UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16
Under the Securities Exchange Act of 1934
For the month of July 2021
EXFO Inc.
(Translation of registrant’s name into English)
400 Godin Avenue, Quebec, Quebec, Canada G1M 2K2
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the
Securities Exchange Act of 1934.
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-______.
On July 6, 2021, EXFO Inc. (the “Corporation”), a Canadian corporation, has entered into an amendment to the arrangement agreement, dated June 7, 2021,
pursuant to which 11172239 Canada Inc. (the “Purchaser”), a corporation controlled by Mr. Germain Lamonde, EXFO’s founder and majority shareholder, will acquire all of the issued and outstanding subordinate voting shares of the Corporation not
already controlled, directly or indirectly, by Mr. Germain Lamonde (the “Arrangement Agreement”). The amendment to the Arrangement Agreement (the “Amending Agreement”) on substantially the terms whereby, among other things, (i) certain technical
amendments to the sequencing of the plan of arrangement of the Arrangement Agreement will be made, (ii) the deadline to convene and conduct a meeting of the Corporation’s shareholders was extended, and (iii) the possibility that Mr. Philippe Morin
will become a shareholder of the Purchaser prior to completion of the arrangement pursuant to the Arrangement Agreement was included in the Arrangement Agreement. This report on Form 6-K sets forth the Amending Agreement disclosed on July 7, 2021.
This Arrangement Agreement is hereby incorporated as a document by reference to Form F-3 (Registration Statement under the Securities Act of 1933) declared effective as of July 30, 2001 and to Form F-3 (Registration Statement under the Securities Act
of 1933) declared effective as of March 11, 2002 and to amend certain material information as set forth in these two Form F-3 documents.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: July 7, 2021
AMENDING AGREEMENT
THIS AMENDING AGREEMENT is made as of July 6, 2021,
WHEREAS the Purchaser, the Purchaser Parent and the Corporation entered into an arrangement agreement (the “Arrangement Agreement”) dated June 7, 2021, pursuant to which, among other things, the Purchaser has agreed, subject to the satisfaction or waiver of the closing conditions set out therein, to acquire all of the issued and
outstanding subordinate voting shares of the Corporation (the “Subordinate Voting Shares”) other than those Subordinate Voting Shares owned or beneficially controlled by the Purchaser or any of its
affiliates;
AND WHEREAS the Parties wish to amend the Arrangement Agreement as set forth herein;
NOW THEREFORE, in consideration of the covenants and agreements herein contained and other good and valuable consideration (the receipt
and sufficiency of which are hereby acknowledged), the Parties agree as follows:
“Excluded Shares” means the
Subordinate Voting Shares owned or beneficially controlled by (i) the Purchaser, (ii) the Rolling Shareholder, or (iii) any of their respective affiliates.
“Purchaser Termination Fee”
means 2.75% of the total Consideration to be paid by the Purchaser pursuant to the Arrangement; provided that, such calculation of the total Consideration payable shall exclude: (i) if a definitive agreement is reached between the Purchaser or
any of its affiliates and the Rolling Shareholder prior to the date upon which the Purchaser Termination Fee becomes payable, such that the Rolling Shareholder would have, effective upon Closing, become a shareholder of the Purchaser, the
Excluded Shares; and (ii) if no definitive agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder prior to the date upon which the Purchaser Termination Fee becomes payable, the Subordinate Voting Shares
owned or beneficially controlled by the Purchaser or any of its affiliates.
“Rolling Shareholder” means Mr. Philippe Morin or a holding company to be held directly or indirectly by him that holds Subordinate
Voting Shares.
The Purchaser shall, following receipt of the Final Order and immediately prior to the filing by the Corporation of the Articles of Arrangement with the Director, transfer or
cause to be transferred to the Depositary sufficient funds to be held in escrow (the terms and conditions of such escrow to be satisfactory to the Corporation and the Purchaser, each acting reasonably) in order to satisfy the aggregate
Consideration payable to the SVS Shareholders (other than, (i) to the extent an agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder prior to the filing of the Articles of Arrangement such that the Rolling
Shareholder will, effective upon Closing, become a shareholder of the Purchaser, the holders of the Excluded Shares or (ii) if no such agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder, the Purchaser or
any of its affiliates) as provided for in the Plan of Arrangement.
“Rolling Shareholder” means Mr. Philippe Morin or a holding company to be held directly or indirectly by him that holds Subordinate
Voting Shares.
Pursuant to the Arrangement, each of the following events shall occur and shall be deemed to occur sequentially as set out below without any further
authorization, act or formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Effective Time:
(other than the Dissenting Holders and (i) the Purchaser, (ii) the Rolling Shareholder (to the extent an agreement is reached between the Purchaser or any of its affiliates
and the Rolling Shareholder prior to Closing such that the Rolling Shareholder will, effective upon Closing, become a shareholder of the Purchaser) or (iii) any of their respective affiliates).
(9) Assets and Liabilities.
The Purchaser does not have any operations, assets or liabilities, other than pursuant to this Agreement, the Debt Commitment Letters,
the D&O Support and Voting Agreements and, to the extent any such agreement is entered into and executed, any agreement with the Rolling Shareholder including, as applicable, with respect to a rollover of his or its Subordinate Voting
Shares or other transaction such that he or it becomes a shareholder in the Purchaser.
Assuming the Debt Financing is funded in accordance with the Debt Commitment Letters, the accuracy of the representations and warranties set forth in Schedule C to the
extent necessary to satisfy the condition in Section 6.2(1) and performance by the Corporation of its obligations under this Agreement, the net proceeds of the Debt Financing will in the aggregate be sufficient for the Purchaser to pay the
aggregate Consideration to be paid pursuant to the Arrangement to the SVS Shareholders (other than, (i) to the extent an agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder prior to Closing such that
the Rolling Shareholder will, effective upon Closing, become a shareholder of the Purchaser, the holders of the Excluded Shares or (ii) if no such agreement is reached between the Purchaser or any of its affiliates and the Rolling Shareholder,
the Purchaser or any of its affiliates), all related fees and expenses on the Effective Date and any other amount to be paid by the Purchaser under this Agreement in connection with the consummation of the transaction contemplated by this
Agreement and the Plan of Arrangement.
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IN WITNESS WHEREOF the Parties have executed this Amending Agreement.