inc., 11172239 Canada Inc. and G. Lamonde Investissements Financiers Inc.
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(e)(i) †
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Support and Voting Agreement, dated June 7, 2021, between Germain Lamonde and EXFO, Inc.
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(e)(ii) †
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Support and Voting Agreement, dated June 7, 2021, between Philippe Morin and 11172239 Canada Inc.
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(e)(iii) †
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Support and Voting Agreement, dated June 7, 2021, between 9356-8988 Québec Inc. and EXFO, Inc.
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(e)(iv) †
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Support and Voting Agreement, dated June 7, 2021, between G. Lamonde Investissements Financiers Inc. and EXFO, Inc.
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(e)(v) †
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Support and Voting Agreement, dated June 7, 2021, between François Côté and 11172239 Canada Inc.
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(e)(vi) †
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Support and Voting Agreement, dated June 7, 2021, between Claude Séguin and 11172239 Canada Inc.
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(e)(vii) †
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Support and Voting Agreement, dated June 7, 2021, between Benoît Ringuette and 11172239 Canada Inc.
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(e)(viii) †
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Support and Voting Agreement, dated June 7, 2021, between Pierre Plamondon and 11172239 Canada Inc. (incorporated by reference to EXFO’s report on Form 6-K submitted to the SEC on June
10, 2021)
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(e)(xi) †
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Trust Agreement, dated July 6, 2000, between Germain Lamonde, GEXFO Investissements Technologiques Inc., G. Lamonde Investissements Financiers Inc., Fiducie Germain Lamonde, EXFO
Electro-Optical Engineering Inc., and CIBC Mellon Trust Company
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(e)(xii) †
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Support and Voting Agreement, dated August 9, 2021, between Westerly Capital Management, LLC and 11172239 Canada Inc.
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(e)(xiii) †
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Support and Voting Agreement, dated August 9, 2021, by and among Chris Galvin, 11172239 Canada Inc. and EXFO, Inc.
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(e)(xiv) †
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Support and Voting Agreement, dated August 9, 2021, by and among EHP Funds Inc., 11172239 Canada Inc. and EXFO, Inc.
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(f) †
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Section 190 of the Canada Business Corporations Act (incorporated herein by reference to Appendix F of the Circular)
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(g) †
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Voting Instruction Form, dated July 10, 2021, provided in connection with the special meeting of shareholders of EXFO Inc.
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(h) †
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Certain Canadian Federal Income Tax Consideration (incorporated herein by reference to Appendix B of the Circular)
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† Previously filed as an exhibit to the Transaction Statement.
* Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment.