EXHIBIT 10.14


 


Change of Control Agreement


 


	
  Dated

  	
   

  	
  April 5, 2004

  



 


 


(1)  LEICA GEOSYSTEMS A.G.


 


- and -


 


(2)  NOVATEL INC.


 


- and -


 


(3)  CMC ELECTRONICS INC.


 


- and -


 


(4)  ONCAP L.P.


 


 


CHANGE OF CONTROL
AGREEMENT


 

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Subject
  Matter

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Definitions and Interpretation

  	
   

  
	
  2.

  	
   

  	
  Change of Control of NovAtel

  	
   

  
	
  3.

  	
   

  	
  Offer Right

  	
   

  
	
  4.

  	
   

  	
  Term and Termination

  	
   

  
	
  5.

  	
   

  	
  Representations and Warranties

  	
   

  
	
  6.

  	
   

  	
  Limitation of Liability

  	
   

  
	
  7.

  	
   

  	
  Confidentiality

  	
   

  
	
  8.

  	
   

  	
  Notices

  	
   

  
	
  9.

  	
   

  	
  Assignment

  	
   

  
	
  10.

  	
   

  	
  Entire Agreement

  	
   

  
	
  11.

  	
   

  	
  General

  	
   

  
	
  12.

  	
   

  	
  Several Liability

  	
   

  
	
  13.

  	
   

  	
  Dispute Resolution, Governing Law and Venue

  	
   

  



 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  List of Leica Competitors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1A

  	
   

  	
  List of NovAtel Competitors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 2

  	
   

  	
  Arbitration Procedures

  	
   

  



 

















 


CHANGE OF CONTROL AGREEMENT


 


	
  DATE:

  	
   

  	
  April 5, 2004

  



 


PARTIES:


 


(1)           LEICA GEOSYSTEMS A.G., a company registered in Switzerland under number
CH-320.3.000.401-5 whose Leica Geosystems registered office is at Heinrich Wild
Strasse, CH-9435 Heerbrugg (“Leica Geosystems”)


 


(2)           NOVATEL INC., a company registered in Canada under number 076226-1 whose registered office is at 1120-68th Avenue N.E., Calgary,
Alberta, Canada (“NovAtel”)


 


(3)           CMC ELECTRONICS INC., a company registered in Canada under number 388613-1 whose
registered office is at 600 Dr. Frederik Philips Blvd., Saint-Laurent, Quebec,
Canada (“CMC”)


 


(4)           ONCAP L.P., a limited partnership established in the Province of Ontario whose
registered office is at 161 Bay Street, 48th Floor, P.O. Box 220, Toronto,
Ontario, Canada (“Oncap”)


 


RECITALS:


 


WHEREAS,
the parties hereto have entered into
that certain Strategic Co-Operation Agreement (as defined below) to establish a
long-term strategic co-operative relationship that provides Leica Geosystems
with access to GNSS Products (as defined below) on commercially reasonable
terms, including as to availability, performance, quality and price.


 


WHEREAS,
the parties wish to provide for
certain rights in the event of a Change of Control of NovAtel (as defined
below), a Change of Control of CMC (as defined below) and/or the proposed sale
by CMC of some or all of its shares in NovAtel.


 


IT IS AGREED as
follows:


 


1.             Definitions and
Interpretation


 


1.1           In
this Agreement, the following words and phrases shall have the following
meanings.


 


“Affiliate”
means, with respect to a specified Person, another Person that, directly or
indirectly, controls or is controlled by or is under common control with the
Person specified and, for the purpose of this Agreement, “control” shall mean
the possession, directly or indirectly, of (i) 50% or more of the issued and
outstanding voting securities of a Person, or (ii) the power otherwise to elect
a majority of the directors of a Person; provided, however,


 


1

















 


(i) for
purposes of determining whether a holding body corporate of a named Leica
Competitor listed on Schedule 1 is a Leica Competitor, “Affiliate” shall
not include any holding body corporate of the Leica Competitor (or any of its
Affiliates other than the named Leica Competitor listed on Schedule 1),
unless the assets of the Leica Competitor listed in Schedule 1 represent
greater than:


 


a)             20%,
in the case of acquisition of voting securities of CMC; or


 


b)            10%,
in the case of acquisition of voting securities of NovAtel,


 


of the
consolidated assets of the holding body corporate;


 


(ii) for
purposes of determining whether a holding body corporate of a named NovAtel
Competitor listed on Schedule 1A is a NovAtel Competitor, “Affiliate”
shall not include any holding body corporate of the NovAtel Competitor (or any
of its Affiliates other than the named NovAtel Competitor listed on
Schedule 1A), unless the assets of the NovAtel Competitor listed in
Schedule 1A represent greater than 10% of the consolidated assets of the
holding body corporate.


 


Notwithstanding
the foregoing, if it can be reasonably anticipated that such Leica Competitor
or NovAtel Competitor, as the case may be, and NovAtel or Leica, as the case
may be (assuming such change of control occurs) will report in all material
respects to the same operating management responsible for the two businesses,
the holding body corporate will be deemed to be an Affiliate.  For the purposes of this Agreement, a body
corporate shall be deemed to be another’s holding body corporate if, but only
if, that other is its subsidiary.


 


“Business Day”
means a day other than a Saturday or Sunday or a public holiday in Canada or
Switzerland.


 


“Change of
Control of CMC” means the first acquisition, directly or indirectly,
in one or a series of transactions, by any Leica Competitor, as then listed on
Schedule 1 (together with any Person acting jointly or in concert with a
Leica Competitor) of (i) 50% or more of the issued and outstanding voting
securities of CMC, (ii) the power otherwise to elect a majority of the
directors of CMC or (iii) a significant portion of the assets of CMC (which
includes the NovAtel shares).  For
greater certainty, a Change of Control of CMC and/or NovAtel shall only include
the first event that satisfies the preceding conditions.


 


“Change of
Control of Leica Geosystems” means the acquisition, directly or
indirectly, in one or a series of transactions, by any NovAtel Competitor as
then listed on Schedule 1A (alone or together with any person acting
jointly or in concert with a NovAtel Competitor) of (i) 50% or more of the
issued and outstanding voting securities of Leica Geosystems, (ii) the
power otherwise to elect a majority of the directors of Leica Geosystems or
(iii) a significant portion of the assets of Leica Geosystems.


 


“Change of
Control of NovAtel” means the first acquisition, in one or a series
of transactions, by any Leica Competitor as then listed on Schedule 1
(together with any Person acting jointly or in concert with a Leica Competitor)
of (i) 50% or more of the issued and outstanding voting securities of NovAtel,
(ii) the power otherwise to elect


 


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a majority of
the directors of NovAtel or (iii) a significant portion of the assets of
NovAtel or all or substantially all of the technology underlying this
Agreement.  A Change of Control of CMC
will not constitute a Change of Control of NovAtel.  For greater certainty, a Change of Control of CMC and/or NovAtel
shall only include the first event that satisfies the preceding conditions.


 


“Change of
Control of a NovAtel Competitor” means the acquisition, directly or
indirectly, in one or a series of transactions, by Leica Geosystems (alone or
together with any person acting jointly or in concert with Leica Geosystems) of
(i) 50% or more of the issued and outstanding voting securities of a
NovAtel Competitor then listed in Schedule 1A, (ii) the power
otherwise to elect a majority of the directors of a NovAtel Competitor or
(iii) a significant portion of the assets of a NovAtel Competitor.


 


“Confidential
Information” shall have the meaning assigned to it in Clause 7.2.


 


“Contract
Parties”
means Leica Geosystems, NovAtel, CMC and Oncap.


 


“Development
Agreement” shall mean the agreements the Parties will from time to
time enter into for development of GNSS Products by NovAtel, which will define
the terms for specific GNSS Product development projects, such as technical
specifications, project costs, timelines and deliverables.


 


“GNSS”
means global navigational satellite system.


 


“GNSS
Products” means state-of-the-art OEM receiver boards, antennas and
other GNSS products and technologies.


 


“GNSS
Technologies” include single-frequency L1, Wide Area Augmentation
System (“WAAS”)
and other augmentation systems, dual-frequency L1/L2, L2C, L5, Galileo, Glonass
receivers, pinwheel and other antennas, as well as other integrated positioning
and communication technologies.


 


“Initial Term”
shall have the meaning assigned to it in Clause 4.1.


 


“Intellectual Property Rights” means
patents, trademarks, service marks, mask works, copyrights, and all
applications for the foregoing, licences, know-how, industrial designs, trade
secrets, trade names and any other similar rights arising anywhere in the
world.


 


“Leica Competitor” means a
Person who engages in the development, manufacture, design, distribution, sale
or supply of, or otherwise deals in, GNSS Products and GNSS Technologies for
surveying applications or other surveying measurement products. The initial
list of Leica Competitors is attached as Schedule 1.  The Parties will discuss, on each
anniversary date of this Agreement, whether the list of competitors should be
updated using criteria consistent with those used to determine the list of
competitors at the date hereof.  Upon
agreement by the Parties, the list of competitors on Schedule 1 will be
updated.


 


“Leica Triggering Event”  means
a Change of Control of Leica Geosystems or a Change of Control of a NovAtel
Competitor.


 


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“NovAtel
Competitor”  means a Person who engages in the
development, manufacture, design, distribution, sale or supply of, or otherwise
deals in, GNSS Products and GNSS Technologies. 
The initial list of NovAtel Competitors is attached as
Schedule 1A.  The Parties will discuss,
on each anniversary date of this Agreement, whether the list of NovAtel
Competitors should be updated using criteria consistent with those used to
determine the list of competitors at the date hereof.  Upon agreement by the Parties, the list of NovAtel Competitors on
Schedule 1A will be updated.


 


“OEM”
means original equipment manufacture.


 


“Parties”
means Leica Geosystems and NovAtel.


 


“Person”
includes a natural person, firm, company, association, trust, partnership,
joint venture, government, state, local authority or other organization (in
each case whether or not having legal personality).


 


“Strategic
Co-Operation Agreement” shall mean
the Amended and Restated Strategic Co-Operation Agreement, dated as of
April 5, 2004, by and between Leica and NovAtel.


 


“Supply
Agreement” shall mean the agreements entered into by the Parties for
the manufacture and supply of GNSS Products by NovAtel, which will define
product supply obligations, including technical specifications, numbers of
units, costs and service and support obligations.


 


1.2           In
this Agreement, unless otherwise specified:


 


1.2.1        references
to parties, clauses, and schedules are to clauses of, and the parties and
schedules to, this Agreement, a reference to a paragraph is to the paragraph
clause or schedule in which it appears and references to this Agreement
include a reference to each of the Schedules;


 


1.2.2        headings
are for convenience only and do not affect its interpretation;


 


1.2.3        use of
any gender includes the other genders;


 


1.2.4        references
to a “company” are to a company, corporation or other body corporate, wherever
and however incorporated;


 


1.2.5        “include”
and “including” are to be construed without limitation, general words
introduced by the word “other” are not to be given a restrictive meaning by
reason of the fact that they are preceded by words indicating a particular
class of acts, matters or things and general words are not to be given a
restrictive meaning by reason of the fact that they are followed by particular
examples intended to be illustrations of those general words;


 


1.2.6        a
reference to a date which is not a Business Day is to be construed as a
reference to the next succeeding Business Day;


 


1.2.7        a
reference to a statute or statutory provision is to that statute or provision
as in force at the date of this Agreement and includes any subordinate legislation


 


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made under it
and is to be construed as a reference to a statute or statutory provision of
which it is a re-enactment or consolidation.


 


2.             Change of Control of NovAtel


 


2.1           On or
before the occurrence of a Leica Triggering Event, in the event of a proposed
Change of Control of NovAtel


 


(a)            for
so long as NovAtel is controlled by CMC, if the event is described in clauses
(i) or (iii) of the definition of Change of Control of NovAtel, which, CMC is interested
in pursuing, or in the case of an asset transaction, which the board of
directors of NovAtel is interested in pursuing, Leica Geosystems will have the
right, for a period ending on the later of:


 


(i)         60 days
following the date that Leica Geosystems receives written notice of a proposed
Change of Control of NovAtel from CMC, and


 


(ii)        30 days
following the date Leica Geosystems receives a copy of the offer (“Formal
Offer”) from a third party to CMC in respect of a proposed Change of Control of
NovAtel,


 


to notify CMC
or NovAtel, as the case may be, of its intention to purchase and to purchase,
CMC’s shares of NovAtel or NovAtel’s assets, as the case may be on the
same terms as those contained in the Formal Offer made to or by the third party
(other than a condition in such third party offer that such offer and the
related financing is conditional on Leica Geosystems waiving or not exercising
its right of purchase under this Agreement) in respect of the proposed Change
of Control of NovAtel, subject to compliance with relevant regulatory
requirements and securities and any other applicable laws; provided that if the
Leica Competitor has not made a Formal Offer within 90 days following the date
of the notice in clause (i) above, such right to purchase shall, at CMC or
NovAtel’s option, as the case may be, on written notice to Leica Geosystems,
terminate and the provisions of this Section 2.1 will apply in respect of
any new proposed Change of Control of NovAtel; or


 


(b)            if
the event is described in clause (ii) of the definition of Change of Control of
NovAtel, Leica Geosystems will have the right to purchase CMC shares of NovAtel
for fair market value on the same basis and time restrictions as set out in
Clause 2.2 subject to compliance with relevant regulatory requirements and
securities laws.


 


2.2           NovAtel
or, if applicable, CMC shall, subject to compliance with applicable law, use
reasonable efforts to ensure that Leica Geosystems has reasonable access to all
documentation relevant to NovAtel and to NovAtel’s senior management to conduct
reasonable due diligence.  NovAtel and,
if applicable, CMC shall ensure that a Formal Offer is provided to Leica
Geosystems prior to a Change of Control of NovAtel.  On or before the occurrence of the earlier of (i) a Leica
Triggering Event and (ii) a Change of Control of NovAtel, for so long as
NovAtel is controlled by CMC, in the event of a proposed Change of Control of
CMC, Leica Geosystems will have the right, for a period of 30 days from the
date it is notified of such proposed Change of Control of CMC, to notify (the
“Leica Notice”) CMC of its intention to purchase


 


5

















 


CMC’s shares of NovAtel.  The purchase price of the NovAtel shares
shall be the shares’ fair market value as determined by Scotia Capital who
shall be provided a copy of the Leica Notice. 
Both parties shall have the right to present submissions to Scotia
Capital as to their views of the fair market value of the NovAtel shares within
10 days following delivery of the Leica Notice. CMC and Leica Geosystems
shall use their best efforts to cause Scotia Capital to complete its
determination of the fair market value of the NovAtel shares within
30 days following delivery of the Leica Notice.  If, for whatever reason, Scotia Capital is unwilling or unable to
determine the fair market value of the NovAtel shares in accordance with the
foregoing provision, then the president of the Canadian Institute of Chartered
Accountants shall appoint an independent valuator to determine such fair market
value.


 


2.3           For so
long as NovAtel is controlled by CMC, CMC shall notify Leica Geosystems in a
timely manner in respect of any contemplated Change of Control of NovAtel.  For so long as NovAtel is controlled by CMC,
CMC shall notify Leica Geosystems in a timely manner of any contemplated Change
of Control of CMC provided that the Chief Executive Officer of CMC believes, in
his or her reasonable opinion, that such notification will not have any
materially prejudicial effect on, or breach any non-disclosure requirements of,
such contemplated Change of Control of CMC. 
Notwithstanding the foregoing, for so long as NovAtel is controlled by
CMC, CMC shall ensure that Leica Geosystems is notified of a proposed Change of
Control of CMC prior to a Change of Control of CMC.


 


2.4           If a
Change of Control of NovAtel or a Change of Control of CMC is completed and
Leica Geosystems does not exercise its right to terminate the Strategic
Co-operation Agreement pursuant to Clause 7.1(i) therein, CMC shall use
reasonable efforts to have the buyer of the shares agree to vote its shares in
NovAtel to elect a Leica Geosystems nominee to the board of directors of
NovAtel.


 


2.5           NovAtel
and CMC shall use commercially reasonable efforts to obtain any shareholder
consent required to enable Leica Geosystems to exercise its rights under this
Clause 2.


 


3.             Offer Right


 


3.1           In the
event CMC proposes to sell some or all of its shares in NovAtel, to a party
other than a Leica Competitor, except to an Affiliate or subsidiary of CMC for
reorganization purposes or to NovAtel management (in which case such transferee
shall agree in writing to be bound by the provisions of this Agreement), Leica
Geosystems will be given not less than 90 days prior notice of such proposed sale
along with general information regarding the proposed terms being considered
(the “CMC First Notice”).  Leica
Geosystems will be entitled to make an offer to purchase some or all of such
shares upon receipt of the CMC First Notice. 
If Leica Geosystems intends to make an offer it will submit a
non-binding letter of intent, which will include the general terms and
conditions of its offer, within 45 days of receiving the CMC First Notice.  Upon acceptance by CMC of Leica Geosystems’
letter of intent, Leica Geosystems will have 45 days to conduct due diligence
and submit its final offer.  CMC and
NovAtel shall, subject to compliance with law, ensure that Leica Geosystems
shall have reasonable access to all documentation relevant to NovAtel and to
NovAtel’s senior management, in order to permit Leica Geosystems to conduct its
due diligence.  If within the above time
periods, CMC receives a bona fide offer


 


6

















 


from an arm’s length third party
(“Purchaser”) to acquire its shares in NovAtel, it will promptly give notice to
Leica Geosystems of such offer, along with general information regarding the
proposed terms of such offer (the “CMC Second Notice”).  If, after receiving the CMC Second Notice,
Leica Geosystems intends to make an offer to purchase CMC’s shares in NovAtel,
the offer must be made and must by its terms expire within 20 days after
receipt of the CMC Second Notice.  CMC
shall consider any offer by Leica Geosystems in good faith, but will be under
no obligation to accept any offer from Leica Geosystems.  If in connection with the proposed sale, a
sale does not occur with one of the purchasers CMC is in discussions with and
the sale process terminates, CMC shall again comply with the provisions of this
Clause 3.1 before selling its shares of NovAtel.


 


3.2           Leica
Geosystems is entitled at any time for so long as NovAtel is a public company,
subject to compliance with relevant regulatory requirements and securities
laws, to purchase shares in NovAtel on the open market.  CMC will support Leica Geosystems’ becoming
a strategic shareholder in NovAtel, on terms that are fair to all the
shareholders of NovAtel.


 


3.3           If CMC
transfers some or all of its Shares in NovAtel to an Affiliate, such Affiliate
shall agree in writing to be bound by the provisions of this Agreement.


 


4.             Term and Termination


 


4.1           Subject
to early termination as set out in this Agreement,  the initial term of this Agreement will be seven (7) years
from May 1, 2003 (the “Initial Term”) and will be automatically renewed at the
end of the Initial Term (or each 12 month extension pursuant to this Clause
4.1) for a further 12 months, unless either Party notifies the other in writing
at least 365 days prior to the expiration of the Initial Term or any relevant
subsequent 12 month extension (as the case may be) that it does not wish to
renew, in which case this Agreement will terminate at the end of the Initial
Term or the latest subsequent 12 month extension, as the case may be.


 


4.2           As
used herein, a Contract Party shall be deemed a “Defaulting Party” if such
Contract Party commits a material breach of its obligations under this
Agreement or under any Supply or Development Agreement and, if the breach is
capable of remedy, it fails to remedy such breach within 90 days (except in the
case of a monetary default which shall be cured in 30 days) after having been
specifically required by written notice to do so.  NovAtel may terminate this Agreement with immediate effect by
written notice to the other Contract Parties at any time during which Leica
Geosystems is a Defaulting Party.  Leica
Geosystems may terminate this Agreement with immediate effect by written notice
to the other Contract Parties at any time during which NovAtel, CMC or Oncap is
a Defaulting Party.


 


4.3           All
further rights and obligations of the Parties cease to have effect on
termination of this Agreement, except that termination shall not affect the
accrued rights and obligations of the Parties at the date of termination or the
continued existence and validity of the rights and obligations of the Parties
under this Clause 4 and those clauses which are expressly intended to survive
termination and any provisions necessary for the interpretation or enforcement
of this Agreement.


 


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4.4           In the
event of a Leica Triggering Event, NovAtel and/or CMC will have the right, to
be exercised within 90 days of the date on which it becomes aware that a Leica
Triggering Event has occurred, to terminate some or all of its obligations
under this Agreement.


 


4.5           Oncap
will automatically cease to be a party to this Agreement when Oncap and its
Affiliates cease to control CMC.


 


4.6           This
Agreement will automatically terminate upon the termination of the Strategic
Co-Operation Agreement.


 


5.             Representations and
Warranties


 


5.1           Leica
Geosystems represents and warrants to each of the other Contract Parties, and
NovAtel, CMC and Oncap severally represent and warrant, in respect of the
following matters, as such matters relate to itself only, to Leica Geosystems,
as follows:


 


5.2           it is
a company (or limited partnership in the case of Oncap) duly established and
existing under its jurisdiction of establishment and has the requisite power
and authority to enter into this Agreement and any other agreements it is
required under this Agreement to enter into (together the “Transaction
Agreements”) and to perform its obligations under each of them;


 


5.3           this
Agreement constitutes, and the other Transaction Agreements will, when executed,
constitute, its binding obligations in accordance with their respective terms;


 


5.4           its
execution and delivery of, and performance of its obligations under, this
Agreement and the other Transaction Agreements will not violate, conflict with,
result in a breach of, constitute a default under or give rise to a right of
termination of any obligation under:


 


(a)           any
agreement, instrument, mortgage, indenture or arrangement to which it is a
party or by which it is, or any of its properties or assets are, bound;


 


(b)           its
certificate of incorporation or memorandum or articles of association or other
constitutional document; or


 


(c)           any
order, judgement or decree of any court or governmental agency to which it is a
party or by which it, or any of its properties or assets, is bound.


 


The execution
and delivery of this Agreement will not require it to obtain any shareholders’
consent and, excluding for the purpose of the following representation and
warranty the provisions of Clauses 2 and 3 with respect to NovAtel and CMC, the
performance by it, of its terms will not require (i) it to obtain any
shareholders consent or (ii) to obtain the approval of, or give notice to
or register with, any governmental or other authority which has not been
obtained, given or made at the date of this Agreement and is in full force and
effect.


 


5.5           There
are no:


 


(a)           outstanding
judgements, orders, injunctions or decrees of any governmental or regulatory
body or arbitration tribunal against or affecting it;


 


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(b)           lawsuits,
actions or proceedings pending or, to its knowledge threatened against or
affecting it; or


 


(c)           investigations
by any governmental or regulatory body which are, to its knowledge, pending or
threatened against it,


 


which, have or
could have a material adverse effect on the ability of it to execute and
deliver, or perform its obligations under, this Agreement and the other
Transaction Agreements.


 


6.             Limitation of Liability


 


6.1           Except
as set out in this Agreement, all conditions, warranties, representations,
terms and undertakings, express or implied, statutory or otherwise, in respect
of this Agreement are excluded.


 


6.2           No
Contract Party shall in any circumstances be liable (whether in negligence,
tort, contract, misrepresentation, under any indemnity or otherwise) for any
indirect, incidental, punitive, special or consequential loss or damage such
as, without limitation, any loss of revenue, loss of profit and contract
incurred or suffered by any other Contract Party in respect of this Agreement,
even if it has been advised of the possibility of such damages.


 


7.             Confidentiality


 


7.1           During
the Initial Term and any extensions under Clause 4 and after termination or
expiration of this Agreement for any reason, and subject to this Clause 7, the
Contract Parties will maintain all Confidential Information in strict
confidence and not at any time disclose or make known to any Person or use for
any purpose other than the performance of its obligations hereunder any Confidential
Information and, except as provided below, all decisions regarding the timing
and content of any disclosure of such Confidential Information will be subject
to the prior mutual agreement of all Contract Parties.


 


7.2           The
term Confidential Information includes (i) this Agreement and the existence and
status of the Contract Parties’ negotiations and (ii) all information furnished
to one Contract Party by any other Contract Party, whether by way of oral
explanation or by making available any records, contracts, books of account,
budgets, reports, forecasts, projections or other information, and also
includes all notes, analyses, compilations, studies or other documents, whether
prepared by the disclosing party or their respective representative.


 


7.3           Such Confidential
Information will not include information which (i) at the time of disclosure or
thereafter is generally available to and known by the public (other than as a
result of a disclosure directly or indirectly by one of the Contract Parties),
(ii) was available on a non-confidential basis from a third party source, (iii)
is required to be disclosed pursuant to applicable law, regulation, legal
process or exchange rules or (iv) is reasonably required to be disclosed in
order to enable a Contract Party to discharge its obligations hereunder;
provided, however, that, in the case of subsections (iii) and (iv) hereof, any
Contract Party disclosing information that would otherwise constitute
Confidential Information shall, to the extent practical under the


 


9

















 


circumstances, provide prior notice of such
disclosure to the other Contract Parties and, if so requested by another
Contract Party, use its commercially reasonable efforts to ensure that such
information is treated confidentially by the recipients.


 


7.4           Each
Contract Party may disclose Confidential Information to employees, consultants
and advisors, on a need-to-know basis, provided that the disclosing party
ensures that each such individual observes the confidentiality obligations
herein.


 


7.5           The
Contract Parties will issue no press release or make any other public
announcement relating their discussions or business relationships except in a
mutually acceptable form, unless according to legal counsel, such Contract
Party is required to issue a press release or make any other public
announcement pursuant to applicable law, regulation, legal process or exchange
rules.  In such event, but without
limiting the foregoing, the Contract Parties will endeavour to agree on the
form of a press release or other announcement.


 


7.6           After
the termination or expiry of this Agreement each Contract Party shall
immediately return to the other relevant Contract Party (or destroy if so
directed) all Confidential Information received from such Contract Party,
whether in printed matter form, on disk or otherwise, which is in its
possession, custody or control.


 


7.7           The
Contract Parties acknowledge that damages would not be an adequate remedy for
any breach of this Clause 7 and each Contract Party shall be entitled to the
remedy of injunction, specific performance and other equitable relief for any
threatened or actual breach, in addition to any damages or other remedy to
which it may be entitled and no proof of special damages shall be necessary for
the enforcement of this Agreement.


 


8.             Notices


 


8.1           Any
notice to be given under this Agreement must be in writing signed by or on
behalf of the Contract Party giving it and may be delivered personally or sent
by first class pre-paid post recorded delivery or by a recognised international
courier service, fees prepaid, or by fax, to the recipient at its address set
out in Clause 8.2 or such other address as it may have specified by giving not
less than five Business Days’ notice to the others.


 


8.2           In the
absence of evidence that it was received earlier, any notice or other
communication is deemed given:


 


8.2.1        if
delivered personally, when left at the address of the relevant Contract Party;


 


8.2.2        if sent
by first class post, five Business Days after the date of posting;


 


8.2.3        if sent
(fees prepaid) by a generally recognised international courier service, two
Business Days after delivery to the relevant international courier; and


 


8.2.4        if sent
by fax, on a Business Day when confirmation of its transmission has been
recorded by the sender’s fax machine.


 


If delivery or
transmission occurs after 5 p.m. on a Business Day or on a day which is not a
Business Day, service is deemed to occur at 9 a.m. on the next following
Business Day.


 


10

















 


The address of
each Contract Party for the purposes of this Clause 8 is:


 


	
  Name
  of Contract

  Party

  	
   

  	
  Address

  	
   

  	
  Numbers

  	
   

  	
  Attention:

  
	
  Leica Geosystems AG

  	
   

  	
  Heinrich Wild Strasse

  	
   

  	
  Fax:

  	
   

  	
  Martin Nix

  
	
   

  	
   

  	
  CH-9435 Heerbrugg

  	
   

  	
  +41 71 727 46 89

  	
   

  	
   

  
	
   

  	
   

  	
  Switzerland

  	
   

  	
   

  	
   

  	
  with a copy to Legal Affairs

  
	
   

  	
   

  	
   

  	
   

  	
  Phone:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   +41
  71 727 4700

  	
   

  	
   

  



 


	
  Name
  of Contract

  Party

  	
   

  	
  Address

  	
   

  	
  Numbers

  	
   

  	
  Attention:

  
	
  NovAtel Inc.

  	
   

  	
  1120-68th Avenue N.E.

  	
   

  	
  Fax:

  	
   

  	
  Graham Purves

  
	
   

  	
   

  	
  Calgary, Alberta

  	
   

  	
  (403) 295-0230

  	
   

  	
   

  
	
   

  	
   

  	
  Canada T2E 8S5

  	
   

  	
   

  	
   

  	
  with a copy to Legal Affairs

  
	
   

  	
   

  	
   

  	
   

  	
  Phone:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (403) 295-4964

  	
   

  	
   

  



 


	
  Name
  of Contract

  Party

  	
   

  	
  Address

  	
   

  	
  Numbers

  	
   

  	
  Attention:

  
	
  CMC Electronics Inc.

  	
   

  	
  600 Dr. Frederik Philips Blvd.

  	
   

  	
  Fax:

  	
   

  	
  Jean-Denis
  Roy

  
	
   

  	
   

  	
  St-Laurent, Quebec

  	
   

  	
  (514)
  748-3025

  	
   

  	
   

  
	
   

  	
   

  	
  Canada H4M 2S9 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Phone:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (514)
  748-3013

  	
   

  	
   

  



 


	
  Name
  of Contract

  Party

  	
   

  	
  Address

  	
   

  	
  Numbers

  	
   

  	
  Attention:

  
	
  Oncap L.P.

  	
   

  	
  161 Bay Street, 48th Floor

  	
   

  	
  Fax:

  	
   

  	
  Gregory Baylin

  
	
   

  	
   

  	
  P.O. Box 220

  	
   

  	
  (416) 214-6106

  	
   

  	
   

  
	
   

  	
   

  	
  Toronto, Ontario

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Canada M5J 2S1

  	
   

  	
  Phone:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (416) 214-4304

  	
   

  	
   

  



 


8.3           Notices
and communications transmitted by e-mail are not to be considered to be in
writing for the purposes of this Clause 8.


 


9.             Assignment


 


9.1           No
Contract Party will, without the prior written consent of the others, assign,
transfer, charge, create a trust in respect of or deal in any other manner
with, or purport to assign, transfer, charge, create a trust in respect of or
deal with, any of its rights or obligations under this Agreement; provided,
however, that
NovAtel and Leica Geosystems may assign the benefits of this Agreement as
security for any third party debt financing, provided that the beneficiaries of
such security agree to be bound by all or the obligations of the assignor
hereunder.


 


10.          Entire Agreement


 


10.1         This
Agreement, together with the Strategic Co-Operation Agreement and any Supply or
Development Agreement, and the documents referred to in it, constitute the
whole


 


11

















 


and only agreements and supersede any
previous agreements between the Contract Parties relating to its subject
matter.  Except as expressly set forth
herein, in the Strategic Co-Operation Agreement or in any Supply or Development
Agreement, all warranties, conditions or other terms implied by law in any
jurisdiction are excluded to the fullest extent permitted by law and, if
incapable of exclusion, irrevocably waived. 
Each of the Contract Parties agrees that, in entering into this
Agreement and the documents referred to in it, it does not rely on, and that no
Contract Party is liable for, or is entitled to claim rescission or any other
remedy in respect of, any statement, representation, warranty or assurance
(whether negligently or innocently made) of any Person made at any time prior
to the execution of this Agreement which is not expressly set out in this
Agreement, in the Strategic Co-Operation Agreement or in a Supply or
Development Agreement and that no Contract Party is liable for, or is entitled
to any remedy in respect of, any misrepresentation or untrue statement unless
and to the extent that a claim for breach of contract lies under this
Agreement, in the Strategic Co-Operation Agreement or in a Supply or
Development Agreement. Nothing in this Clause 10 has the effect of limiting or
restricting any liability of any Contract Party arising as a result of fraud,
wilful misconduct or wilful concealment.


 


11.          General


 


11.1         No
variation of this Agreement or of any of the documents referred to in it is
valid unless it is in writing and signed by or on behalf of each Contract
Party.


 


11.2         No delay
or failure on the part of any Contract Party in exercising a right, power or
remedy provided by law or under this Agreement will impair that right, power or
remedy or operate as a waiver of it or any other rights and remedies.  The single or partial exercise of any right,
power or remedy provided by law or under this Agreement will not preclude any
other or further exercise or the exercise of any other rights power or remedy.


 


11.3         Except
as expressly provided in this Agreement, the rights, powers and remedies
contained in this Agreement are cumulative and not exclusive of any rights,
powers or remedies provided by law.


 


11.4         If a
provision of this Agreement is or becomes or is found by a court or other
competent authority to be illegal, invalid or unenforceable, in whole or in
part, under any law, such provision will to that extent only be deemed not to
form part of this Agreement and the legality, validity and enforceability of
the remainder of this Agreement will not be affected or impaired.  The Contract Parties will negotiate in good
faith to replace any such illegal, invalid or unenforceable provision with a
valid and enforceable provision which, as far as possible, has the same legal
and commercial effect as that which it replaces.


 


11.5         When on
a particular date a Contract Party has a right to performance by another
Contract Party or a right to terminate this Agreement, such right may be
enforced or exercised notwithstanding any principles of equity, and the
Contract Party will be entitled to such performance or to terminate this
Agreement on or after such date.


 


11.6         Nothing
in this Agreement, and no action taken by the Contract Parties pursuant to this
Agreement, creates, or is to be construed as creating, a partnership,
association,


 


12

















 


joint venture or other co-operative entity
between the Contract Parties or constitutes any Contract Party as the agent of
the others for any purpose whatsoever.


 


11.7         This
Agreement may be executed in any number of counterparts, but is not effective
until each Contract Party has executed at least one counterpart.  Each counterpart, once executed, is deemed
to form part of and will together constitute this Agreement.


 


11.8         Each
Contract Party will pay its own costs relating to the negotiation, preparation,
execution and performance of this Agreement and any matter contemplated by it.


 


11.9         Nothing
in this Agreement shall be construed as to creating any obligation for board
members of any of the Contract Parties to forego any of their fiduciary
responsibilities as board members.


 


12.          Several Liability


 


12.1         Unless
expressly provided otherwise, all obligations of NovAtel, CMC and Oncap are
entered into by each of them severally in relation only to itself and its
liability for any breach of its obligations shall extend only to any loss or
damage arising from its own breach, subject always to Clause 6 hereof.


 


13.          Dispute Resolution, Governing Law and Venue


 


13.1         This
Agreement will be governed by and construed in accordance with the laws of the
Province of Alberta and the laws of Canada applicable therein. The parties
waive to the fullest extent possible any right to refer to the courts or to
appeal any matter required to be submitted for binding determination pursuant
to the arbitration provisions in Schedule 2, to the extent that such
waiver can validly be made.


 


13.2         Except
for matters which, by the express terms of this Agreement, are required to be
submitted to binding arbitration pursuant to Schedule 2 hereto, each
Contract Party agrees that it will submit to the non-exclusive jurisdiction of
the courts of the Province of Alberta for the resolution of any dispute or
disagreement arising under or relating to this Agreement.


 


13

















 


This Agreement is executed by
each of the Contract Parties on the date first stated on page 1.


 


 


	
  SIGNED by Johannes J. Hess,

  	
  )

  	
   

  
	
  for and on behalf of LEICA

  	
  )

  	
  /s/ Johannes J. Hess

  	
   

  
	
  GEOSYSTEMS A.G.

  	
  )

  	
  [Director]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Jonathan W. Ladd,

  	
  )

  	
   

  
	
  for and on behalf of NOVATEL 

  	
  )

  	
  /s/ Jonathan W. Ladd

  	
   

  
	
  INC.

  	
  )

  	
  [Chief Executive Officer]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Jean-Denis Roy,

  	
  )

  	
   

  
	
  for and on behalf of CMC 

  	
  )

  	
  /s/ Jean-Denis Roy

  	
   

  
	
  ELECTRONICS INC.

  	
  )

  	
  [Director]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Donald Lewtas,

  	
  )

  	
   

  
	
  for and on behalf of ONCAP L.P.

  	
  )

  	
  /s/ Donald Lewtas

  	
   

  
	
   

  	
  )

  	
  [Secretary]

  



 


14

















 


SCHEDULE 1


 


List of Leica
Competitors


 


The following represents the initial list of Leica
Competitors:


 


***


***


***


***


***


 


and each of
their Affiliates


 


The Parties will, acting reasonably, discuss,
on each anniversary date of this Agreement, whether the list of competitors
should be updated.


 


 












*** Certain information on this page has been
omitted and filed separately with the Securities and Exchange Commission.  Confidential treatment has been requested
with respect to the omitted portions.


 


15

















 


SCHEDULE 1A


 


List of
NovAtel Competitors


 


The following represents the initial list of
NovAtel Competitors:


 


***


***


***


***


 


and each of
their Affiliates


 


The Parties will, acting reasonably, discuss,
on each anniversary date of this Agreement, whether the list of competitors
should be updated.


 


 












*** Certain information on this page has been
omitted and filed separately with the Securities and Exchange Commission.  Confidential treatment has been requested
with respect to the omitted portions.


 


16

















 


SCHEDULE 2


 


Arbitration
Procedures


 


1.     In the event
that a party makes a referral for determination pursuant to Sections 2.3 and
4.3 of the Agreement, the arbitration will be governed by the Rules of the
London Court of International Arbitration for the time being in force which are
deemed incorporated by reference into this Schedule 2 (the “Rules”).  Prior to requesting arbitration, the Parties
shall make a good faith effort to resolve informally any such dispute.  A request for arbitration may not be filed
until fifteen (15) days have elapsed from a written request for such informal
resolution.


 


2.     The
arbitration tribunal will consist of three arbitrators appointed in accordance
with the Rules.  Each Party shall
nominate one (1) arbitrator and the third arbitrator, who will act as
chairperson of the arbitral tribunal, shall be nominated by agreement of the
arbitrators nominated by the Parties.


 


3.     The seat, or
legal place, of arbitration shall be London and the language to be used in the
arbitral proceedings shall be English.


 


17