SHAREHOLDER AGREEMENT
AMONG THE SHAREHOLDERS OF
AVENSYS LABORATORIES INC.
ET AL.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
April 13, 2006
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TABLE OF CONTENTS
1. INTERPRETATION...........................................................3
1.1 DEFINITIONS........................................................3
1.2 HEADINGS...........................................................7
1.3 EXTENDED MEANINGS..................................................7
1.1 STATUTORY REFERENCES...............................................7
1.4 ACCOUNTING PRINCIPLES..............................................7
1.5 CURRENCY...........................................................7
1.6 UNANIMOUS SHAREHOLDER AGREEMENT....................................8
1.7 SCHEDULES..........................................................8
2. TERMINATION OF ANY PRIOR AGREEMENT.......................................8
3. MANAGEMENT...............................................................8
3.1 CARRYING OUT OF THE AGREEMENT......................................8
3.2 DIRECTORS..........................................................8
3.3 MEETINGS OF DIRECTORS..............................................9
3.4 APPROVAL OF MATTERS................................................9
3.5 REPORTING REQUIREMENTS............................................11
4. DEALING WITH SHARES.....................................................12
4.1 REPRESENTATIONS AND WARRANTIES BY SHAREHOLDERS....................12
4.2 GENERAL PROHIBITION ON TRANSFER...................................13
4.3 TRANSFERS TO A CONTROLLED ENTITY..................................13
4.4 TRANSFER TO AFFILIATES............................................14
4.5 TRANSFERS BY A LIMITED PARTNERSHIP TO ITS LIMITED PARTNERS........14
4.6 TRANSFER BY CELTIC................................................15
4.7 RIGHT OF FIRST REFUSAL OF AVENSYS.................................15
4.8 RIGHT OF FIRST REFUSAL OF THE PREFERRED HOLDERS...................17
4.9 NO REGISTRATION OF TRANSFER UNLESS TRANSFEREE IS BOUND............19
4.10 SPECIFIC PROHIBITIONS ON TRANSFER.................................20
4.11 NEW SHAREHOLDERS..................................................20
4.12 ENDORSEMENT ON CERTIFICATES.......................................21
4.13 PUT OPTION........................................................21
5. GENERAL.................................................................22
5.1 NON-SOLICITATION..................................................22
5.2 CONFIDENTIALITY...................................................22
5.3 FURTHER ASSURANCES................................................23
5.4 BENEFIT OF THE AGREEMENT..........................................23
5.5 ENTIRE AGREEMENT..................................................23
5.6 AMENDMENTS AND WAIVERS............................................23
5.7 ASSIGNMENT........................................................23
5.8 TERMINATION.......................................................23
5.9 SEVERABILITY......................................................24
5.10 NOTICES...........................................................24
5.11 GOVERNING LAW.....................................................28
5.12 COUNTERPARTS......................................................28
5.13 FACSIMILES........................................................28
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SHAREHOLDER AGREEMENT made as of April 13, 2006.
BETWEEN: AVENSYS INC., ("Avensys") a company incorporated under Part 1A
of the Companies Act (Quebec), having its head office at ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, herein acting and
represented by its duly authorized representative as he so
declares,
AND: INVESTISSEMENT TECHNOLOGIE (3599) INC., ("3599") a company
incorporated under Part 1A of the Companies Act (Quebec)
having its head office at 600, de la Gauchetiere West, Suite
1500, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, herein acting and represented
by its duly authorized representative as he so declares,
AND: ONTARIO TEACHERS' PENSION PLAN, ("OTPP") a corporation
governed by the laws of the Province of Ontario, having its
head office at ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
herein acting and represented by its duly authorized
representative as he so declares,
AND: CELTIC HOUSE VENTURE PARTNERS FUND IIA LP, ("Celtic") a
limited partnership formed under the laws of the Province of
Ontario having its head office at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, represented by Celtic House
General Partner (Fund IIA) Inc., its general partner, herein
acting and represented by its duly authorized representative
as he so declares,
AND: GTI V LIMITED PARTNERSHIP, ("GTI V") a limited partnership
formed under the laws of the Province of Quebec having its
head office at ▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, represented by its general partner GTI V Inc.,
a corporation incorporated under the laws of the Province of
Quebec, herein acting and represented by its duly authorized
representative as he so declares,
AND: GTI V (NR) LIMITED PARTNERSHIP, ("GTI V (NR)") a limited
partnership formed under the laws of the Province of Quebec
having its head office at ▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, represented by its general partner
GTI V (NR) Inc., a corporation incorporated under the laws of
the Province of Quebec, herein acting and represented by its
duly authorized representative as he so declares,
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AND: BAY TECH VENTURE CAPITAL GMBH & CO. KG., ("Bay Tech") a
limited partnership incorporated under the laws of Germany
having its head office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, herein acting and represented by its duly authorized
representative as he so declares, (3599, OTPP, Celtic, GTI V,
GTI V (NR) and Bay Tech collectively referred as the "ITF
Group" and individually as a "Preferred Holder")
AND: MANARIS CORPORATION, ("Manaris") a corporation incorporated
under the laws of the state of Nevada, having a place of
business at ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, herein acting and represented by its duly
authorized representative as he so declares,
AND INTERVENING: AVENSYS LABORATORIES INC., (the "Company" or "Avensys Lab") a
company incorporated under Part 1A of the Companies Act
(Quebec), having its head office at ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, herein acting and represented
by its duly authorized representative as he so declares,
WHEREAS ITF Optical Technologies Inc. ("ITF"), Avensys, Avensys Lab and Manaris
have entered into an asset purchase agreement dated April 4, 2006, for the sale
by ITF to Avensys of certain assets associated with ITF's all-fiber photonics
solutions manufacturing business (the "Asset Purchase Agreement");
AND WHEREAS pursuant to the Asset Purchase Agreement, the purchase price payable
consists in part of Shares of Avensys Lab to be issued, at the direction of ITF,
to each Preferred Holder in the proportions set out in Section 2.4.3 of the
Asset Purchase Agreement;
AND WHEREAS it is a condition of closing of the sale of assets under the Asset
Purchase Agreement that the Shareholders and the Company enter into this
Agreement;
AND WHEREAS the authorized capital of the Company consists of an unlimited
number of common shares and of Class A, Class B, Class C, Class D and Class E
Preferred Shares of which 1,000,000 common shares, 500,000 Class A Preferred
Shares, and 2,000,000 Class E Preferred Shares are issued and outstanding;
AND WHEREAS the Shares of the Company are owned as follows:
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Shareholders Common Shares Class A Preferred Shares Class E Preferred Shares
------------ ------------- ------------------------ ------------------------
Avensys 420,000 500,000 --
3599 243,600 -- 840,000
OTPP 127,600 -- 440,000
Celtic 81,200 -- 280,000
GTI V 41,296 -- 142,400
GTI V (NR) 16,704 -- 57,600
Bay Tech 69,600 -- 240,000
TOTAL 1,000,000 500,000 2,000,000
AND WHEREAS the Shareholders and the Company have agreed to enter into this
Agreement as being in their respective best interests and for the purpose of
providing for the operation of the Company;
NOW THEREFORE, in consideration of the premises and the covenants and agreements
herein contained, the parties agree as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless something in the subject matter or
context is inconsistent therewith:
1.1.1 "Accountant" means the auditor or accountant, as the
case may be, of the Company appointed from time to
time.
1.1.2 "CBCA" means the Canada Business Corporations Act.
1.1.3 "Affiliate" means an affiliate within the meaning of
the CBCA.
1.1.4 "Agreement" means this agreement, including its
recitals and schedules, as amended from time to time.
1.1.5 "Business Day" means a day other than a Saturday,
Sunday or statutory holiday in Quebec.
1.1.6 "Competitor" means any Person which conducts a
business anywhere in the world which is similar to or
substantially similar to the business presently
conducted by the Company, that is, research in
connection with and development, manufacture,
marketing and sale of photonic components based on an
all-fiber technology platform (defined as using the
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fiber as the constituent medium) for
telecommunications, fiber lasers or optical sensors
or which competes with the business carried on by the
Company or any of its Subsidiaries, during the term
of this Agreement.
1.1.7 "Control" means:
1.1.7.1 when applied to the relationship between a
Person and a company, the ownership by such
Person at the relevant time of shares of
such company carrying more than the greater
of (i) 50% of the voting rights ordinarily
exercisable at meetings of shareholders of
such company and (ii) the percentage of
voting rights ordinarily exercisable at
meetings of shareholders of such company
that are sufficient to elect a majority of
the directors of such company; and
1.1.7.2 when applied to the relationship between a
Person and a partnership or joint venture,
the beneficial ownership by such Person at
the relevant time of more than 50% of the
ownership interests of the partnership or
joint venture in circumstances where it can
reasonably be expected that such Person
directs the affairs of the partnership or
joint venture;
and the words "Controlled by", "Controlling" and
similar words have corresponding meanings; provided
that a Person (the "first-mentioned Person") who
Controls a company, partnership or joint venture (the
"second-mentioned Person") shall be deemed to Control
a company, partnership or joint venture which is
Controlled by the second-mentioned Person and so on;
and the words "Control Directly", "Directly Control"
and similar words mean Control otherwise than by
reason of the application of the deeming provision
and the words "Control Indirectly" and similar words
mean Control by reason of the application of this
deeming provision.
1.1.8 "Election Notice" has the meaning set out in Section
4.13.1.
1.1.9 "Income Tax Act" means the Income Tax Act (Canada).
1.1.10 "Intellectual Property" means all foreign and
domestic intellectual property rights and the subject
matter thereof, including or arising from, (i)
Patents; (ii) Technical Information; (iii) trademarks
and trademark rights, trade names, service marks,
brand names, certification marks, and other
indications of origin, whether registered or not, and
the goodwill associated therewith; (iv) copyrights,
whether registered or not, including without
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limitation, computer programs and computer software
and all source and object code, algorithms,
architecture, structure, display screens, layouts and
development tools related thereto, promotional
materials and databases; (v) industrial designs,
whether registered or not; (vi) trade secrets and
other confidential or non-public information,
including inventions, designs, samples, schematics,
customer lists, supplier and dealer lists and
marketing research; (vii) internet protocol addresses
and domain names, whether or not used or currently in
service; (viii) any similar intellectual or
industrial property or proprietary rights; (ix)
registrations of, and applications to register or for
any of the foregoing, and any renewal, extension,
reissue, division, continuation or modification
thereof; (x) all documentation and media
constituting, describing or relating to the
foregoing, including without limitation manuals,
memoranda and records and the right to register any
of the foregoing; and "Intellectual Property Right"
shall mean any one of them.
1.1.11 "ITF Group" has the meaning set out in the preamble.
1.1.12 "Limited Partner" has the meaning set out in Section
4.5.
1.1.13 "Limited Partnership" has the meaning set out in
Section 4.5.
1.1.14 "Notice" has the meaning set out in Sections 4.7.1
and 4.8.1.
1.1.15 "Offered Shares" has the meaning set out in Sections
4.7.1 and 4.8.1.
1.1.16 "Offerees" has the meaning set out in Section 4.8.1.
1.1.17 "Offeror" has the respective meanings set out in
Sections 4.7.1 and 4.8.1.
1.1.18 "Patents" means all registered patents and pending
applications for patents throughout the world, owned
by the Company.
1.1.19 "Permitted Window" has the meaning set out in Section
4.13.1..
1.1.20 "Person" means an individual, partnership, limited
partnership, joint venture, trustee, trust,
corporation, company, unlimited liability company,
unincorporated organization or other entity or a
government, state or agency or political subdivision
thereof, and pronouns have a similarly extended
meaning.
1.1.21 "Put Option" has the meaning set out in Section
4.13.1.
1.1.22 "Preferred Holder" has the meaning set out in the
preamble.
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1.1.23 "Rejected Shares" has the meaning set out in Section
4.8.3.
1.1.24 "Shareholders" means Avensys, 3599, OTPP, Celtic, GTI
V, GTI V (NR) and Bay Tech, together with such other
Persons as may become parties to this Agreement,
collectively and "Shareholder" means any one of such
Persons individually.
1.1.25 "Shares" means the shares of the Company that the
Shareholders own at the date hereof or hereafter.
1.1.26 "Subsidiary" means any legal entity Controlled by the
Company.
1.1.27 "Super Majority" means:
(a) a resolution passed by not less than 75% of
the votes cast by the Preferred Holders
present in person or represented by proxy
during a meeting called for the passing of
such resolution pursuant to this Agreement;
or
(b) a written instrument signed by the holders
of not less than 75% of the Shares owned by
the Preferred Holders without the necessity
of any meeting;
provided, however, that for greater clarity, such
percentage of Shares shall be calculated on the basis
of the Shares owned by the Preferred Holders only
without regard to or consideration of any other
shares of the Company that may at any time and from
time to time be issued and outstanding.
1.1.28 "Technical Information" means work in progress, data,
information, know-how, descriptions of unpatented
technology, techniques, systems, product roadmaps,
layouts and development tools related thereto, bills
of material, experience and other technical
information used by the Company, including
proprietary processes, specifications, formulae,
algorithms, models, user interfaces, concepts, ideas,
techniques, methods, source codes, object codes and
methodologies.
1.1.29 "Third Party Offer" has the meaning set out in
Sections 4.7.1 and 4.8.1.
1.1.30 "Transfer" means any sale, exchange, assignment,
gift, bequest, disposition, mortgage, hypothec,
charge, pledge, encumbrance, grant of security
interest, short sale, grant of any option, hedging or
similar transaction with the same economic effect as
a sale, monetization, securitization,
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collateralization, delegation or other arrangement of
any nature whatsoever by which possession, legal
title, beneficial ownership, voting rights or other
attributes of ownership passes or may pass from one
Person to another, or to the same Person in a
different capacity, whether or not voluntary and
whether or not for value, and any agreement to effect
any of the foregoing and "Transferred",
"Transferring" and similar words have corresponding
meanings.
1.2 Headings
The division of this Agreement into Articles and Sections and
the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation
of this Agreement. The terms "this Agreement", "hereof",
"hereunder" and similar expressions refer to this Agreement
and not to any particular Article, Section or other portion
hereof and include any amendment hereto. Unless something in
the subject matter or context is inconsistent therewith,
references herein to Articles or Sections are to Articles or
Sections of this Agreement.
1.3 Extended Meanings
In this Agreement, words importing the singular number only
shall include the plural and vice versa, words importing the
masculine gender shall include the feminine and neuter genders
and vice versa and words importing persons shall include
individuals, partnerships, limited liability companies,
associations, trusts, unincorporated organizations and
companies.
1.1 Statutory References
In this Agreement, unless something in the subject matter or
context is inconsistent therewith or unless otherwise herein
provided, a reference to any statute is to that statute as now
enacted or as the same may from time to time be amended,
re-enacted or replaced and includes any regulations made
thereunder.
1.4 Accounting Principles
Wherever in this Agreement reference is made to a calculation
to be made in accordance with generally accepted accounting
principles ("GAAP"), such reference shall be deemed to be to
the generally accepted accounting principles in Canada from
time to time approved by the Canadian Institute of Chartered
Accountants, or any successor institute, applicable as at the
date on which such calculation is made or required to be made
in accordance with generally accepted accounting principles
and applied in a manner consistent with prior periods of the
Company.
1.5 Currency
All references to currency herein are to lawful money of
Canada.
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1.6 Unanimous Shareholder Agreement
To the extent that this Agreement specifies that any matter
must be dealt with or approved by, or requires action by, the
Shareholders or otherwise has the effect of restricting in
whole or in part the powers of the directors to manage or to
supervise the management of the business and affairs of the
Company, the powers of the directors of the Company to manage
and to supervise the management of the business and affairs of
the Company with respect to such matters are correspondingly
restricted.
1.7 Schedules
The following are the Schedules to this Agreement:
Schedule 4.11 - Intervention Form
2. TERMINATION OF ANY PRIOR AGREEMENT
Avensys hereby represents and warrants to the Preferred Holders that
all agreements regarding the organization and affairs of the Company
and/or the sale of any Shares of the Company under certain
circumstances, whether written or oral, including the Convention
unanime d'actionnaires dated June 1, 2005, have been validly
terminated.
3. MANAGEMENT
3.1 Carrying out of the Agreement
3.1.1 The Shareholders will at all times carry out and
exercise their voting rights to cause the Company to
carry out the provisions of this Agreement.
3.1.2 The Shareholders shall each vote their Shares and act
in all other respects and shall cause their
respective nominees to the Board, to the extent
permitted by law, to vote and act in connection with
the corporate proceedings of the Corporation so as to
ensure that the provisions of this Agreement are
complied with.
3.1.3 The Company will carry out and be bound by the
provisions of this Agreement to the full extent that
it has the capacity and power at law to do so.
3.2 Directors
3.2.1 The board of directors of the Company will consist of
three directors. Two nominees designated by Super
Majority of the ITF Group and one nominee designated
by Avensys will be the directors of the Company.
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3.2.2 Each of the ITF Group and Avensys shall be entitled
at any time to remove any director nominated by it by
written notice to such director, to the Company and
to the other Shareholders. Any vacancy occurring on
the board by reason of death, disqualification,
inability to act, resignation or removal of any
director shall only be filled by nomination of the
ITF Group or Avensys, as the case may be, if its
nominee has died, become disqualified, is unable to
act, has resigned or has been removed. Forthwith upon
such nomination, the Shareholders shall elect the
director so nominated, provided he is otherwise
qualified under the CBCA and this Agreement, so as to
always maintain a board consisting of the nominees of
the ITF Group and Avensys as contemplated in Section
3.2.1 above.
3.2.3 The Company shall purchase and maintain directors'
liability insurance with coverage terms, conditions
and limits customary for similar companies, but in no
event less than $3,000,000.
3.3 Meetings of Directors
3.3.1 A minimum of four (4) meetings of the board of
directors shall be held per fiscal year, with at
least one meeting held every fiscal quarter of the
Company.
3.3.2 A quorum for any and all meetings of the board of
directors shall consist of two directors.
3.4 Approval of Matters
3.4.1 The Company may not take any of the following actions
(i) without the written approval of the Shareholders
holding 66 2/3 % or more of the voting rights
attached to the issued and outstanding Shares and
(ii) without having obtained all consents required by
law or by the articles or by-laws of the Company:
3.4.1.1 any change in the articles or by-laws of the
Company;
3.4.1.2 any change in the authorized or issued
capital of the Company;
3.4.1.3 the entering into of any agreement or the
making of any offer or the granting of any
right capable of becoming an agreement to
allot or issue any shares or other
securities of the Company;
3.4.1.4 any action that may lead to or result in a
material change in the nature of the
business of the Company, including the
change in location of the head office or one
of the principal places of business of the
Company;
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3.4.1.5 the taking of any steps to wind-up or
terminate the corporate existence of the
Company;
3.4.1.6 the sale, lease, exchange or disposition of
the entire undertaking or assets of the
Company or any substantial part thereof;
3.4.1.7 the sale, lease, exchange or disposition of
any assets of the Company to, or the dealing
in any other way with, any person not at
arm's length (as defined in the Income Tax
Act) with the Company unless any transaction
relating thereto is on terms as least as
favourable to the Company as the terms it
would obtain if such transaction were with a
person dealing at arm's length with the
Company;
3.4.1.8 the sale, exchange, disposition or license
of any Intellectual Property belonging to
the Company outside of the ordinary course
of business;
3.4.1.9 the making of loans or advances to, or the
giving of security for, or the guaranteeing
of the debts of, any Person directly or
indirectly;
3.4.1.10 any change in the number of directors;
3.4.1.11 the appointment or change of officers and
management employees of the Company;
3.4.1.12 the declaration or payment of any dividend;
3.4.1.13 the taking, holding, subscribing for or
agreeing to purchase or acquire shares in
the capital of any body corporate;
3.4.1.14 the entering into of an amalgamation, merger
or consolidation with any other body
corporate, or the creation of a Subsidiary;
3.4.1.15 the change in the financial year end of the
Company;
3.4.1.16 any change to the License Agreement to be
entered into concurrently herewith between
Avensys and the Company; and
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3.4.1.17 any consent to the specific prohibitions on
the Transfers of Shares set out in Section
4.10.
3.4.2 In order to obtain the consents required under
Section 3.4.1, the Company must send to each of the
Shareholders a notice given in accordance with
Section 5.10 detailing the action, decision,
resolution or by-law requiring their consent. The
Shareholders shall exercise their right provided for
in 3.4.1 by notifying the Company of their decision
as soon as possible following the receipt of the
notice. If any Shareholder fails to notify the
Company of its decision within the 15 Business Day
period following the receipt of such notice from the
Company, such Shareholder shall be deemed to have
approved such action, decision, resolution or by-law.
3.4.3 The Company shall provide to each Shareholder and
each director, promptly following the receipt
thereof, a copy of any notice, letter or other
document informing the Company of the institution or
contestation of any legal proceeding involving the
Company other than actions on account and actions
involving claims of less than $25,000 which are not
related to Intellectual Property.
3.4.4 Upon the creation of a Subsidiary, this Section 3
shall apply mutatis mutandis to the conduct of the
affairs and business of such Subsidiary.
3.4.5 In the event that either Avensys or Manaris, as the
case may be, is in default in fulfilling its
obligations under Section 4.13, then Sections 3.4.1
and 3.4.2 shall be deemed automatically terminated in
their entirety upon written notice by any Preferred
Holder to the Company advising the Company of such
default.
3.5 Reporting Requirements
The Company shall provide to each of the Shareholders (a)
unaudited unconsolidated quarterly financial statements for
the Company prepared in accordance with GAAP, together with a
Management Discussion and Analysis thereto, within 30 days
after the end of each quarter, and (b) audited unconsolidated
annual financial statements of the Company prepared in
accordance with GAAP, together with a Management Discussion
and Analysis thereto, within 90 days after the end of each
fiscal year end.
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4. DEALING WITH SHARES
4.1 Representations and Warranties by Shareholders
Each Shareholder represents and warrants:
4.1.1 that such Shareholder exclusively owns the number of
Shares which are expressed to be owned by him/it in
the preamble to this Agreement and that such Shares
are not subject to any hypothec, mortgage, lien,
charge, pledge, encumbrance, security interest or
adverse claim and that, except in connection with any
Transfer permitted pursuant to Sections 4.3 through
4.11 (inclusively), no Person has any rights to
become a holder or possessor of any of such Shares or
of the certificates representing the same;
4.1.2 if such Shareholder is an individual, that he has the
capacity to enter into and give full effect to this
Agreement;
4.1.3 if such Shareholder is a corporation or company, that
it is duly incorporated and validly existing under
the laws of its jurisdiction of incorporation and
that it has the corporate power and capacity to own
its assets and to enter into and perform its
obligations under this Agreement;
4.1.4 if such Shareholder is a trust, partnership or joint
venture, that it is duly constituted under the laws
which govern it and that it has the power to own its
assets and to enter into and perform its obligations
under this Agreement;
4.1.5 that this Agreement has been duly authorized by it,
duly executed and delivered by him or it, as the case
may be, and constitutes a valid and binding
obligation enforceable in accordance with its terms,
subject to the usual exceptions as to bankruptcy and
the availability of equitable remedies;
4.1.6 that the execution, delivery and performance of this
Agreement does not and will not contravene the
provisions of its articles, by-laws, constating
documents or other organizational documents or the
documents by which it was created or established or
the provisions of any indenture, agreement or other
instrument to which he or it is a party or by which
he or it may be bound and the violation of which
would invalidate the execution, delivery and
performance of this Agreement by such Shareholder;
and
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4.1.7 that all of the foregoing representations and
warranties will continue to be true and correct
during the term of this Agreement.
4.2 General Prohibition on Transfer
Except as expressly provided in this Article 4, no Shareholder
may Transfer the Shares that such Shareholder owns, or the
Shareholder's rights under this Agreement, unless prior to
doing so the other Shareholders consent in writing. The
provisions of this Section 4.2 will apply to any Transfer of
Shares even if the Shareholder is Transferring such Shares
together with or in conjunction with other assets.
4.3 Transfers to a Controlled Entity
Notwithstanding any provision of this Agreement other than
Section 4.10, each Shareholder may at any time and from time
to time Transfer all or any of its Shares to a Controlled
Entity thereof provided that:
4.3.1 the Controlled Entity and the Shareholder shall have
executed and delivered an instrument, in form and
substance satisfactory to legal counsel to the
Company, which contains a representation and warranty
by the Controlled Entity and the Shareholder that (i)
the Controlled Entity is Controlled by the
Shareholder in question and sets out particular as to
the manner in which the Controlled Entity is a
Controlled Entity of the Shareholder in question, and
(ii) no Shareholder of the Controlled Entity is a
Competitor;
4.3.2 the Controlled Entity shall have executed and
delivered an instrument, in form and substance
satisfactory to legal counsel to the Company, in
which the Controlled Entity makes the representations
and warranties made by the Shareholders in this
Agreement;
4.3.3 the Controlled Entity shall have executed an
intervention in the form of Schedule 4.11;
4.3.4 the Shareholder Transferring its Shares to a
Controlled Entity shall have executed and delivered
an instrument, in form and substance satisfactory to
legal counsel to the Company, in which the
Shareholder acknowledges and agrees to be bound,
solidarily with the Controlled Entity, by all the
representations, warranties and covenants of the
Controlled Entity hereunder, and both the Shareholder
and the Controlled Entity acknowledge and agree that
they shall, for the purposes of this Agreement, be
considered as one Shareholder; and
4.3.5 the Shareholder Transferring its Shares to a
Controlled Entity agrees to maintain Direct Control
at all times during the term of this Agreement of the
Controlled Entity, and not to permit the issuance of
13
any shares in the capital stock of the Controlled
Entity nor permit the Transfer of any such shares to
a third party, without the consent of the other
Shareholders, failing which the initial Transfer by
the Shareholder of its Shares to a Controlled Entity
shall be deemed to be and shall be in violation of
Section 4.3.1.
4.4 Transfer to Affiliates
Notwithstanding any provision of this Agreement other than
Section 4.10, each Shareholder may, at any time and from time
to time, Transfer all or any of the Shares held by it to any
of its Affiliates. A Shareholder must first notify the Company
in writing of such Transfer including the proposed transferee
and the Company reserves the right to prohibit any such
Transfer to an Affiliate who is a Competitor of the Company
and provided that such transferee shall have executed and
delivered an instrument, in form and substance satisfactory to
legal counsel to the Company, in which such transferee makes
the representations and warranties made by the Shareholders in
this Agreement and agrees to execute an intervention in the
form of Schedule 4.11, it being understood and agreed that (i)
such transferee, if same had acquired all of the Shareholder's
Shares, shall benefit from all the rights of such Shareholder
hereunder, as if such transferee had executed this Agreement
in lieu and place of such Shareholder and (ii) that such
Shareholder shall cease to be bound by the provisions hereof
(except for Section 5.2 which shall continue to apply). In the
event that only part of the Shares held by such Shareholder
holding Shares are transferred to such transferee, such
Shareholder holding Shares shall continue to be bound by the
provisions hereof in respect of the remaining Shares it holds.
4.5 Transfers by a Limited Partnership to its Limited Partners
Notwithstanding any provision of this Agreement other than
Section 4.10, each of Celtic, GTI V, GTI V (NR) or Bay Tech
(each a "Limited Partnership") may, at any time and from time
to time, Transfer all or any of the Shares held by it to any
of its limited partners (a "Limited Partner") if such Transfer
results from a distribution by the Limited Partnership or the
wind-up of the Limited Partnership, in accordance with the
provisions of the limited partnership agreement governing it
provided that:
4.5.1 the Limited Partner shall have executed and delivered
an instrument, in form and substance satisfactory to
legal counsel to the Company, in which the Limited
Partner makes the representations and warranties made
by the Shareholders under this Agreement and agrees
to execute an intervention in the form of Schedule
4.11;
4.5.2 the Limited Partner shall have executed and delivered
an instrument, in form and substance satisfactory to
legal counsel to the Company, in which the Limited
Partner grants to the general partner of the
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transferring Limited Partnership, by way of
irrevocable and unconditional grant, the right to
vote the Shares transferred to the Limited Partner at
all meetings of Shareholders and the right to execute
all documents and to do all things which a
Shareholder is permitted or required to do under this
Agreement; and
4.5.3 in the event that only part of the Shares held by the
Limited Partnership are Transferred to one or more of
its Limited Partners, such Limited Partnership shall
continue to be bound by the terms hereof in respect
of the remaining Shares it holds.
4.6 Transfer by Celtic
Notwithstanding any provision of this Agreement other than
Section 4.10, Celtic (including for greater certainty any
permitted transferee of Celtic or any successive transferee
pursuant to Section 4.3, 4.4 or 4.5) may at any time and from
time to time Transfer all or part of the Shares held by it to
(a) any fund under common management or control with Celtic
(or its successor by amalgamation), or whose manager or
general partner, as applicable, is the same as or an Affiliate
of the manager or general partner of Celtic (or its successor
by amalgamation); or (b) a partner or partners of any limited
partnership referred to in (a) above, if such Transfer results
from a distribution by the limited partnership or the wind-up
of the limited partnership in accordance with the provisions
of the limited partnership agreement governing it, or pursuant
to an agreement which requires such partner or partners to
Transfer such Shares to the limited partnership, provided in
each such case that such transferee is not a Competitor of the
Company and shall have executed and delivered an instrument,
in form and substance satisfactory to legal counsel to the
Company, in which such transferee makes the representations
and warranties made by the Shareholders under this Agreement
and any others required in the opinion of the Company to
comply with Section 4.10 and agrees to execute an intervention
in the form of Schedule 4.11, it being understood and agreed
that (i) such transferee, if same has acquired all of the
transferor's Shares, shall benefit from all the rights of such
transferor hereunder, as if such transferee had executed this
Agreement in lieu and place of such transferor and (ii) that
such transferor shall cease to be bound by the provisions
hereof (except for Section 5.2 which shall continue to apply).
In the event that only part of the Shares held by such
transferor are Transferred to such transferee, such transferor
shall continue to be bound by the provisions hereof in respect
of the remaining Shares it holds.
4.7 Right of First Refusal of Avensys
4.7.1 Except as otherwise provided herein, Avensys (the
"Offeror") shall be permitted to Transfer Shares only
if it receives a bona fide written offer (a "Third
Party Offer") from a Person (the "Third Party
Offeror") dealing at arm's length (as defined in the
Income Tax Act) to purchase all and not less than all
15
of the Shares that it owns (the "Offered Shares").
The Third Party Offer must be a cash offer to
purchase only Shares and no other assets and provide
for the purchase of the Shares of the ITF Group for a
price equal to the greater of (a) the value of the
Shares of the ITF Group calculated on the basis of
the price per Offered Share set out in the Third
Party Offer or (b) $2,000,000. The Offeror shall give
a notice ("Notice") to the Company and the ITF Group
which Notice must contain a copy of the Third Party
Offer, disclose the identity of the Person making the
Third Party Offer and provide evidence sufficient to
establish that such Person has the power and
capacity, including financial capacity, to complete
the purchase of the Offered Shares and that the
conditions set out in Section 4.10 will be satisfied.
Upon the Notice being given, the ITF Group will have
the right, to be exercised within 30 days of receipt
of the Third Party Offer, to purchase all, but not
less than all, of the Offered Shares at the same
price and upon the same terms and conditions as are
contained in the Third Party Offer.
4.7.2 If the ITF Group is willing to purchase all, but not
less than all, of the Offered Shares as provided in
Section 4.7.1, the transaction of purchase and sale
will be completed in accordance with the terms set
out in the Third Party Offer by delivery of the
Offered Shares by the Offeror with good title, free
and clear of all liens, charges, encumbrances and any
other rights of others, against payment by certified
cheque or bank draft by the ITF Group. If, at the
time of completion, any Offered Shares are subject to
any lien, charge, encumbrance or other right of
others, the Offerees will be entitled to deduct from
the purchase money to be paid to the Offeror the
amount required to discharge all such liens, charges,
encumbrances or other rights of others and will apply
such amount to the repayment, on behalf of the
Offeror, of the obligations secured thereby.
4.7.3 If the ITF Group does not give notice that it wishes
to purchase the Offered Shares within 30 days of the
giving of the Notice, the rights of the ITF Group,
except as hereinafter provided, to purchase the
Offered Shares will terminate and Avensys and the ITF
Group must use their best efforts to sell to the
Third Party Offeror all, but not less than all, of
the Shares within 30 days after the expiry of the
30-day period. Any such sale must be at a price not
less than the purchase price contained in the Third
Party Offer and on other terms no more favourable to
Avensys than those contained in the Third Party
Offer.
4.7.4 If the Offeror defaults in transferring the Offered
Shares to the ITF Group as provided in this Section
4.7, the Company is authorized and directed to
receive the purchase money and thereupon to record
the transfer of the Offered Shares, to enter the
names of the ITF Group in the registers of the
Company as the holders of the Shares purchased by
16
them, and to cause to be issued to the ITF Group
share certificates for the Offered Shares in the
names of the respective Preferred Holders. The
Company will hold the purchase money received by it
in trust on behalf of the Offeror and will not
commingle the purchase money with the Company's
assets, except that any interest thereon will be for
the account of the Company. The receipt by the
Company of the purchase money will be a good
discharge to the respective Preferred Holders and,
after their names have been entered in the registers
of the Company, the transaction of purchase and sale
will be deemed completed at the price and on the
other terms and conditions contemplated herein and
the respective Preferred Holders will for all
purposes own the Offered Shares purchased by them.
Upon such registration, the Offeror will cease to
have any right to or in respect of the Offered Shares
except the right to receive, without interest, the
purchase price received by the Company upon surrender
of any certificates that previously represented the
Offered Shares.
4.8 Right of First Refusal of the Preferred Holders
4.8.1 Except as otherwise provided herein, each Preferred
Holder (each an "Offeror") shall be permitted on and
after May 1, 2009 to Transfer Shares only if it
receives a bona fide written offer (a "Third Party
Offer") from a Person (the "Third Party Offeror")
dealing at arm's length (as defined in the Income Tax
Act) to purchase all and not less than all of the
Shares that it owns (the "Offered Shares"). The Third
Party Offer must be a cash offer to purchase only
Shares and no other assets. The Offeror shall give a
notice ("Notice") to the Company and the other
Shareholders (the "Offerees") which Notice must
contain a copy of the Third Party Offer, disclose the
identity of the Person making the Third Party Offer
and provide evidence sufficient to establish that
such Person has the power and capacity, including
financial, to complete the purchase of the Offered
Shares and that the conditions set out in Section
4.10 will be satisfied. Upon the Notice being given,
the Offerees will have the right, to be exercised
within 30 days of receipt of the Third Party Offer,
to purchase all, but not less than all, of the
Offered Shares at the same price and upon the same
terms and conditions as are contained in the Third
Party Offer.
4.8.2 The Offerees will be entitled to purchase the Offered
Shares pro rata based upon the number of Shares owned
by the Offerees at the date the Notice was given or
in such other proportion as the Offerees may agree in
writing. Each Offeree who desires to purchase all the
Offered Shares that such Offeree is entitled to
purchase in accordance with the provisions of this
Section 4.8.2 will give notice of such desire to the
Offeror, to the Company and to the other Offerees
within 30 days of having been given the Notice.
17
4.8.3 If any Offeree does not give notice as provided in
Section 4.8.2, the Offered Shares that such Offeree
had been entitled to purchase (the "Rejected Shares")
may instead be purchased by the Offerees who did give
such notice, pro rata based upon the number of Shares
owned by such Offerees at the date the Notice was
given or in such other proportion as such Offerees
may agree in writing, and, within five Business Days
of the expiry of the 30 day period specified in
Section 4.8.2, each Offeree who desires to purchase
all the Rejected Shares that such Offeree is entitled
to purchase in accordance with the provisions of this
Section 4.8.3 will give an additional notice to the
Offeror, to the Company and to the other Offerees. If
any Offeree entitled to give the additional notice
does not do so, the Rejected Shares that such Offeree
had been entitled to purchase may instead be
purchased by the Offerees who did give such
additional notice, pro rata based upon the number of
Shares owned by such Offerees at the date the Notice
was given or in such other proportion as such
Offerees may agree in writing, and so on from time to
time until the Offerees are willing to purchase all
the Offered Shares or until they are not willing to
purchase any more.
4.8.4 If the Offerees are willing to purchase all, but not
less than all, of the Offered Shares, the transaction
of purchase and sale will be completed in accordance
with the terms set out in the Third Party Offer by
delivery of the Offered Shares by the Offeror with
good title, free and clear of all liens, charges,
encumbrances and any other rights of others, against
payment by certified cheque or bank draft by the
Offerees. If, at the time of completion, any Offered
Shares are subject to any lien, charge, encumbrance
or other right of others, the Offerees will be
entitled to deduct from the purchase money to be paid
to the Offeror the amount required to discharge all
such liens, charges, encumbrances or other rights of
others and will apply such amount to the repayment,
on behalf of the Offeror, of the obligations secured
thereby.
4.8.5 If the Offeror defaults in transferring the Offered
Shares to the Offerees as provided in this Section
4.8, the Company is authorized and directed to
receive the purchase money and thereupon to record
the transfer of the Offered Shares, to enter the
names of the Offerees in the registers of the Company
as the holders of the Shares purchased by them, and
to cause to be issued to the Offerees share
certificates for the Offered Shares in the names of
such Offerees. The Company will hold the purchase
money received by it in trust on behalf of the
Offeror and will not commingle the purchase money
with the Company's assets, except that any interest
18
thereon will be for the account of the Company. The
receipt by the Company of the purchase money will be
a good discharge to the Offerees and, after their
names have been entered in the registers of the
Company, the transaction of purchase and sale will be
deemed completed at the price and on the other terms
and conditions contemplated herein and the Offerees
will for all purposes own the Offered Shares
purchased by them. Upon such registration, the
Offeror will cease to have any right to or in respect
of the Offered Shares except the right to receive,
without interest, the purchase price received by the
Company upon surrender of any certificates that
previously represented the Offered Shares.
4.8.6 If the Offerees do not give notice in accordance with
the provisions of Section 4.8.2 that they are willing
to purchase all and not less than all the Offered
Shares, the rights of the Offerees, except as
hereinafter provided, to purchase the Offered Shares
will terminate and the Offeror may sell all, but not
less than all, of the Offered Shares to any person
within four months after the expiry of the 30 day
period specified in Section 4.8.2 or the last of the
five Business Day periods specified in Section 4.8.3,
as the case may be. Any such sale must be at a price
not less than the purchase price contained in the
Third Party Offer and on other terms no more
favourable to such person than those contained in the
Third Party Offer. If the Offered Shares are not sold
within such four month period on such terms, the
rights of the Offerees pursuant to this Section 4.7
will again take effect.
4.9 No Registration of Transfer Unless Transferee is Bound
If, pursuant to any provision of this Agreement, a Shareholder
Transfers any of such Shareholder's Shares, no Transfer of
such Shares shall be made nor shall be effective, and no
application shall be made to the Company or to the Company's
transfer agent to register the Transfer, and the Company shall
not register any such Transfer on the securities register of
the Company, until:
4.9.1 in the case of a Transfer contemplated by Sections
4.3, 4.4, 4.5, 4.6, 4.7 or 4.8 the documentation
referred to in those Sections has been delivered; and
4.9.2 in the case of any other Transfer, the proposed
transferee and the Person, if any, who Controls such
transferee, become subject to all of the obligations
of the transferor under this Agreement, pursuant to
an agreement in writing, in form and substance
satisfactory to the legal counsel of the Company. If
such transferee has acquired all of the Shares of the
transferor (in which case the proposed transferee
shall become entitled to exercise all the rights of
the transferor under this Agreement) he or it agrees
to be bound by all of the provisions hereof as if he
or it were an original signatory hereto in the place
of the transferor, pursuant to an agreement in
writing, in form and substance satisfactory to the
legal counsel of the Company whereupon the transferor
shall cease to have any rights or obligations
hereunder.
19
4.10 Specific Prohibitions on Transfer
Notwithstanding the foregoing provisions of this Article 4,
without the prior written consent of Avensys Lab:
4.10.1 The Preferred Holders may not Transfer any or all
Shares owned by them within the first three years of
the date hereof if in the opinion of the Company, the
Company's qualification for research and development
tax credits would be imperilled; and
4.10.2 During the first three (3) years of this Agreement,
no Transfer of Shares may be made if:
4.10.2.1 the proposed purchaser or transferee or
Person Controlling such purchaser or
transferee is a Competitor;
4.10.2.2 as a result, the remaining Shareholders or
the Company would become subject to any
governmental controls or regulations to
which they were not subject prior to the
proposed sale by reason of the nationality
or residence of the proposed purchaser or
transferee or Person Controlling such
purchaser or transferee;
4.10.2.3 as a result, the remaining Shareholders or
the Company would become subject to any
taxation or additional taxation to which
they were not subject prior to the proposed
sale;
4.10.2.4 the sale or transfer is not permitted by
applicable law or any term of any material
agreement affecting the Company, unless any
required consent or approval is obtained; or
4.10.2.5 the proposed purchaser or transferee does
not have the power and capacity, including
financial, to carry out its obligations
under this Agreement to the satisfaction of
the remaining Shareholders, acting
reasonably.
4.11 New Shareholders
No Shares may be issued or Transferred to a Person which is
not a Shareholder, unless the Person first executes and
delivers to the Company with a copy to each Shareholder an
intervention in the form of Schedule 4.11. If these conditions
are met, this Person shall be considered a Shareholder for the
purposes of this Agreement effective from its registration in
the Company's share register.
20
4.12 Endorsement on Certificates
Share certificates of the Company will note conspicuously the
following language:
"The shares represented by this certificate are subject to all
the terms and conditions of an agreement made as of o, 2006, a
copy of which is on file at the registered office of the
Company."
4.13 Put Option
4.13.1 Notwithstanding any other provision of this
Agreement, during the period commencing on April 1,
2009 and ending October 1, 2009 (the "Permitted
Window"), each Preferred Holder shall have the option
(the "Put Option") to be exercised by written notice
(the "Election Notice") to Avensys, the Company,
Manaris and the other Preferred Holders during the
Permitted Window to either:
4.13.1.1 sell all and not less than all of the Shares
owned by such Preferred Holder to Avensys
for its proportionate share of $2,000,000
calculated based on such Preferred Holder's
respective shareholding interest as set
forth in Section 2.4.3 of the Asset Purchase
Agreement and in which case Avensys shall be
obligated to purchase same at such price,
payable within 30 days of receipt of the
Election Notice and of the share
certificates representing such Preferred
Holder's Shares, duly endorsed for transfer;
or
4.13.1.2 exchange all and not less than all of the
Shares owned by such Preferred Holder into
that number of freely tradable common shares
of Manaris equal its proportionate share of
$1,500,000 divided by the Reference Share
Price, as defined in the Asset Purchase
Agreement, calculated based on such
Preferred Holder's respective shareholding
interest as set forth in Section 2.4.3 of
the Asset Purchase Agreement and in which
case, Manaris shall deliver such common
shares to such Preferred Holder within 30
days of receipt of the Election Notice and
of the share certificates representing said
Shares, duly endorsed for transfer.
4.13.2 In the event that any Preferred Holder exercises the
Put Option in accordance with Section 4.13.1, each of
the other Preferred Holders shall send a notice to
Avensys, the Company and Manaris within 15 days of
receipt of the Election Notice (the "Second Election
Notice") confirming that they elect to either :
21
4.13.2.1 sell all and not less than all of the Shares
owned by such Preferred Holder to Avensys in
accordance with Section 4.13.1.1, the
payment of which shall occur within 30 days
of receipt of the Second Election Notice; or
4.13.2.2 exchange all and not less than all of the
Shares owned by such Preferred Holder in
accordance with Section 4.13.1.2, the
deliverance of corresponding common shares
of Manaris occurring 30 days of receipt of
the Second Election Notice.
If a Preferred Holder does not send a Second Election
Notice within such 15 day time period, said Preferred
Holder will be deemed to have elected to exchange its
Shares in accordance with Section 4.13.2.1.
4.13.3 In the event that none of the Preferred Holders
exercises the Put Option in accordance with this
Section 4.13, the Shareholders agree to renegotiate
in good faith the terms and conditions of this
Agreement.
5. GENERAL
5.1 Non-Solicitation
Avensys may not, without the prior written consent of the
other Shareholders, at any time while Avensys is a shareholder
of the Company and for a period of twelve months after Avensys
ceases to be a shareholder of the Company, either individually
or in partnership or jointly or in conjunction with any Person
as principal, agent, trustee, employee or shareholder or in
any other manner whatsoever:
5.1.1 solicit for hire or employment any Person who is
known to the representative or representatives of
Avensys actually making such solicitation for hire or
employment to be an officer, director or employee of
the Company or a Subsidiary of the Company; or
5.1.2 solicit or do business with any Person that is a
customer of the Company or its Subsidiaries while
Avensys is a shareholder of the Company or at the
date Avensys ceases to be a shareholder of the
Company.
5.2 Confidentiality
None of the Shareholders may, without the prior written
consent of the other Shareholders, at any time while such
Shareholder is a shareholder of the Company and after such
Shareholder ceases to be a shareholder of the Company,
disclose to anyone or use for any purpose other than for the
22
business of the Company any confidential information
concerning the business and affairs of the Company and will
hold all such information in strictest confidence in
accordance with applicable laws or pursuant to decision of a
competent tribunal.
5.3 Further Assurances
Each of the parties will from time to time execute and deliver
all such further documents and instruments and do all acts and
things as another party may reasonably require to effectively
carry out or better evidence or perfect the full intent and
meaning of this Agreement.
5.4 Benefit of the Agreement
This Agreement will enure to the benefit of and be binding
upon the respective heirs, executors, administrators, other
legal representatives, successors and permitted assigns of the
parties.
5.5 Entire Agreement
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and cancels
and supersedes any prior understandings and agreements between
the parties with respect thereto. There are no
representations, warranties, terms, conditions, undertakings
or collateral agreements, express, implied or statutory,
between the parties other than as expressly set forth in this
Agreement.
5.6 Amendments and Waivers
No amendment to this Agreement will be valid or binding unless
set forth in writing and duly executed by all the parties. No
waiver of any breach of any provision of this Agreement will
be effective or binding unless made in writing and signed by
the party purporting to give the same and, unless otherwise
provided in the written waiver, will be limited to the
specific breach waived.
5.7 Assignment
Except as may be expressly provided in this Agreement, none of
the parties may assign such party's rights or obligations
under this Agreement without the prior written consent of all
the other parties.
5.8 Termination
This Agreement will terminate upon:
5.8.1 the written agreement of all the Shareholders;
23
5.8.2 the dissolution or bankruptcy of the Company or the
making by the Company of an assignment under the
provisions of the Bankruptcy and Insolvency Act
(Canada); or
5.8.3 one Shareholder becoming the beneficial owner of all
the Shares.
5.9 Severability
If any provision of this Agreement is determined to be invalid
or unenforceable in whole or in part, such invalidity or
unenforceability will attach only to such provision or part
thereof and the remaining part of such provision and all other
provisions hereof will continue in full force and effect.
5.10 Notices
Any demand, notice or other communication to be given in
connection with this Agreement shall be given in writing and
shall be given by personal delivery, by registered mail or by
electronic means of communication addressed to the recipient
as follows:
To 3599:
Investissement Technologie (3599) Inc.
▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Corporate Secretary
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to (but which shall not constitute notice
to 3599):
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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To OTPP:
Ontario Teachers' Pension Plan
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President, Venture Capital
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to (but which shall not constitute notice
to OTPP)
▇▇▇▇ & Berlis LLP
Suite 1800
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To Celtic:
Celtic House Venture Partners Fund IIA LP
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Partner and Chief Operating Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To GTI V:
GTI V Limited Partnership
▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: General Partner
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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To GTI V (NR):
GTI V (NR) Limited Partnership
▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: General Partner
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To Bay Tech:
Bay Tech Venture Capital GmbH & Co. KG.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Limited Managing Partner
Telecopier: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇
To Avensys:
Avensys Inc.
▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ d'Amours, President and Chief Executive
Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to (but which shall not constitute notice
to Avensys):
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Suite 2500
1000 de La Gauchetiere Street West
Montreal, Quebec
H3B 0A2
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
26
To the Company:
Avensys Laboratories Inc.
▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to (but which shall not constitute notice
to the Company):
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Suite 2500
1000 de La Gauchetiere Street West
Montreal, Quebec
H3B 0A2
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To Manaris:
Manaris Corporation
1155 ▇▇▇▇-▇▇▇▇▇▇▇▇, Suite 2720
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to (but which shall not constitute notice
to Manaris):
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Suite 2500
1000 de La Gauchetiere Street West
Montreal, Quebec
H3B 0A2
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address, individual or electronic
communication number as may be designated by notice given by a
party to the others. Any demand, notice or other communication
given by personal delivery shall be conclusively presumed to
27
have been given on the day of actual delivery thereof and, if
given by registered or certified mail, on the third Business
Day following the deposit thereof in the mail and, if given by
electronic communication, on the day of successful transmittal
thereof if given during the normal business hours of the
recipient and on the Business Day during which such normal
business hours next occur if not given during such hours on
any day. If the party giving any demand, notice or other
communication knows or ought reasonably to have known of any
difficulties with the postal system which might affect the
delivery of mail, any such demand, notice or other
communication shall not be mailed but shall be given by
personal delivery or by electronic communication.
5.11 Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec and the
laws of Canada applicable therein.
5.12 Counterparts
This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original and all of
which taken together will be deemed to constitute one and the
same instrument.
5.13 Facsimiles
Delivery of an executed signature page to this Agreement by
any party by electronic transmission will be as effective as
delivery of a manually executed copy of the Agreement by such
party.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
referred to above.
AVENSYS INC.
By: /s/ ▇▇▇▇▇▇ d'Amours
-------------------
▇▇▇▇▇▇ d'Amours,
President and Chief Executive
Officer
AVENSYS LABORATORIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
▇▇▇▇▇▇ ▇▇▇▇▇,
President
INVESTISSEMENT TECHNOLOGIE (3599) INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
By: /s/ Michel Sainte-▇▇▇▇▇
-----------------------
Michel Sainte-▇▇▇▇▇
Assistant Secretary
ONTARIO TEACHERS' PENSION PLAN
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Venture Capital
29
CELTIC HOUSE VENTURE PARTNERS FUND IIA LP
by Celtic House General Partner (Fund
IIA) Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Partner and Chief Operating Officer
GTI V LIMITED PARTNERSHIP
by GTI V Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior General Partner
GTI V (NR) LIMITED PARTNERSHIP
by GTI V (NR) Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior General Partner
BAY TECH VENTURE CAPITAL GMBH & CO. KG
By: /s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
------------------------------
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Managing Limited Partner
MANARIS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Executive Officer
30
SCHEDULE 4.11
INTERVENTION FORM
The undersigned, _________________________________, as the owner of ____ shares
in the share capital of Avensys Laboratories Inc. (the "Company"), having
acquired them on ________________________, hereby intervenes in the Shareholder
Agreement dated as of __________, 2006 among the shareholders of the Company
(the "Agreement"), a copy of which is annexed hereto, and declares that it has
read the Agreement, understands its meaning and scope and is satisfied
therewith. The undersigned further declares itself to be bound by each of the
provisions of the Agreement as if it were an original signatory thereto.
Name: ________________________________________________________
Signature: ___________________________________________________
Name of representative: ______________________________________
(if legal person)
Date: ________________________________________________________
31