0001193125-13-445747.txt : 20131119 0001193125-13-445747.hdr.sgml : 20131119 20131118175407 ACCESSION NUMBER: 0001193125-13-445747 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20131119 DATE AS OF CHANGE: 20131118 GROUP MEMBERS: ARSENAL HOLDCO I, S.A.R.L. GROUP MEMBERS: ARSENAL HOLDCO II, S.A.R.L. GROUP MEMBERS: FRANCISCO PARTNERS GP II (CAYMAN), L.P. GROUP MEMBERS: FRANCISCO PARTNERS GP II MANAGEMENT (CAYMAN) LTD GROUP MEMBERS: FRANCISCO PARTNERS GP II, L.P. GROUP MEMBERS: FRANCISCO PARTNERS II (CAYMAN), L.P. GROUP MEMBERS: FRANCISCO PARTNERS PARALLEL FUND II, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MITEL NETWORKS CORP CENTRAL INDEX KEY: 0001170534 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 000000000 FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79408 FILM NUMBER: 131228000 BUSINESS ADDRESS: STREET 1: 350 LEGGET DRIVE CITY: KANATA ONTARIO CANADA K2K 2W7 STATE: A6 ZIP: 00000 BUSINESS PHONE: 6135922122 MAIL ADDRESS: STREET 1: 350 LEGGET DRIVE CITY: KANATA ONTARIO CANADA K2K STATE: A6 ZIP: 00000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Francisco Partners GP II Management, LLC CENTRAL INDEX KEY: 0001368028 IRS NUMBER: 203134326 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE LETTERMAN DRIVE STREET 2: BUILDING C, SUITE 410 CITY: SAN FRANCISCO STATE: CA ZIP: 94129 BUSINESS PHONE: 415-418-2900 MAIL ADDRESS: STREET 1: ONE LETTERMAN DRIVE STREET 2: BUILDING C, SUITE 410 CITY: SAN FRANCISCO STATE: CA ZIP: 94129 SC 13D/A 1 d631514dsc13da.htm SC 13D/A SC 13D/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3)*

 

 

Mitel Networks Corporation

(Name of Issuer)

Common Shares

(Title of Class of Securities)

60671Q104

(CUSIP Number)

Francisco Partners GP II, L.P.

One Letterman Drive

Building C, Suite 410

San Francisco, California 94129

Attention: Benjamin Ball

Telephone: (415) 418-2900

with a copy to:

Michael J. Kennedy, Esq.

Shearman & Sterling LLP

Four Embarcadero Center, Suite 3800

San Francisco, California 94111

Telephone: (415) 616-1100

(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)

November 10, 2013

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

 

 

 

 

Page 1 of     Pages


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Arsenal Holdco I, S.a.r.l.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Luxembourg

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

0*

     8.   

Shared Voting Power

 

14,570,738

     9.   

Sole Dispositive Power

 

0*

   10.   

Shared Dispositive Power

 

14,570,738

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

14,570,738

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

27.1%**

14.  

Type of Reporting Person (See Instructions)

 

OO

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Arsenal Holdco II, S.a.r.l.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Luxembourg

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,590,136*

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,590,136*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,590,136*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

10.4%**

14.  

Type of Reporting Person (See Instructions)

 

OO

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Francisco Partners II (Cayman), L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

62,470*

     8.   

Shared Voting Power

 

14,508,268*

     9.   

Sole Dispositive Power

 

62,470*

   10.   

Shared Dispositive Power

 

14,508,268*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

14,570,738*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

27.1%**

14.  

Type of Reporting Person (See Instructions)

 

PN

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Francisco Partners GP II (Cayman), L.P.

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

0*

     8.   

Shared Voting Power

 

14,570,738*

     9.   

Sole Dispositive Power

 

0*

   10.   

Shared Dispositive Power

 

14,570,738*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

14,570,738*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

27.1%**

14.  

Type of Reporting Person (See Instructions)

 

PN

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Francisco Partners GP II Management (Cayman) Limited

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Cayman Islands

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

0*

     8.   

Shared Voting Power

 

14,570,738*

     9.   

Sole Dispositive Power

 

0*

   10.   

Shared Dispositive Power

 

14,570,738*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

14,570,738*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

27.1%**

14.  

Type of Reporting Person (See Instructions)

 

CO

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Francisco Partners Parallel Fund II, L.P.    20-4495943

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

858

     8.   

Shared Voting Power

 

5,589,278*

     9.   

Sole Dispositive Power

 

858

   10.   

Shared Dispositive Power

 

5,589,278*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,590,136*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

10.4%**

14.  

Type of Reporting Person (See Instructions)

 

PN

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Francisco Partners GP II, L.P.    20-2134312

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,590,136*

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,590,136*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,590,136*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

10.4%**

14.  

Type of Reporting Person (See Instructions)

 

PN

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


CUSIP No.  60671Q104   Page      of      Pages

 

  1.   

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)

 

Francisco Partners GP II Management, LLC    20-3134326

  2.  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3.  

SEC Use Only

 

  4.  

Source of Funds (See Instructions)

 

AF, OO (see Item 3)

  5.  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ¨

 

  6.  

Citizenship or Place of Organization

 

Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting Person With

 

     7.    

Sole Voting Power

 

0

     8.   

Shared Voting Power

 

5,590,136*

     9.   

Sole Dispositive Power

 

0

   10.   

Shared Dispositive Power

 

5,590,136*

11.  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

5,590,136*

12.  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ¨

 

13.  

Percent of Class Represented by Amount in Row (11)

 

10.4%**

14.  

Type of Reporting Person (See Instructions)

 

PN

 

* See Item 5.
** Based on 53,784,184 common shares outstanding as reported in the Company’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on August 29, 2013.


This Amendment No. 3 to Schedule 13D is being filed jointly by the following (each a “Reporting Person” and collectively, the “Reporting Persons”): (1) Arsenal Holdco I, S.a.r.l., a Luxembourg societe a responsabilite limitee (“Arsenal I”), (2) Arsenal Holdco II, S.a.r.l., a Luxembourg societe a responsabilite limitee (“Arsenal II”), (3) Francisco Partners II (Cayman), L.P., a Cayman exempted limited partnership (“FP II Cayman”), (4) Francisco Partners GP II (Cayman), L.P., a Cayman exempted limited partnership (“FP GP II Cayman”), (5) Francisco Partners GP II Management (Cayman) Limited, a Cayman exempted company (“FP Management Cayman”), (6) Francisco Partners Parallel Fund II, L.P., a Delaware limited partnership (“FP Parallel Fund”), (7) Francisco Partners GP II, L.P., a Delaware limited partnership (“FP GP II”), and (8) Francisco Partners GP II Management, LLC, a Delaware limited liability company (“FP Management”), to supplement and amend the Schedule 13D filed on behalf of the Reporting Persons. Each item below amends and supplements the information disclosed under the corresponding item of Schedule 13D. Capitalized terms defined in the Schedule 13D are used herein with their defined meaning.

 

Item 5. Interest in Securities of the Issuer

The response set forth in Item 5 of the Schedule 13D is hereby amended and supplemented by the following:

The following disclosure assumes there are 53,784,184 Common Shares outstanding, which the Company represented in its latest 10-Q filed on August 29, 2013 and representing the number of Common Shares outstanding as of August 27, 2013. All calculations of beneficial ownership and of the number of shares issuable upon the conversion or exercise of any securities are made as of November 17, 2013.

As of the date hereof, Arsenal I is deemed to beneficially own an aggregate of 14,570,738 Common Shares, which, based on calculations made in accordance with Rule 13d-3 of the Exchange Act, would constitute approximately 27.1% of the outstanding Common Shares, which includes 14,508,268 Common Shares owned by Arsenal I and 62,470 Common Shares owned by FP II Cayman. As of the date hereof, Arsenal II is deemed to beneficially own an aggregate of 5,590,136 Common Shares, which, based on calculations made in accordance with Rule 13d-3 of the Exchange Act, would constitute approximately 10.4% of the outstanding Common Shares, which includes 5,589,278 Common Shares owned by Arsenal II and 858 Common Shares owned by FP Parallel Fund.

Pursuant to Rule 13d-5 of the Exchange Act, by reason of the relationships described herein and in the Schedule 13D, Arsenal I and Arsenal II may be deemed to share beneficial ownership of the aggregate of 20,160,874 Common Shares, which, based on calculations made in accordance with Rule 13d-3 of the Exchange Act, would constitute approximately 37.5% of the outstanding Common Shares. The filing of this Statement shall not be construed as an admission that Arsenal I and Arsenal II beneficially own those shares held by the other Reporting Person, and Arsenal I and Arsenal II hereby disclaim such beneficial ownership.

The above does not include an additional 346,876 Common Shares issuable upon exercise of director options issued to director affiliates of Arsenal I and Arsenal II. This Statement shall not be construed as an admission that Arsenal I and Arsenal II beneficially own those shares held by the other Reporting Person, and Arsenal I and Arsenal II hereby disclaim such beneficial ownership.

FP II Cayman owns 62,470 Common Shares, additionally FP II Cayman, as the sole member of Arsenal I, FP GP II Cayman, as the general partner of FP II Cayman, and FP Management Cayman, as the general partner of FP GP II Cayman, may also be deemed to share voting and dispositive power of the Common Shares beneficially owned by Arsenal I. Except for the Common Shares held directly by FP II Cayman and to the extent of its interests as sole member of Arsenal I, FP II Cayman expressly disclaims such beneficial ownership. Except to the extent of its interests as general partner in FP II Cayman, FP GP II Cayman expressly disclaims such beneficial ownership. Except to the extent of its interest as general partner in FP GP II Cayman, FP Management Cayman expressly disclaims such beneficial ownership.

FP Parallel Fund owns 858 Common Shares, additionally, FP Parallel Fund, as the controlling member of Arsenal II, FP GP II, as the general partner of FP Parallel Fund, and FP Management, as the general partner of FP GP II, may also be deemed to share voting and dispositive power of the Common Shares beneficially owned by


Arsenal II. Except for the Common Shares held directly by FP Parallel Fund and to the extent of its interests as the controlling member of Arsenal II, FP Parallel Fund expressly disclaims such beneficial ownership. Except to the extent of its interests as general partner in FP Parallel Fund, FP GP II expressly disclaims such beneficial ownership. Except to the extent of its interest as general partner in FP GP, FP Management expressly disclaims such beneficial ownership.

Pursuant to Rule 13d-5 of the Exchange Act, by reason of the relationships described herein and in the Schedule 13D, Messrs. Ball, Deb, Stanton, Garfinkel, Geeslin, Golob, Perlman, Kowal, Shah, and Gallinelli and Ms. Silva may also be deemed to share voting and dispositive power of the Common Shares beneficially owned by Arsenal I and Arsenal II. Each of these individuals expressly disclaims such beneficial ownership.

The filing of this Amendment to Schedule 13D shall not be construed as an admission that any of the Reporting Persons share beneficial ownership for purposes of Section 13(d) of the Exchange Act.

 

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The response set forth in Item 6 of the Schedule 13D is hereby amended and supplemented by the following:

Voting Agreement

In connection with the Arrangement Agreement entered into on November 10, 2013, by and between Aastra Technologies Limited (“Aastra”) and the Company (the “Arrangement Agreement”), Aastra, the Company, Arsenal I and Arsenal II have entered into a Voting Support Agreement, as of November 10, 2013 (the “Voting Agreement”). Pursuant to the Voting Agreement, Arsenal I and Arsenal II agreed in their capacity as Mitel stockholders to: (i) vote all of the Subject Shares (as defined in the Voting Agreement) held by them in favor of the approval, consent, ratification and adoption of the Arrangement Agreement and the transactions contemplated by the Arrangement Agreement, subject to certain customary exceptions; and (ii) not to sell, transfer, gift, assign, convey, pledge, hypothecate, encumber, option, grant a security interest in or otherwise dispose of any right or interest in any Subject Shares, subject to certain exceptions. Additionally, Arsenal I and Arsenal II have agreed for a period of 180 days following the effective date of the consummation of the transactions contemplated by the Arrangement Agreement not to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, 18,144,786 Subject Shares, subject to certain exceptions. The Reporting Persons have not received any monetary consideration as a result of Arsenal I or Arsenal II entering into the Voting Agreement and have not purchased any securities of Mitel in connection with the transactions described herein.

The foregoing descriptions of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the Voting Agreement, a copy of which is attached hereto as Exhibit A, and which is incorporated herein by reference. This Amendment No.3 does not purport to amend, qualify or in any way modify the Voting Agreement.

 

Item 7. Material to be Filed as Exhibits.

 

99.1 Voting Support Agreement dated as of November 10, 2013, by and between Aastra Technolgies Limited, Mitel Networks Corporation, Arsenal Holdco I, S.a.r.l. and Arsenal Holdco II, S.a.r.l.


SIGNATURE

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: November 17, 2013

ARSENAL HOLDCO I, S.A.R.L.
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Manager
ARSENAL HOLDCO II, S.A.R.L.
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Manager
FRANCISCO PARTNERS II (CAYMAN), L.P.
By:   FRANCISCO PARTNERS GP II (CAYMAN), L.P., its General Partner
By:   FRANCISCO PARTNERS GP II MANAGEMENT (CAYMAN) LIMITED, its General Partner
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Director
FRANCISCO PARTNERS GP II (CAYMAN), L.P.
By:   FRANCISCO PARTNERS GP II MANAGEMENT (CAYMAN) LIMITED, its General Partner
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Director
FRANCISCO PARTNERS GP II MANAGEMENT (CAYMAN) LIMITED
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Director
FRANCISCO PARTNERS PARALLEL FUND II, L.P.
By:   FRANCISCO PARTNERS GP II, L.P., its General Partner
By:   FRANCISCO PARTNERS GP II MANAGEMENT, LLC, its General Partner
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Managing Member


FRANCISCO PARTNERS GP II, L.P.
By:   FRANCISCO PARTNERS GP II MANAGEMENT, LLC, its General Partner
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Managing Member
FRANCISCO PARTNERS GP II MANAGEMENT, LLC
By:  

/s/ Benjamin Ball

Name:   Benjamin Ball
Title:   Managing Member
EX-99.1 2 d631514dex991.htm EX-99.1 EX-99.1

Exhibit 99.1

VOTING SUPPORT AGREEMENT

THIS AGREEMENT is made as of November 10, 2013

BETWEEN:

AASTRA TECHNOLOGIES LIMITED, a corporation existing under the laws of Canada (“Aastra)

- and -

MITEL NETWORKS CORPORATION, a corporation existing under the laws of Canada (“Mitel)

- and -

ARSENAL HOLDCO I, S.A.R.L., a company existing under the laws of Luxembourg ( “Arsenal I)

- and -

ARSENAL HOLDCO II, S.A.R.L., a company existing under the laws of Luxembourg ( “Arsenal II and together with Arsenal I, the “Securityholders and each, a “Securityholder)

RECITALS:

 

1. The Securityholders are the beneficial owners of, or have control or direction over, the Subject Shares.

 

2. The Securityholders understand that Aastra and Mitel are, concurrently with the execution and delivery of this Agreement, executing and delivering the Arrangement Agreement.

 

3. This Agreement sets out the terms and conditions of the agreement of the Securityholders to abide by the covenants in respect of the Subject Shares and the other restrictions and covenants set forth herein.

NOW THEREFORE, in consideration of the mutual covenants in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) the parties hereto agree as follows:


ARTICLE 1

INTERPRETATION

 

1.1 Definitions

Capitalized terms used herein and not otherwise defined have the meanings ascribed thereto in the Arrangement Agreement. In this Agreement, including the recitals:

Arrangement Agreement” means the arrangement agreement dated as of the date hereof between Aastra and Mitel, as the same may be amended in accordance with its terms;

Business Day” means any day, other than a Saturday, a Sunday or a statutory or civic holiday in Toronto, Ontario;

Contracts” means contracts, licences, leases, agreements, obligations, promises, undertakings, understandings, arrangements, documents, commitments, entitlements or engagements to which a Securityholder is a party or by which it is bound or under which a Securityholder has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied), and includes any quotations, orders, proposals or tenders which remain open for acceptance and warranties and guarantees;

Convertible Securities” has the meaning ascribed thereto in Section 2.1(b);

Expiry Time” has the meaning ascribed thereto in Section 3.1(a);

“Locked-Up Securities” has the meaning ascribed thereto in Section 3.1(a);

Notice” has the meaning ascribed thereto in Section 4.7;

Subject Shares” means all Mitel Shares beneficially owned or controlled, directly or indirectly, by the Securityholders and their Affiliates as at the date hereof, and shall further include any Mitel Shares acquired or over which control is acquired by the Securityholders after the date hereof; and

Transfer” has the meaning ascribed thereto in Section 3.1(a).

 

1.2 Singular; Plural, etc.

In this Agreement, words importing the singular number include the plural and vice versa and words importing gender include the masculine, feminine and neuter genders.

 

1.3 Currency

Unless otherwise expressly stated, all references to currency herein shall be deemed to be references to Canadian currency.

 

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1.4 Headings, etc.

The division of this Agreement into Articles, Sections and Schedules and the insertion of the recitals and headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement and, unless otherwise stated, all references in this Agreement or in the Schedules hereto to Articles, Sections and Schedules refer to Articles, Sections and Schedules of and to this Agreement or of the Schedules in which such reference is made, as applicable.

 

1.5 Date for any Action

In the event that any date on which any action is required to be taken hereunder by any of the parties is not a Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day.

 

1.6 Governing Law

This Agreement shall be governed, including as to validity, interpretation and effect, by the laws of the Province of Ontario and the laws of Canada applicable therein, and shall be construed and treated in all respects as an Ontario contract. Each of the parties hereby irrevocably attorns to the non-exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters arising under and in relation to this Agreement.

 

1.7 Incorporation of Schedules

The Schedules attached hereto and described below shall, for all purposes hereof, form an integral part of this Agreement.

Schedule A – Subject Shares

Schedule B – Form of Written Consent

ARTICLE 2

REPRESENTATIONS AND WARRANTIES

 

2.1 Representations and Warranties of the Securityholders

The Securityholders, jointly and severally, represent and warrant to Aastra and Mitel (and acknowledge that Aastra and Mitel are relying on these representations and warranties in entering into the transactions contemplated hereby and by the Arrangement Agreement) the matters set out below:

 

  (a)

The Securityholders have the corporate or organizational power to execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Securityholders and constitutes a valid and binding obligation of the Securityholders enforceable against them in accordance with its terms, subject to

 

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  bankruptcy, insolvency and other Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction.;

 

  (b) The Mitel Shares as set forth in Schedule A represent all the Mitel Shares or securities exercisable or convertible into or exchangeable for Mitel Shares (“Convertible Securities) held of record or beneficially owned, directly or indirectly, or controlled or directed by the Securityholders. Other than the securities set forth in Schedule A, neither the Securityholders nor any of their Affiliates owns of record or beneficially, or exercises control or direction over, directly or indirectly, or has any agreement or option, or right or privilege (whether by Law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase or acquisition by the Securityholders or any of their Affiliates or transfer to the Securityholders or any of their Affiliates of additional Mitel Shares or Convertible Securities;

 

  (c) The Securityholders are, and will continue to be until the Effective Time, the sole beneficial owners of the Subject Shares, with good title thereto, free and clear of all encumbrances, liens, restrictions (other than resale, vesting or other similar restrictions), charges, claims and rights of others;

 

  (d) The Securityholders have the sole right to sell and vote or direct the sale and voting of the Subject Shares;

 

  (e) No Person has any agreement or option, or any right or privilege (whether by Laws, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, acquisition or transfer of any of the Subject Shares or any interest therein or right thereto;

 

  (f) None of the Subject Shares is subject to any power of attorney, proxy, voting trust, vote pooling or other agreement with respect to the right to vote the Subject Shares, call meetings of any of Mitel’s securityholders or give shareholder consents or approvals of any kind, other than as set out in the Shareholders Agreement dated as of April 27, 2010 between, among others, Mitel and Dr. Matthews;

 

  (g) None of the execution and delivery by the Securityholders of this Agreement or the completion of the transactions contemplated hereby or the compliance by the Securityholders with the Securityholders’ obligations hereunder will violate, contravene, result in any breach of, or be in conflict with, or constitute a default under, or create a state of facts which after notice or lapse of time or both would constitute a default under, any term or provision of: (i) any constating or governing documents, by-laws or resolutions of the Securityholders; (ii) any Contract to which the Securityholders are a party or by which the Securityholders or any of the property or assets of the Securityholders are bound; (iii) any judgment, decree, order or award of any Governmental Entity; or (iv) subject to receipt of any Regulatory Approvals as contemplated in the Arrangement Agreement, any applicable Laws;

 

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  (h) No consent, waiver, approval, authorization, order, exemption, registration, licence or declaration of or by, or filing with, or notification to any Governmental Entity which has not been made or obtained is required to be made or obtained by the Securityholders in connection with the execution and delivery by the Securityholders and enforcement against the Securityholders of this Agreement or the consummation of any transactions provided for herein other than any filings under insider or early warning requirements of applicable securities laws (provided that the Securityholders make no representations or warranties with respect to the consents, waivers, approvals, authorizations or declarations of or by, or filings with, or notices to any Governmental Entities or other third parties on the part of Aastra or Mitel necessary for the consummation of the transactions contemplated by the Arrangement Agreement); and

 

  (i) There is no private or governmental action, suit, claim, arbitration, investigation or other proceeding in progress or pending before any Governmental Entity, or, to the knowledge of the Securityholders, threatened against the Securityholders or any of their Affiliates or any of their directors or officers (in their capacities as such) that, individually or in the aggregate, could adversely affect in any manner the Securityholders’ ability to enter into this Agreement or perform their obligations hereunder or the title of the Securityholders to any of the Subject Shares. There is no judgment, decree or order against the Securityholders or any of their Affiliates or any of their directors or officers (in their capacities as such) that could prevent, enjoin, alter, delay or adversely affect in any manner the ability of the Securityholders to enter into this Agreement, to perform their obligations under this Agreement or the title of the Securityholders to any of the Subject Shares.

 

2.2 Representations and Warranties of Aastra

Aastra represents and warrants to the Securityholders (and acknowledges that the Securityholders are relying on these representations and warranties in completing the transactions contemplated hereby and by the Arrangement Agreement) that Aastra is a corporation duly incorporated and validly existing under the laws of the Canada and has all necessary corporate power, authority and capacity to enter into this Agreement and to carry out its obligations under this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of Aastra. This Agreement constitutes a valid and binding obligation of Aastra enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction.

 

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2.3 Representations and Warranties of Mitel

Mitel represents and warrants to the Securityholders (and acknowledges that the Securityholders are relying on these representations and warranties in completing the transactions contemplated hereby and by the Arrangement Agreement) that Mitel is a corporation duly incorporated and validly existing under the laws of the Canada and has all necessary corporate power, authority and capacity to enter into this Agreement and to carry out its obligations under this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of Mitel. This Agreement constitutes a valid and binding obligation of Mitel enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction.

ARTICLE 3

COVENANTS

 

3.1 Covenants of the Securityholders

 

  (a) The Securityholders hereby irrevocably and unconditionally covenant with Aastra and Mitel that from the date of this Agreement until the termination of this Agreement in accordance with its terms (the “Expiry Time), the Securityholders shall not (A) sell, transfer, gift, assign, convey, pledge, hypothecate, encumber, option, grant a security interest in or otherwise dispose of any right or interest in (including by way of deposit or tender under any take-over bid) (any such event, a “Transfer) any of the Subject Shares, or enter into any agreement, arrangement or understanding in connection therewith (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), without having first obtained the prior written consent of Aastra and Mitel, provided that the Securityholders may Transfer any of the Subject Shares to an entity controlled by them without such consent as long as the transferee assumes all of the obligations of the Securityholders hereunder in respect of the Subject Shares so transferred, or (B) other than as set forth herein, grant any proxies or powers of attorney, deposit any Subject Shares into a voting trust, in any way transfer any of the voting rights associated with any of the Subject Shares other than to an entity controlled by them, provided that such entity agrees to abide by the terms of this Agreement, or enter into a voting agreement, understanding or arrangement with respect to the right to vote the Subject Shares, call meetings of Mitel Shareholders or give shareholder consents or approvals of any kind with respect to any Subject Shares

 

  (b)

The Securityholders hereby covenant, undertake and agree from time to time until the Expiry Time to vote (or cause to be voted) all the Subject Shares, at any meeting of any of holders of Mitel Shares at which the Securityholders are entitled

 

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  to vote and in any action by written consent of the holders of Mitel Shares (including, without limitation, a consent addressed to the TSX and NASDAQ confirming that such holders are in favour of the Arrangement and the issuance of the Consideration Shares and Option Shares, which consent shall be substantially in the form attached as Schedule B hereto, with such changes as may be required by the TSX or NASDAQ):

 

  (i) in favour of the approval, consent, ratification and adoption of the Arrangement and the transactions contemplated by the Arrangement Agreement (and any actions required for the consummation of the transactions contemplated by the Arrangement Agreement, including the issuance of the Consideration Shares and the Option Shares in connection therewith); and

 

  (ii) against (A) any merger, reorganization, consolidation, amalgamation, arrangement, business combination, share issuance (other than the Consideration Shares and Option Shares), or share exchange, liquidation, dissolution, recapitalization, or similar transaction involving Mitel; (B) any sale, lease or transfer of any significant part of the assets of Mitel; (C) any Acquisition Proposal; (D) any material change in the capitalization of Mitel (other than in connection with the issuance of the Consideration Shares and Option Shares) or the corporate structure or constating documents of Mitel; (E) any action that would reasonably be expected to impede, delay, interfere with, or discourage the transactions contemplated by the Arrangement Agreement; and (F) any action that is intended to result in a Mitel Material Adverse Effect.

In connection with the foregoing, subject to this Section 3.1(b), the Securityholders hereby irrevocably and unconditionally agree, upon the request of Mitel or Aastra, to (A) deposit an irrevocable proxy, duly completed and executed in respect of all of the Subject Shares at least 10 days prior to any meeting of the holders of Mitel Shares to consider any of the matters identified in paragraph (i) of this Section 3.1(b), voting all such Subject Shares in favour of the applicable matter(s), and (B) deliver to Mitel or Aastra, as applicable, an irrevocable written consent, duly completed and executed in respect of all of the Subject Shares within 10 days of any request by Mitel or Aastra to provide such written consent in support of any of the matters identified in paragraph (i) of this Section 3.1(b) (including, without limitation, a consent addressed to the TSX and NASDAQ confirming that such holder is in favour of the Arrangement and the issuance of the Consideration Shares and Option Shares, which consent shall be substantially in the form attached as Schedule B hereto, with such changes as may be required by the TSX or NASDAQ). The Securityholders hereby irrevocably and unconditionally agree that neither it nor any person on its behalf will take any action to withdraw, amend or invalidate any proxy or consent deposited by the Securityholders pursuant to this Agreement notwithstanding any statutory or other rights which the Securityholders might have unless this Agreement is terminated in accordance with Section 4.1.

 

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  (c) The Securityholders hereby covenant, undertake and agree until the date that is 180 days following the Effective Date (the “Lock-Up Period), the Securityholders will not, without the prior written consent of Aastra,

 

  (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, 18,144,786 of the Subject Shares (the Locked-Up Securities);

 

  (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Locked-Up Securities, whether any such transaction is to be settled by delivery of Mitel Shares or such other securities, in cash or otherwise; or

 

  (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii).

The Securityholders hereby authorize Mitel and its transfer agent, during the Lock-Up Period, to decline the transfer of, or to note stop transfer restrictions on the stock register and other records relating to the Locked-Up Securities of which the Securityholders are the registered holder, and, with respect to Locked-Up Securities of which the Securityholders are the beneficial owner but not the registered holder, the Securityholders hereby agree to cause such registered holder to authorize Mitel and its transfer agent, during the Lock-Up Period, to decline the transfer of or to note stop transfer restrictions on the stock register and other records relating to such Locked-Up Securities. Notwithstanding the foregoing, if any other party is released, in full or in part, from the lock-up restrictions of any similar voting support agreement related to the transactions contemplated by the Arrangement Agreement, then the Securityholders shall be released in the same manner from the restrictions of this Agreement (i.e., in the case where shares of such individual or entity are released from lock-up restrictions, the same percentage of shares held by the Securityholders shall be released from the restrictions of this Agreement on the same terms).

 

  (d)

The Securityholders agree that, until the Expiry Time, neither the Securityholders nor any of their Representatives will, directly or indirectly: (A) solicit, initiate, encourage or otherwise facilitate (including by way of entering into any agreement, arrangement or understanding) inquiries, submissions of proposals or offers from, or provide information to, any other person, entity or group (other than Aastra or Mitel) relating to any Acquisition Proposal or potential Acquisition Proposal, (B) participate in any discussions or negotiations regarding any Acquisition Proposal, or (C) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement, arrangement or understanding related to

 

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  any Acquisition Proposal. Nothing hereunder shall prevent any shareholder, director or officer of the Securityholders who is a director or officer of Mitel from doing any act or thing that such director or officer is properly obligated to do in such capacity.

 

  (e) The Securityholders hereby agree to:

 

  (i) immediately cease and cause to be terminated any and all solicitations, encouragements, existing discussions and negotiations, if any, with any person or group or any agent or representative of such person or group before the date of this Agreement with respect to any Acquisition Proposal or potential Acquisition Proposal; and

 

  (ii) immediately (and in any event within 24 hours following receipt) notify Mitel of any Acquisition Proposal or inquiry in respect of a potential Acquisition Proposal of which the Securityholders or, to the knowledge of the Securityholders, any of the shareholders, directors or officers of the Securityholders becomes aware. Such notification shall be made orally and in writing and shall include the identity of the person making such Acquisition Proposal or inquiry, a description of the material terms and conditions thereof, together with a copy of all documentation relating to such Acquisition Proposal or inquiry.

 

  (f) The Securityholders hereby irrevocably waive any rights of appraisal or rights of dissent that the Securityholders may have arising from the transactions contemplated by the Arrangement Agreement.

 

  (g) The Securityholders hereby agree, until the Expiry Time, to not make any statements which may reasonably be construed as being against the transactions contemplated by the Arrangement Agreement or any aspect thereof and to not bring, or threaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding, delaying or varying such transactions or any aspect thereof.

 

  (h) The Securityholders agree to promptly notify Aastra and Mitel of any acquisitions by the Securityholders or any of its respective Affiliates of any Mitel Shares after the date hereof. Any such securities shall be subject to the terms of this Agreement as though they were Subject Shares owned by the Securityholders on the date hereof.

 

  (i) The Securityholders agree that, until the Expiry Time, it will not (i) exercise any securityholder rights or remedies available at common law or pursuant to applicable securities legislation; or (ii) take any other action of any kind, in each case which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of, the transactions contemplated by the Arrangement Agreement.

 

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  (j) The Securityholders hereby irrevocably consent to:

 

  (i) details of this Agreement being set out in any information circular and court documents produced by Aastra, Mitel or any of their respective Affiliates in connection with the transactions contemplated by this Agreement and the Arrangement Agreement;

 

  (ii) this Agreement being made publicly available, including by filing on SEDAR.

 

  (k) Except as required by applicable Law or applicable stock exchange requirements, the Securityholders shall not make any public announcement or statement with respect to the transactions contemplated herein or pursuant to the Arrangement Agreement without the prior written approval of Mitel.

ARTICLE 4

GENERAL

 

4.1 Termination

This Agreement shall terminate and be of no further force or effect only upon the earliest of:

 

  (a) the written agreement of Aastra, Mitel and each Securityholder;

 

  (b) the termination of the Arrangement Agreement in accordance with its terms or the amendment of the Arrangement Agreement in any manner that the Securityholders determine, in the exercise of their sole discretion, would reasonably be expected to have an adverse effect on their rights or interests in the Mitel Shares;

 

  (c) the Effective Time; or

 

  (d) the Outside Date.

 

4.2 Time of the Essence

Any date, time or period referred to in this Agreement shall be of the essence, except to the extent to which the Securityholders, Aastra and Mitel agree in writing to vary any date, time or period, in which event the varied date, time or period shall be of the essence.

 

4.3 Equitable Relief

The parties agree that irreparable harm will occur for which money damages will not be an adequate remedy at Law in the event that any of the provisions of this Agreement are not performed by the Securityholders in accordance with their terms or are otherwise breached. It is accordingly agreed that Aastra and Mitel shall be entitled to an injunction or injunctions and other equitable relief to prevent breaches or threatened breaches of the provisions of this Agreement by the Securityholders and shall be entitled to obtain specific performance by the

 

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Securityholders of any such provisions. The Securityholders hereby agree not to seek the posting of any security bond or other assurance in respect of such injunctive or other equitable relief. Such remedies will not be the exclusive remedies for any breach of this Agreement and will be in addition to all other remedies available at Law or equity.

 

4.4 Fiduciary Duties

Aastra and Mitel acknowledge that the Securityholders are not making any agreement or understanding herein in any capacity other than in their capacity as securityholders of Mitel. Nothing herein shall restrict the Securityholders from taking in good faith any actions necessary to discharge such securityholders’ fiduciary duties as a director or officer of Mitel.

 

4.5 Waiver; Amendment

Each party hereto agrees and confirms that any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Securityholders, Aastra and Mitel or in the case of a waiver, by the party against whom the waiver is to be effective and no failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise.

 

4.6 Entire Agreement

This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings among the parties with respect thereto.

 

4.7 Notices

Any notice, consent or approval required or permitted to be given in connection with this Agreement (in this Section referred to as a “Notice”) shall be in writing and shall be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery), or if transmitted by facsimile or e-mail:

 

(a)       if to Mitel:
  Mitel Networks Corporation
  350 Legget Drive
  Kanata, ON, Canada K2K 2W7
  Attention:    Steve Spooner   
  Facsimile:    (613) 592-7807   
  Email:    steve_spooner@mitel.com   
  with a copy (which shall not constitute notice) to:
  Osler, Hoskin & Harcourt LLP   

 

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  1 First Canadian Place, Suite 6600   
  Toronto, Ontario M5X 1B8   
  Attention:    Craig Wright and Jeremy Fraiberg   
  Facsimile:    (416) 862-6666   
  Email:    cwright@osler.com and jfraiberg@osler.com   
(b)       if to Aastra:   
  Aastra Technologies Limited   
  155 Snow Boulevard   
  Concord, Ontario, Canada L4K 4N9   
  Attention:    Francis Shen   
  Facsimile:    (905) 760-4238   
  Email:    fshen@aastra.com   
  with a copy (which shall not constitute notice) to:   
  McCarthy Tétrault LLP   
  Suite 5300, TD Bank Tower   
  Box 48, 66 Wellington Street West   
  Toronto ON M5K 1E6   
  Attention:    Gary Girvan and George Takach   
  Facsimile:    (416) 868-0673   
  Email:    ggirvan@mccarthy.ca and gtakach@mccarthy.ca   
(c)       if to the Securityholder:   
  One Letterman Drive   
  Building C—Suite 410   
  San Francisco, California 94129   
  Attention: Ben Ball   
  Facsimile: (415) 418-2900   
  E-mail: ball@franciscopartners.com   
  With a copy to:   
  Shearman & Sterling LLP   
  Four Ebarcadero Center   
  San Francisco, California 94111-5994   
  Attention: Michael J. Kennedy   
  Facsimile: (415) 616-1100   
  E-mail: mkennedy@shearman.com   

 

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Any Notice delivered or transmitted to a party as provided above shall be deemed to have been given and received on the day it is delivered or transmitted, provided that it is delivered or transmitted on a Business Day prior to 5:00 p.m. local time in the place of delivery or receipt. If the Notice is delivered or transmitted after 5:00 p.m. local time or if the day is not a Business Day, then the Notice shall be deemed to have been given and received on the next Business Day.

Either party hereto may, from time to time, change its address by giving Notice to the other parties in accordance with the provisions of this Section 4.7.

 

4.8 Severability

If, in any jurisdiction, any provision of this Agreement or its application to any party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provisions of this Agreement and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to other parties or circumstances. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.

 

4.9 Successors and Assigns

The provisions of this Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors, permitted assigns and legal personal representatives, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this Agreement without the prior written consent of the other parties hereto, except that Aastra may assign, delegate or otherwise transfer any of its rights, interests or obligations under this Agreement to an Affiliate without reducing its own obligations hereunder without the consent of the Securityholders.

 

4.10 Expenses

Each party shall pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated by this Agreement.

 

4.11 Independent Legal Advice

The Securityholders acknowledge that they have been afforded the opportunity to obtain independent legal advice and confirm by the execution of this Agreement that they have either done so or waived its right to do so in connection with the entering into of this Agreement.

 

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4.12 Further Assurances

The parties hereto shall, with reasonable diligence, do all things and provide all such reasonable assurances as may be required to consummate the transactions contemplated by this Agreement, and each party shall provide such further documents or instruments required by the other party as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions, whether before or after the Effective Time.

 

4.13 Execution and Delivery

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The Parties shall be entitled to rely upon delivery of an executed facsimile or similar executed electronic copy of this Agreement, and such facsimile or similar executed electronic copy shall be legally effective to create a valid and binding agreement between the Parties.

[Signature page follows.]

 

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IN WITNESS OF WHICH the parties have executed this Agreement.

 

AASTRA TECHNOLOGIES LIMITED
By:  

/s/ Anthony Shen

  Name: Anthony Shen
  Title: Co-Chief Executive Officer
MITEL NETWORKS CORPORATION
By:  

/s/ Steve Spooner

  Name: Steve Spooner
  Title: Chief Financial Officer
ARSENAL HOLDCO I, S.A.R.L.
By:  

/s/ Benjamin Ball

  Name: Benjamin Ball
  Title: Partner
ARSENAL HOLDCO II, S.A.R.L.
By:  

/s/ Benjamin Ball

  Name: Benjamin Ball
  Title: Partner

 

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SCHEDULE “A”

 

Registered Owner

 

Beneficial Owner

 

Mitel Shares

Arsenal Holdco I, S.A.R.L.   Arsenal Holdco I, S.A.R.L.   14,508,268
Arsenal Holdco II, S.A.R.L.   Arsenal Holdco II, S.A.R.L.   5,589,278

 

A-1


SCHEDULE “B”

FORM OF WRITTEN CONSENT

(see attached)