THIS AMENDED AND RESTATED WARRANT REPURCHASE, VOTING AND CONVERSION AGREEMENT is made as of the 15th day of August, 2007. BETWEEN:
Exhibit
9
THIS
AMENDED AND RESTATED WARRANT REPURCHASE, VOTING AND
CONVERSION AGREEMENT is made as of the 15th
day of August,
2007.
BETWEEN:
▇▇▇▇▇▇
▇▇▇▇▇▇ CORPORATION, a corporation incorporated under the laws of
Newfoundland and Labrador (“WCC”)
-
and –
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, an individual residing in the City of Ottawa, Province of
Ontario (“▇▇▇▇▇▇▇▇”)
-
and –
CELTIC
TECH JET LIMITED, a corporation incorporated under the laws of Canada
(“CTJL”)
(collectively,
WCC, ▇▇▇▇▇▇▇▇ and CTJL are referred to herein as the
“Shareholders”)
-
and -
MITEL
NETWORKS CORPORATION, a corporation governed by the laws of
Canada,
(“Mitel”)
RECITALS:
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A.
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WCC
is the beneficial owner of 90,000,000 Common Shares (the “WCC
Common Shares”) in the capital of Mitel; ▇▇▇▇▇▇▇▇ is the
beneficial owner of 40,897,750 issued and outstanding Class B convertible
preferred shares, Series 1 shares (the “Series B Shares”)
in the capital of Mitel; and, CTJL is the beneficial owner of 4,555,169
Common Shares (the “CTJL Common Shares”) in the capital
of Mitel.
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2 -
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B.
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WCC
holds 15,000 warrants (the “Warrants”) to acquire a
certain number of Common Shares, automatically exerciseable upon
the
occurrence of certain events involving Mitel or its shareholders,
such
Warrants to be transferred to ▇▇▇▇▇▇▇▇ prior to the closing of the
Merger
described in Recital D below.
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▇.
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▇▇▇▇▇▇▇▇
intends to transfer the Series B Shares to WCC prior to the conversion
of
the Series B Shares to Common Shares in accordance with Section 3 of
this Agreement.
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D.
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Mitel
has agreed to acquire indirectly all of the outstanding stock of
Inter-Tel
(Delaware), Incorporated (“Inter-Tel”) (the
“Merger”) pursuant to the terms of an agreement and plan
of merger between Inter-Tel, Mitel and a subsidiary of Mitel dated
April 26, 2007.
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E.
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In
contemplation of the Merger, WCC has agreed to convert, in accordance
with
their terms, the Series B Shares into 40,897,750 Common Shares and,
in
connection with such conversion, to receive an additional 27,892,484
Common Shares pursuant to Section 5.4 of Schedule B to the articles
of amendment of Mitel filed April 23, 2004 (the
“Articles”).
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F.
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In
further contemplation of the Merger, ▇▇▇▇▇▇▇▇ has agreed to sell
to, and
Mitel has agreed to repurchase and cancel the Warrants, at the purchase
price and on the terms and conditions set forth in this
Agreement.
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G.
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Also
in contemplation of the Merger, WCC, ▇▇▇▇▇▇▇▇, CTJL and Mitel have
agreed
to take certain other actions as set forth in this
Agreement.
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THEREFORE,
the parties agree as follows:
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1.
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Definitions
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Whenever
used in this Agreement, the following words and terms have the meanings set
out
below:
“Affiliate”
has the meaning set forth in the Canada Business Corporations
Act;
“Agreement”
means this Amended and Restated Warrant Repurchase, Voting and Conversion
Agreement, including all schedules, and all amendments or restatements, as
permitted, and references to “Article” or
“Section” mean the specified Article or Section
of this
Agreement;
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“Business
Day” means any day on which the Canadian chartered banks are open for
business in the City of Ottawa, excluding Saturdays and Sundays;
“Class
1 Shares” means the Class 1 Shares in the capital of Mitel which will
be created prior to the completion of the Merger;
“Closing
Date” has the meaning set forth in Section 2;
“Common
Shares” means the common shares in the capital of Mitel;
“Encumbrances”
means pledges, liens, charges, security interests, leases, title retention
agreements, mortgages, restrictions, developments or similar agreements,
easements, rights-of-way, title defects, options or adverse claims, or
encumbrances of any kind or character whatsoever; and
“Parties”
means WCC, ▇▇▇▇▇▇▇▇, CTJL and Mitel, collectively, and “Party” means any one of
them.
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2.
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Notification
of Closing of the Merger
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At
least ten (10) Business Days prior to the date of closing (the “Closing
Date”) of the Merger, Mitel shall provide written notice (the
“Mitel Notice”) of such Closing Date to the Shareholders, which
notice shall also include reference to the date on or before which WCC is
required to deliver, in connection with the Merger, to Mitel WCC’s notice of
conversion pursuant to Section 5.8 of Schedule B to the
Articles.
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3.
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Agreement
to Convert the Series B
Shares
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WCC
hereby agrees to convert to Common Shares the Series B Shares in accordance
with
Section 5.1 of Schedule B to the Articles immediately prior to and conditional
upon the closing of the Merger, in respect of which conversion WCC shall receive
from Mitel 40,897,750 Common Shares and an additional 27,892,484 Common Shares
pursuant to Section 5.4 of Schedule B to the Articles. At least
six (6) Business Days prior to the Closing Date, WCC shall
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deliver
to Mitel a written conversion notice (the “WCC Conversion
Notice”) in accordance with Section 5.8 of Schedule B to the
Articles regarding the conversion of the Series B Shares. The WCC
Conversion Notice shall be in the form attached to this Agreement as Schedule
“A”.
▇▇▇▇▇▇▇▇
represents and warrants to Mitel that he shall have completed the transfer
of
the Series B Shares to WCC at least ten (10) Business Days prior to the
Closing Date in order to enable WCC to fulfil its obligations pursuant to this
Section 3.
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4.
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Repurchase
of Warrants and Payment of Purchase
Price
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(a)
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At
least six (6) Business Days prior to the Closing Date, ▇▇▇▇▇▇▇▇ shall
deliver to Mitel for cancellation the original warrant certificate
representing the Warrants.
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(b)
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Immediately
prior to and conditional upon the closing of the Merger, ▇▇▇▇▇▇▇▇
shall
sell, assign and transfer to Mitel and Mitel shall repurchase for
cancellation from ▇▇▇▇▇▇▇▇, as of the Closing Date, the Warrants
for an
aggregate purchase price equal to TWENTY MILLION DOLLARS ($20,000,000)
set
out as follows: (a) SIX MILLION FIVE HUNDRED THOUSAND DOLLARS
($6,500,000); (b) 13,500 Class 1 Shares; and (c) warrants to acquire
1,022,996 Common Shares at an exercise price of US$1.32 (the
“Purchase Price”).
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(c)
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Mitel
shall pay and satisfy the Purchase Price on the Closing Date (a)
in
respect of the cash portion of the Purchase Price, by way of certified
cheque drawn in the name of or wire transfer to the account of ▇▇▇▇▇▇▇▇
(without withholding, deduction or set off in any manner whatsoever
other
than any withholding required or expressly permitted by applicable
tax
law); (b) the issuance of 13,500 Class 1 Shares; and (c) a warrant
to
acquire 1,022,996 Common Shares at an exercise price of US$1.32 (the
“Common Share Warrant”). In the event ▇▇▇▇▇▇▇▇ requires
satisfaction of the cash portion of the Purchase Price by way of
wire
transfer, ▇▇▇▇▇▇▇▇ shall provide to Mitel in writing its wire transfer
coordinates at least three (3) Business Days prior to the Closing
Date,
together with the coordinates of a contact person at the ▇▇▇▇▇▇▇▇’ bank
authorized to make the necessary arrangements with regards to such
wire
transfer.
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5 -
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(d)
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As
and from the Closing Date, the Warrants, and all of ▇▇▇▇▇▇▇▇’ rights and
entitlements thereunder, shall be terminated in their
entirety.
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(e)
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WCC
represents and warrants to Mitel that it shall have completed the
transfer
of the Warrants to ▇▇▇▇▇▇▇▇ at least ten (10) Business Days prior
to the
Closing Date in order to enable ▇▇▇▇▇▇▇▇ to fulfil his obligations
pursuant to this Section 4.
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5.
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Failure
to Close the Merger
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In
the event that the closing of the Merger has not occurred within thirty (30)
days of the Closing Date referenced in the Mitel Notice, Mitel shall forthwith
return to ▇▇▇▇▇▇▇▇ the original warrant certificate evidencing the Warrants
and
to WCC the WCC Conversion Notice.
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6.
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Agreement
to Vote
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Each
of WCC, ▇▇▇▇▇▇▇▇ and CTJL hereby agrees to vote (or cause to be voted) the
Common Shares or Series B Shares held by them, as the case may be, whether
by
way of vote, in person or by proxy, at any shareholders meeting or by way of
written consent, in favour of, and to take all other actions necessary or
desirable to approve the amendment of the articles of Mitel to:
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(a)
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create
a new class of shares in the capital of Mitel, the Class 1 convertible
preferred shares, substantially on the terms and conditions set forth
in
the draft subscription agreement provided to the Shareholders as
Schedule
A to the Consent and Waiver executed by the Shareholders on or about
the
date hereof; and
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(b)
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after
the repurchase of the Warrants and certain shares in the capital
of Mitel
from other shareholders, to delete from the articles the class A
convertible preferred shares and class B convertible preferred shares,
together with all designated series
thereof.
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To
the extent permitted by law, each of WCC, ▇▇▇▇▇▇▇▇ and CTJL hereby expressly
waives any right of dissent or appraisal under applicable laws with respect
to
the approvals set forth in paragraphs (a) and (b) of this Section
6.
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7.
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Agreement
to Terminate Shareholders Agreement and Registration Rights
Agreement
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Each
of WCC, ▇▇▇▇▇▇▇▇ and CTJL hereby agrees to terminate, conditional upon the
completion by Mitel of its obligation to repurchase the Warrants pursuant to
this Agreement and upon the closing of the Merger:
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(a)
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the
shareholder’s agreement dated as of the 23rd
day of April,
2004 among Mitel, the Shareholders and certain other shareholders
of
Mitel, as amended by amending agreement dated as of the 26th
day of June,
2006 and as further amended by second amending agreement of even
date
herewith (the “Shareholders Agreement”);
and
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(b)
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the
Registration Rights Agreement dated as of the 23rd
day of April,
2004 among Mitel, the Shareholder and certain other shareholders
of Mitel
(the “Registration Rights
Agreement”),
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in
accordance with the terms of each of the Shareholders Agreement and the
Registration Rights Agreement. The form of such termination agreement
shall be as set forth in Schedule “B” (Termination of Shareholders Agreement and
Registration Rights Agreement) attached to this Agreement.
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8.
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Agreement
to Enter into Francisco Partners Shareholders Agreement and Registration
Rights Agreement
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As
a condition to the Shareholders’ obligations pursuant to Sections 3, 4 and 7 of
this Agreement, Mitel and each of WCC, ▇▇▇▇▇▇▇▇ and CTJL hereby agree that
the
Shareholders shall, on the Closing Date, conditional upon the closing of the
Merger, become parties to:
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(a)
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the
shareholders agreement to be entered into by Mitel, Francisco Partners
II,
L.P. and certain other investors in Mitel, substantially in the form
of
agreement attached as Schedule “C” to this Agreement, each as a
Shareholder (as that term is defined in such shareholders agreement);
and
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(b)
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the
registration rights agreement to be entered into by Mitel, Francisco
Partners and certain other investors in Mitel, substantially in the
form
of agreement attached as Schedule “D” to this Agreement, as a
Holder.
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9.
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Representations,
Warranties and Covenants of the
Shareholder
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The
Shareholders severally represent, warrant and covenant that:
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(a)
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each
of the Shareholders has the requisite power, authority and capacity
to
enter into this Agreement (and all other agreements and documents
required
to be delivered hereunder) on the terms and conditions herein set
forth
and all necessary action has been or will be taken prior to the Closing
Date on the part of ▇▇▇▇▇▇▇▇ to transfer the right,
title and ownership of the Warrants to Mitel on the Closing
Date;
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(b)
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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 or similar action on the part of each of
the
Shareholders. This Agreement and all documents executed or to
be executed by the Shareholders pursuant to this Agreement constitute
and
will constitute on the Closing Date valid and binding obligations
of each
of the Shareholders enforceable against them in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws relating to or affecting
creditors’ rights generally and subject to general principles of
equity;
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(c)
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the
execution, delivery, and performance of this Agreement by each of
the
Shareholders will not (i) as applicable, constitute a violation of
its
articles of incorporation or by-laws, each as amended, (ii) result
in the
breach of or constitute a default under any material agreement of
the
Shareholder, or (iii) constitute a violation of any law applicable
or
relating to it or its businesses;
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(d)
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no
Person, other than Mitel, has any agreement, option or right to purchase
or acquire, or capable of becoming an agreement for the purchase
or
acquisition of, the Warrants;
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(e)
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immediately
prior to the closing of the Merger, ▇▇▇▇▇▇▇▇ will have good and marketable
title to the Warrants and will have the exclusive right to dispose
of the
Warrants. The Warrants will be transferred and sold to Mitel
free and clear of all Encumbrances;
and
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(f)
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immediately
prior to the closing of the Merger, WCC will have good and marketable
title to the Series B Shares.
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10.
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Representations,
Warranties and Covenants of
Mitel
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Mitel
hereby represents, warrants and covenants to the Shareholders that:
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(a)
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Mitel
has the requisite power, authority and capacity to enter into this
Agreement (and all other agreements and documents required to be
delivered
hereunder) and to carry out its obligations under this Agreement
on the
terms and conditions herein set forth, including the repurchase of
the
Warrants set forth in this
Agreement;
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(b)
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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 and all documents executed or to be executed by Mitel pursuant
to this Agreement constitute and will constitute on the Closing Date
valid
and binding obligations of Mitel enforceable against it in accordance
with
their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws relating to or
affecting creditors’ rights generally and subject to general principles of
equity;
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(c)
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the
execution, delivery, and performance of this Agreement by Mitel (including
the acquisition of the Warrants) will not (i) constitute a violation
of
its articles of incorporation or by-laws, each as amended, (ii) result
in
the breach of or constitute a default under any material agreement
of
Mitel, or (iii) constitute a violation of any law applicable or relating
to it or its businesses; and
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(d)
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the
issuance of the Class 1 Shares and Common Share Warrants to ▇▇▇▇▇▇▇▇
has
been duly authorized by Mitel and the Class 1 Shares, the Common
Share
issuable upon the due conversion of the Class 1 Shares and the Common
Shares issuable upon the due exercise of the Common Share Warrants
shall
be validly issued as fully paid and no-assessable shares in the capital
of
Mitel.
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11.
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Survival
of Representations, Warranties and
Covenants
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The
respective representations, warranties and covenants of the Shareholders and
Mitel contained herein shall survive the consummation of the repurchase of
the
Warrants. No investigations made by or on behalf of Mitel or the
Shareholders or any of their respective authorized agents at any time shall
have
the effect of waiving, diminishing the scope of or otherwise affecting any
representation, warranty or covenant made by the Shareholders or Mitel, as
the
case may be, in or pursuant to this Agreement.
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12.
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Conveyance
|
▇▇▇▇▇▇▇▇
shall sign, execute and deliver all documents, transfers, assignments, matters
and things which are convenient and necessary or which counsel for Mitel may
advise for more completely and effectually conveying, assigning and transferring
to or vesting all right, title and interest in the Warrants in Mitel on the
Closing Date.
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13.
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Power
of Attorney
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Should
any of the Shareholders, in the opinion of Mitel acting reasonably, fail to
transfer the Warrants to Mitel in accordance with Section 4, in the case of
▇▇▇▇▇▇▇▇ or to vote the Common Shares and Series B Shares held by them, as
the
case may be, in accordance with Section 6, or to fulfil any of its other
obligations pursuant to this Agreement, then the Secretary of Mitel shall be
deemed to be irrevocably appointed as the true and lawful attorney for the
particular Shareholder with authority to do all things and execute and deliver,
on behalf of and in the name of such Shareholder, such consents, resolutions,
proxies, deeds, transfers, share certificates, resignations or other documents
as may be necessary to complete the sale transaction contemplated herein, and
to
vote the Common Shares and Series B Shares, as the case may be, in accordance
with Section 6, and the particular Shareholder shall have no claim or cause
of
action against any Party hereto, or against any third party, as a result of
the
Secretary of Mitel so acting as its attorney, or
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otherwise
in connection with such sale transaction or vote. Such appointment
and power of attorney, being coupled with an interest, shall not be revoked
by
the insolvency or bankruptcy of the particular Shareholder and such Shareholder
hereby ratifies and confirms and agrees to ratify and confirm all that the
Secretary of Mitel may lawfully do or cause to be done by virtue of such
appointment and power.
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14.
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Further
Assurances
|
The
Parties shall, with reasonable diligence, do all such 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.
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15.
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Remedies
and Specific Performance
|
The
rights and remedies of the Parties under this Agreement are cumulative and
are
not exclusive of any rights or remedies that the Parties would otherwise have
under this Agreement or otherwise. Each of the Shareholders
acknowledges that a breach by it of this Agreement would cause Mitel irreparable
harm and that money damages are not an adequate remedy for violations of this
Agreement and, therefore that Mitel may, in its sole discretion, apply to a
court for specific performance, injunctive, or such other relief as such court
may deem just and proper in order to enforce this Agreement or prevent any
violation thereof, and to the extent permitted by applicable law, each of the
Shareholders waives any objection to the imposition of such relief.
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16.
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Notice
|
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:
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(a) in
the case of a Notice to the Shareholders at:
c/o
▇▇▇▇▇▇ ▇▇▇▇▇▇ International Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Dr.
T.H. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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(b)
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in
the case of a Notice to Mitel at:
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Mitel
Networks Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Any
Party may, from time to time, change its address by giving Notice to the other
Parties in accordance with the provisions of this Section.
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17.
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General
Provisions
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(a)
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All
amounts references herein are references to United States dollars
unless
otherwise specifically indicated.
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(b)
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Time
is of the essence in the performance of the Parties’ respective
obligations.
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(c)
|
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(d)
|
This
Agreement enures to the benefit of and is binding upon the Parties
and
their respective successors and
assigns.
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(e)
|
No
amendment, supplement, modification, waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval
by any
Party, is binding unless executed in writing by the Party to be
bound.
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12 -
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(f)
|
This
Agreement may be executed by the Parties in counterparts and may
be
executed and delivered by facsimile and all such counterparts and
facsimiles together constitute one and the same
agreement.
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[The
remainder of this page is intentionally left blank]
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IN
WITNESS OF WHICH the Shareholder and Mitel have executed this
Agreement.
|
▇▇▇▇▇▇
▇▇▇▇▇▇ CORPORATION
|
||
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By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
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||
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Title:
President
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||
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CELTIC
TECH JET LIMITED
|
||
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By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
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||
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Title:
President
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||
[Signature
Page to Amended and Restated
WCC
Warrant Repurchase,Voting And Conversion Agreement]
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SIGNED,
SEALED AND DELIVERED
|
|||
|
in
the presence of:
|
|||
| /s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
|
Witness
|
▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
||
[Signature
Page to Amended and Restated
WCC
Warrant Repurchase,Voting And Conversion Agreement]
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MITEL
NETWORKS CORPORATION
|
|||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
Title:
|
Chief
Financial Officer
|
||
[Signature
Page to Amended and Restated
WCC
Warrant Repurchase,Voting And Conversion Agreement]