EXHIBIT 1
WARRANT
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
SHALL NOT TRADE THE SECURITIES BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER
THE LATER OF (I) SEPTEMBER 21, 2006, AND (II) THE DATE THE ISSUER BECAME A
REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A SUBSCRIPTION AGREEMENT, DATED
AS OF SEPTEMBER 21, 2006, BY AND AMONG THE CORPORATION AND THE INVESTORS
REFERRED TO THEREIN (THE "SUBSCRIPTION AGREEMENT") AND THE HOLDER OF THE
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL
APPLICABLE PROVISIONS OF THE SUBSCRIPTION AGREEMENT. NO TRANSFER OF THIS WARRANT
SHALL BE MADE WITHOUT COMPLYING WITH THE PROVISIONS OF THIS WARRANT.
WARRANT
TO ACQUIRE COMMON SHARES OF
MITEL NETWORKS CORPORATION
Warrant No.: 2006-1
Number of Warrants: 15,000
Aggregate Purchase Price: $15,000,000
Date of Issuance: September 21, 2006
THIS CERTIFIES that, for value received, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation (the
"HOLDER"), the registered holder of this common share purchase warrant
certificate (the "WARRANT"), is entitled to acquire (i) Common Shares (the
"WARRANT SHARES") (such number to be determined and subject to adjustment as
provided by the provisions hereof) in the capital of Mitel Networks Corporation
(the "CORPORATION") on an Exercise Event and (ii) an IPO Warrant if the Exercise
Event is an IPO Event.
Capitalized terms used herein have the meaning set forth in Section of this
Warrant.
ARTICLE 1
EXERCISE OF WARRANT
1.1 AUTOMATIC EXERCISE
This Warrant may only be exercised, and shall automatically be exercised (i)
immediately prior to the closing of an IPO (an "IPO EVENT"); (ii) immediately
prior to a sale of all or substantially all of the equity of the Corporation to
a purchaser (a) on an all cash basis, or (b) for shares (or a mix of cash and
shares) of the purchaser where such shares are publicly traded on one or more of
the TSX, NASDAQ, or NYSE (a "CHANGE OF CONTROL EVENT"); (iii) immediately prior
to a Fundamental Transaction (a "FUNDAMENTAL TRANSACTION EVENT"); or (iv) the
date that is 24 months following First Tranche Closing Date (as defined in the
Subscription Agreement) (the "WARRANT TERM"). The earliest to occur of an IPO
Event, Change of Control Event, Fundamental Transaction Event or expiry of the
Warrant Term shall be referred to herein as an "EXERCISE EVENT".
1.2 CONVERSION VALUE
On the occurrence of an Exercise Event the Holder will receive, without the
payment by the Holder of any additional consideration, a number of fully-paid
non-assessable Common Shares in respect of each Warrant held as is computed by
the following formula:
X = Y
---
Z
where:
X = the number of Warrant Shares that shall be issued to the Holder;
Y = $1,000; and
Z = the number determined as follows:
(a) where the Exercise Event is an IPO:
Z = the lesser of (1)(A) during the first 12 months of
the Warrant Term, 85% of the US dollar price per
Common Share being offered in the IPO, and (B) during
the remaining 12 months of the Warrant Term, an
additional 1 1/4% discount per month (to an
additional maximum discount, in the aggregate, of
15%) of the US dollar price per Common Share being
offered in the IPO and (2) $1.50.
(b) where the Exercise Event is a Change of Control Event:
Z = the lesser of (1)(A) during the first 12 months of
the Warrant Term, 85% of the Change of Control Price,
and (B) during the remaining 12 months of the Warrant
Term, an additional 1 1/4% discount per month (to an
additional maximum discount, in the aggregate, of
15%) of the Change of Control Price and (2) $1.50.
(c) where the Exercise Event is a Fundamental Transaction Event
(that is not also a Change of Control Event) or the expiry of
the Warrant Term:
Z = $1.50.
1.3 IPO WARRANT
If the Exercise Event is an IPO Event, the Holder will also receive a warrant to
purchase, at an exercise price per IPO Warrant Share equal to the US dollar
price per Common Share being offered in the IPO, a number of IPO Warrant Shares
equal to the number of Warrant Shares issued to the Holder upon exercise of this
Warrant as set forth herein, substantially in the form set out in Schedule "A"
(the "IPO WARRANT").
1.4 SHARE CERTIFICATES
As promptly as practicable after the Exercise Event and in any event within five
(5) Business Days, the Corporation shall issue and deliver to the Holder, or
such Person as the Holder directs, a certificate or certificates for the Warrant
Shares and, if the Exercise Event is an IPO Event, the IPO Warrant and at such
time, the rights of the Holder with respect to this Warrant which have been
exercised as such shall cease, and the Person or Persons in whose name or names
any certificate or certificates for Warrant Shares (and IPO Warrants, if
applicable) shall then be issuable upon such exercise shall be deemed to have
become the holder or holders of record of the Warrant Shares (and IPO Warrants,
if applicable) represented thereby.
1.5 FRACTIONAL COMMON SHARES
No fractional Common Shares shall be issued upon exercise of this Warrant. If
any fractional interest in a Common Share would, except for the provisions of
this Section 1.5, be deliverable upon the exercise of this Warrant, the
Corporation shall, in lieu of delivering the fractional Common Shares therefor
satisfy the right to receive such fractional interest by rounding up the number
of Warrant Shares to the nearest whole number.
1.6 COMMON SHARES TO BE RESERVED
The Corporation covenants and agrees that all Warrant Shares issuable upon the
exercise of this Warrant will, upon issuance, be duly authorized and issued,
fully paid and non-assessable.
1.7 NO ISSUANCE CHARGE
The issuance of certificates for Warrant Shares upon the exercise of this
Warrant shall be made without charge to the Holder.
1.8 REPLACEMENT
Upon receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant and an indemnity in form and substance
satisfactory to the Corporation, the Corporation will issue to the Holder, at no
charge to the Holder, a replacement Warrant (containing the same terms and
conditions as this Warrant).
1.9 EXPIRY
On an Exercise Event, all rights under this Warrant will wholly cease and
terminate. This Warrant thereafter will be void and of no effect.
ARTICLE 2
ADJUSTMENTS TO NUMBER OF WARRANT SHARES
2.1 ADJUSTMENTS FOR STOCK SPLITS
Immediately following the occurrence of any one or more Stock Splits occurring
at any time prior to the Expiry Date, the number of Warrant Shares which the
Holder shall receive upon exercise of this Warrant shall be adjusted at the same
time by multiplying the number by a fraction:
(a) the numerator of which is the number of Common Shares issued and
outstanding immediately after the Stock Split; and
(b) the denominator of which is the number of Common Shares issued and
outstanding immediately before the Stock Split.
2.2 ADJUSTMENTS FOR CAPITAL REORGANIZATIONS
If and whenever at any time prior to the Expiry Date, the Common Shares are
changed into the same or a different number of shares of any class or series,
whether by capital reorganization, reclassification or otherwise (other than a
Stock Split), or upon a consolidation, amalgamation, arrangement or merger of
the Corporation with or into any other that is not also a Change of Control
Event or Fundamental Transaction, the Holder shall thereafter be entitled to
receive and shall accept in lieu of the number of Warrant Shares, as then
constituted, to which the Holder was previously entitled to receive upon
exercise of this Warrant, the number of shares or other securities or property
of the Corporation or of the company resulting from such reclassification,
capital reorganization, consolidation, amalgamation or merger or of the person
to which such sale may be made, as the case may be, that such Holder would have
been entitled to receive on such reclassification, capital reorganization,
consolidation, amalgamation or merger, if the Holder had been the registered
holder of the number of Common Shares to which the Holder was previously
entitled upon due exercise of this Warrant if such event were an expiry of the
Warrant Term; and in any case, if necessary, appropriate adjustment shall be
made in the application of the provisions set forth herein with respect to the
rights and interests thereafter of the Holder to the end that the provisions set
forth herein shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to any shares or securities or property to which
the Holder of this Warrant may be entitled upon the exercise of this Warrant
thereafter.
2.3 OTHER DISTRIBUTIONS
In the event the Corporation declares a distribution payable in securities
(other than securities of the Corporation), evidence of indebtedness issued by
the Corporation or other persons or assets
(excluding cash dividends paid in the ordinary course of business) then, in each
such case for the purpose of this Section 2.3, the Holder shall be entitled upon
exercise of this Warrant to a proportionate share of any such distribution as
though it were the holder of the number of Common Shares into which this Warrant
would have been exercisable as of the record date fixed for the determination of
the holders of Common Shares of the Corporation entitled to receive such
distribution if such event were an expiry of the Warrant Term.
2.4 NO IMPAIRMENT
The Corporation will not, by amendment of its articles or through any
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed under this Warrant, but will at all times in good faith assist in
the carrying out of all the provisions of Article 2 and in the taking of any
action necessary or appropriate in order to protect the rights of the Holder
against impairment.
2.5 RESERVATION OF COMMON SHARES
(a) The Corporation shall at all times reserve and keep available out of
its authorized but unissued Common Shares, solely for the purpose of
effecting the exercise of this Warrant, such number of Warrant
Shares as from time to time is sufficient to effect the exercise of
this entire Warrant, and if at any time the number of authorized but
unissued Common Shares is not sufficient to effect the exercise in
full of this Warrant, then the Corporation will take such corporate
action as may, in the opinion of its legal counsel, be necessary to
increase its authorized but unissued Common Shares to such number of
shares as is sufficient for such purpose.
(b) The Corporation shall at all times reserve and keep available out of
its authorized but unissued Common Shares, solely for the purpose of
effecting the exercise of the IPO Warrant, such number of IPO
Warrant Shares as from time to time is sufficient to effect the
exercise of the entire IPO Warrant, and if at any time the number of
authorized but unissued Common Shares is not sufficient to effect
the exercise in full of the IPO Warrant, then the Corporation will
take such corporate action as may, in the opinion of its legal
counsel, be necessary to increase its authorized but unissued Common
Shares to such number of shares as is sufficient for such purpose.
2.6 NO VOTING OR DIVIDEND RIGHTS
Nothing contained in this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive notice as a
shareholder of the Corporation or any other matters or any rights whatsoever as
a shareholder of the Corporation prior to the exercise of the Holder's rights to
acquire Common Shares as provided for herein. No dividends or interest shall be
payable or accrued in respect of this Warrant or the interest represented hereby
or the Warrant Shares hereunder until this Warrant shall have been exercised.
2.7 DISPUTES
If a dispute shall at any time arise with respect to adjustments in the number
of Warrant Shares issuable upon exercise of this Warrant, such dispute shall be
conclusively determined by a firm of independent chartered accountants as may be
selected by the board of directors of the Corporation and any such determination
shall be binding upon the Corporation and the Holder. Such firm of independent
chartered accountants shall be provided access to all necessary records of the
Corporation. If any such determination is made, the Corporation shall deliver a
certificate to the Holder describing such determination.
2.8 FURTHER ADJUSTMENT PROVISIONS
If, at any time as a result of an adjustment made pursuant to this Article 2,
the Holder becomes entitled to receive any shares or other securities of the
Corporation other than Common Shares upon exercise, the conversion ratio in
respect of such other shares or securities (if such other shares or securities
are by their terms convertible securities) will be adjusted after that time, and
will be subject to further adjustment from time to time, in a manner and on
terms as nearly equivalent as practicable to the provisions contained in this
Article 2, and the remaining provisions of this Article 2 will apply mutatis
mutandis to any such other shares or securities.
2.9 OTHER EVENTS
If any change in the outstanding Common Shares or any other event occurs as to
which the anti-dilution provisions of this Article 2 are not strictly applicable
or, if strictly applicable, would not fairly protect the rights of the Holder in
accordance with such provisions, then the board of directors of the Corporation
shall make an adjustment in the number or class of shares to be issued pursuant
to the exercise of this Warrant, or the application of such provisions, so as to
protect such rights of the Holder as aforesaid. The adjustment shall be such as
will give the Holder, upon exercise, the total number, class and kind of shares
as it would have owned had this Warrant been exercised prior to the event and
had it continued to hold such shares until after the event requiring adjustment.
2.10 CUMULATIVE ADJUSTMENTS
The adjustments provided for in this Article 2 are cumulative and shall apply to
successive Stock Splits, capital reorganizations, combinations, consolidations,
distributions, issues or other events resulting in any adjustment under the
provisions of this Article 2; provided that notwithstanding any other provision
of this Article 2, (i) no adjustment of the number of Warrant Shares, as then
constituted, issuable shall be required, unless such adjustment would require an
increase or decrease of at least 1% in the number of Warrant Shares, as then
constituted, issuable, and (ii) any adjustments which by reason of this Section
2.10 are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. If the Corporation sets a record date to determine
the holders of its Warrant Shares for the purpose of any event which would
result in an adjustment to the number of Warrant Shares issuable upon exercise
of this Warrant and shall thereafter and before the completion of such event
legally abandon its plan to do so,
then no adjustment in the number of Warrant Shares to which the Holder is
entitled pursuant to exercise of this Warrant shall be required by reason of the
setting of such record date.
2.11 NOTICE OF ADJUSTMENT
Upon any adjustment of the number or kind of securities into which this Warrant
is exercisable, the Corporation shall give written notice thereof to the Holder,
which notice shall state the number of Warrant Shares or other securities
subject to this Warrant resulting from such adjustment, and shall set forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the request of the Holder, there shall be transmitted
promptly to the Holder a statement of a firm of independent chartered
accountants to the effect that such firm concurs in the Corporation's
calculation of the change.
2.12 NOTICE OF SPECIAL MATTERS
The Corporation covenants that, so long as this Warrant remains outstanding, it
will give notice to the Holder of its intention to fix a record date for any
event referred to in this Article 2 which may give rise to an adjustment in the
number of Warrant Shares issuable upon exercise of this Warrant, and such notice
shall specify the particulars of such event and the record date and the
effective date for such event; provided that the Corporation shall only be
required to specify in such notice such particulars of such event as shall have
been fixed and determined on the date on which such notice is given. Such notice
shall be given not less than ten (10) Business Days prior to the applicable
record date.
ARTICLE 3
LIMITATION ON TRANSFER
3.1 LIMITATIONS ON TRANSFER
This Warrant, the Warrant Shares or any interest therein or portion thereof
shall be fully transferable, in whole or in part, at any time and from time to
time, subject to applicable securities laws, the Corporation's articles and the
terms and conditions of the Shareholders' Agreement.
3.2 TRANSFER LEGEND
Each certificate representing (i) this Warrant, (ii) the Warrant Shares, (iii)
any other securities issued in respect of the Warrant Shares, upon any Stock
Split, stock dividend, capital reorganization, merger, consolidation or similar
event, shall (unless such securities have been qualified for distribution and
resale under applicable securities laws) be stamped or otherwise imprinted with
a legend substantially in the following form (in addition to any legend required
under any applicable securities laws and pursuant to the Shareholders'
Agreement):
"UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE
SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF SHALL NOT TRADE SUCH SECURITIES
BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE LATER OF (I) [THE
DISTRIBUTION DATE], AND (II) THE DATE THE CORPORATION BECAME A REPORTING
ISSUER IN ANY PROVINCE OR TERRITORY.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A SUBSCRIPTION AGREEMENT,
DATED AS OF SEPTEMBER 21, 2006 , BY AND AMONG THE CORPORATION AND THE
INVESTORS REFERRED TO THEREIN (THE "SUBSCRIPTION AGREEMENT") AND THE
HOLDER OF THE CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE
BOUND BY ALL APPLICABLE PROVISIONS OF THE SUBSCRIPTION AGREEMENT. THE
SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A REGISTRATION RIGHTS
AGREEMENT, DATED AS OF-, BY AND AMONG THE CORPORATION AND THE INVESTORS
(THE "REGISTRATION RIGHTS AGREEMENT") AND THE HOLDER OF THE CERTIFICATE,
BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL APPLICABLE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT. NO TRANSFER OF THIS
WARRANT SHALL BE MADE WITHOUT COMPLYING WITH THE PROVISIONS OF THIS
WARRANT."
ARTICLE 4
WARRANTIES AND COVENANTS
4.1 GENERAL COVENANTS, RESPONSIBILITIES AND WARRANTIES OF THE CORPORATION
(a) The Corporation represents and warrants that it is duly authorized
to enter into and perform its obligations under this Warrant.
(b) The Corporation shall at all times reserve and keep available free
from pre-emptive rights, out of the aggregate of its authorized
unissued Common Shares, for the purpose of enabling it to satisfy
any obligation to issue Common Shares upon exercise of this Warrant
and the IPO Warrant, the full number of Warrant Shares and IPO
Warrant Shares deliverable upon the exercise thereof.
(c) The Corporation covenants that all Warrant Shares which may be
issued upon exercise of this Warrant will, upon issue, be fully paid
and non-assessable.
(d) In the event that the Common Shares are listed or quoted for trading
on any stock exchange or quotation system, the Corporation shall use
its commercially reasonable best efforts to cause all Warrant Shares
issued upon exercise of this Warrant to be listed for trading on
each such exchange.
(e) The Corporation represents and warrants that all necessary corporate
actions have been done and performed to create this Warrant and to
make this Warrant a legal, valid and binding obligation of the
Corporation. The Corporation will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered,
all other acts, deeds and assurances in law as may be reasonably
required for the better accomplishing and effecting of the
intentions and provisions of this Warrant.
(f) The Corporation will direct its transfer agent to, or if the
Corporation serves as its own transfer agent, the Corporation shall,
issue share certificates representing the number of Warrant Shares
issuable upon exercise of this Warrant and subject to adjustment as
set forth herein within five (5) Business Days of such exercise.
(g) The Corporation represents and warrants that the issuance, execution
and delivery of this Warrant does not, and the issuance of the
Warrant Shares upon the exercise of this Warrant in accordance with
the terms hereof will not, (i) violate or contravene the
Corporation's articles, by-laws, or any law, statute, regulation,
rule, judgment or order applicable to the Corporation, (ii) violate,
contravene or result in a breach or default under any contract,
agreement or instrument to which the Corporation is a party or by
which the Corporation or any of it assets are bound or (iii) require
the consent or approval of or the filing of any notice or
registration with any person or entity other than such consent or
approval that has already been obtained.
4.2 PAYMENT OF TAXES AND DUTIES
The Corporation shall pay all expenses in connection with, and all taxes
including all applicable stamp, registration, bank transaction and Other Taxes
(other than income tax and capital gains tax eligible on the income of the
Holder), if any, and all other governmental charges that may be properly imposed
on the Corporation in respect of the issue or delivery of Warrant Shares
issuable upon the exercise of this Warrant, and shall indemnify and hold the
Holder or its affiliates harmless from any taxes, interest and penalties which
may become payable by the Holder or its affiliates as a result of the failure or
delay by the Corporation to pay such taxes specified above. For the purposes
hereof, "OTHER TAXES" means any present or future stamp, documentary or similar
issue or transfer taxes or any other excise or property taxes, charges or
similar levies in respect of the issue or delivery of the Warrant Shares
issuable upon exercise of this Warrant.
ARTICLE 5
RULES OF INTERPRETATION
5.1 DEFINITIONS
Whenever used in this Warrant, the following words and terms shall have the
meanings set out below:
"BUSINESS DAY" means any day, other than a Saturday or Sunday, on which
chartered banks in Ottawa, Ontario, are open for commercial banking business
during normal banking hours;
"CHANGE OF CONTROL PRICE" shall be equal to the US dollar price per Common Share
paid in cash or shares (or a mix of cash and shares) to the holders of Common
Shares in a Change of Control
Event; and if any portion of the price is paid in shares, such shares shall be
valued at the last closing price of such shares immediately prior to the Change
of Control Event on the principal exchange on which such shares are listed;
"COMMON SHARES" means the common shares in the capital of the Corporation;
"EXERCISE EVENT" has the meaning set forth in Section 1.1;
"EXPIRY DATE" means the occurrence of an Exercise Event;
"FUNDAMENTAL TRANSACTION" means (a) that the Corporation shall, directly or
indirectly, in one or more related transactions, (i) consolidate or merge with
or into (whether or not the Corporation is the surviving corporation) or
amalgamate with another Person, or (ii) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the
Corporation to another Person, or (iii) allow another Person to make, or fail to
prevent another Person from making, a purchase, tender or exchange offer that is
accepted by the holders of more than the 50% of the outstanding Common Shares
(not including any Common Shares held by the Person or Persons making or party
to, or associated or affiliated with the Persons making or party to, such
purchase, tender or exchange offer), or (iv) consummate a stock purchase
agreement or other business combination (including, without limitation, a
reorganization, recapitalization, spin-off or scheme or plan of arrangement)
with another Person whereby such other Person acquires more than the 50% of the
outstanding Common Shares (not including any Common Shares held by the other
Person or other Persons making or party to, or associated or affiliated with the
other Persons making or party to, such stock purchase agreement or other
business combination), or (v) reorganize, recapitalize or reclassify its Common
Shares or (b) any event, whether by a single transaction or a series of
transactions, that results in ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇ Persons,
collectively, "beneficially owning" (within the meaning of Rule 13d-3 under the
United States Securities and Exchange Act of 1934), directly or indirectly, in
the aggregate less than 115,000,000 of the issued and outstanding shares in the
capital of the Corporation (subject to appropriate adjustments for share
dividends, share splits, recapitalizations, combinations, reverse share splits
or other similar events occurring after April 27, 2005), in each case calculated
on an as-if-converted to Common Shares basis; and "▇▇▇▇▇▇▇▇ PERSONS" means the
immediate family of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and any "person" or "group" under
Section 13(d)(3) of the United States Securities and Exchange Act of 1934 that
is controlled solely by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or his immediate family, any
beneficiary of the estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or his immediate family or any
trust or partnership controlled by any of the foregoing. For greater certainty,
a Fundamental Transaction does not include a Change of Control Event;
"IPO" means any initial public offering in which the Common Shares are listed
and posted for trading, traded or quoted on one or more of the Toronto Stock
Exchange, the New York Stock Exchange or the NASDAQ Global Market System;
"IPO WARRANT" means a warrant substantially in the form attached as Schedule
"A";
"IPO WARRANT SHARES" means the Common Shares issued or issuable upon the
exercise of the IPO Warrants;
"PARTIES" means the Holder and the Corporation;
"PERSON" means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof;
"SHAREHOLDERS' AGREEMENT" means the shareholders' agreement dated April 23, 2004
among the Corporation, the Holder and certain other parties, as amended; and
"STOCK SPLIT" means:
(a) the issuance of Common Shares as a dividend or other distribution on
outstanding Common Shares;
(b) the subdivision of outstanding Common Shares into a greater number
of Common Shares; or
(c) the combination of outstanding Common Shares into a smaller number
of Common Shares; and
5.2 CERTAIN RULES OF INTERPRETATION
In this Warrant:
(a) CURRENCY - Unless otherwise specified, all references to money
amounts are to lawful currency of the United States.
(b) GOVERNING LAW - This Warrant is a contract made under and shall be
governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario. Subject to Section 2.7, any action, suit or
proceeding arising out of or relating to this Warrant shall be
brought in the courts of the Province of Ontario and each of the
Parties hereby irrevocably submits to the non-exclusive jurisdiction
of such courts.
(c) HEADINGS - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Warrant.
(d) NUMBER AND GENDER - Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(e) TIME - Time is of the essence in the performance of the Parties'
respective obligations under this Warrant.
(f) TIME PERIODS - Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done shall
be calculated by excluding the day on which the period commences and
including the day on which the period ends and by extending the
period to the next Business Day following if the last day of the
period is not a Business Day.
(g) BUSINESS DAYS - If any payment is required to be made or other
action is required to be taken pursuant to this Warrant on a day
which is not a Business Day, then such payment or action shall be
made or taken on the next Business Day.
(h) INCLUDING - Where the word "including" or "includes" is used in this
Warrant, it means "including (or includes) without limitation".
(i) NO STRICT CONSTRUCTION - The language used in this Warrant is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any party.
(j) SEVERABILITY - If, in any jurisdiction, any provision of this
Warrant or its application to the Corporation or the Holder 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 Warrant and without
affecting the validity or enforceability of such provision in any
other jurisdiction or without affecting its application to the other
party or other circumstances.
5.3 LANGUAGE
The Parties hereby confirm their express wish that this Warrant be drawn up in
the English language. Les parties reconnaissent leur volonte expresse que le
present certificat soit redige en langue anglaise.
[Signature page follows.]
IN WITNESS WHEREOF the Corporation has caused this Warrant to be signed by a
duly authorized officer.
DATED this 21st day of September, 2006.
MITEL NETWORKS CORPORATION
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WARRANT CERTIFICATE]
SCHEDULE A
IPO WARRANT
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
SHALL NOT TRADE THE SECURITIES BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER
THE LATER OF (i) [THE DISTRIBUTION DATE], AND (II) THE DATE THE ISSUER BECAME A
REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A SUBSCRIPTION AGREEMENT, DATED
AS OF o, 2006, BY AND AMONG THE CORPORATION AND THE INVESTORS REFERRED TO
THEREIN (THE "SUBSCRIPTION AGREEMENT") AND THE HOLDER OF THE CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL APPLICABLE PROVISIONS
OF THE SUBSCRIPTION AGREEMENT. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO
A REGISTRATION RIGHTS AGREEMENT, DATED AS OF o, 2006, BY AND AMONG THE
CORPORATION AND THE INVESTORS REFERRED TO THEREIN (THE "REGISTRATION RIGHTS
AGREEMENT") AND THE HOLDER OF THE CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL APPLICABLE PROVISIONS OF THE REGISTRATION
RIGHTS AGREEMENT. NO TRANSFER OF THIS WARRANT SHALL BE MADE WITHOUT COMPLYING
WITH THE PROVISIONS OF THIS WARRANT.
WARRANT
TO ACQUIRE COMMON SHARES OF
MITEL NETWORKS CORPORATION
Warrant No.: o
Exercise Price: o
Date of Issuance: o
THIS CERTIFIES that, for value received, o (the "HOLDER"), the registered holder
of this common share purchase warrant certificate (the "WARRANT"), is entitled
to purchase o Common Shares (the "WARRANT SHARES") (such maximum number to be
subject to adjustment as provided by the provisions hereof) in the capital of
Mitel Networks Corporation (the "CORPORATION"), at the Exercise Price.
Capitalized terms used herein have the meaning set forth in Section 5.1 of this
Warrant.
ARTICLE 1
EXERCISE OF WARRANT
1.1 ELECTION TO EXERCISE
The right to purchase Common Shares evidenced by this Warrant may be exercised
by the Holder at any time and from time to time commencing on the date of
completion of an IPO and ending at 5:00 p.m. (Ottawa time) on the date that is
eighteen months following completion of an IPO (the "EXERCISE PERIOD"), in whole
or in part and in accordance with the provisions hereof,
- 2 -
by (i) delivery of an election to exercise notice in the form substantially the
same as that attached hereto as Schedule A (the "ELECTION TO EXERCISE Form") or
a net issuance notice in the form substantially the same as that attached hereto
as Schedule B (the "NET ISSUANCE ELECTION FORM") properly completed and
executed, for the number of Common Shares therein specified, and (ii) unless the
Holder elects to use the Net Issuance Form, payment to the Corporation of the
Exercise Price, in cash, certified cheque or bank draft, in respect of each
Warrant Share issuable upon such exercise. The Election to Exercise Form or Net
Issuance Form, as the case may be, and Exercise Price in respect of each
exercise, if applicable, must be received by the Corporation during the Exercise
Period at its principal office at: Mitel Networks Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Secretary, or such
other address in Canada as may be notified in writing by the Corporation (the
"EXERCISE LOCATION").
1.2 EXERCISE
The Corporation shall, on the date it receives a duly executed Election to
Exercise Form and payment in full of the Exercise Price in respect of each
exercise of this Warrant or the Net Issuance Form (the "EXERCISE DATE"), issue
the Warrant Shares underlying the portion of the Warrant duly exercised as fully
paid and non-assessable common shares.
1.3 EXERCISE PRICE
Upon exercise of this Warrant in whole or in part under the Election to Exercise
Form, the Holder will be entitled to purchase, at the US dollar price per Common
Share being offered in the IPO (the "EXERCISE PRICE"), the number of fully-paid
non-assessable Warrant Shares set out on the cover page of this Warrant.
1.4 NET-ISSUANCE EXERCISE
At any time during the Exercise Period the Holder may elect to receive by
delivery of a duly executed Net Issuance Form at the Exercise Location, without
the payment by the Holder of any additional consideration, a number of
fully-paid non-assessable Warrant Shares as is computed by the following
formula:
X = Y (A-B)
------
A
where
X = the number of Warrant Shares that shall be issued to
the Holder.
Y = the number of Warrant Shares in respect of which the net
issuance election is being made.
A = the "FAIR MARKET VALUE" (as defined herein) of one Common
Share as at the time the net issuance election is made.
B = the Exercise Price.
- 3 -
1.5 SHARE CERTIFICATES
As promptly as practicable after the Exercise Date and in any event within five
(5) Business Days, upon the due and valid exercise of the Warrant, the
Corporation shall issue and deliver to the Holder, or such Person as the Holder
directs, a certificate or certificates for the Warrant Shares. To the extent
permitted by law, such exercise shall be deemed to have been effected
immediately prior to 5:00 p.m. (Ottawa time) on the Exercise Date, and at such
time, the rights of the Holder with respect to this Warrant which have been
exercised as such shall cease, and the Person or Persons in whose name or names
any certificate or certificates for Warrant Shares shall then be issuable upon
such exercise shall be deemed to have become the holder or holders of record of
the Warrant Shares represented thereby.
1.6 FRACTIONAL COMMON SHARES
No fractional Common Shares shall be issued upon exercise of this Warrant. If
any fractional interest in a Common Share would, except for the provisions of
this Section 1.6, be deliverable upon the exercise of this Warrant, the
Corporation shall, in lieu of delivering the fractional Common Shares therefor
satisfy the right to receive such fractional interest by rounding up the number
of Common Shares to the nearest whole number.
1.7 COMMON SHARES TO BE RESERVED
The Corporation covenants and agrees that all Warrant Shares issuable upon the
exercise of this Warrant will, upon issuance, be duly authorized and issued,
fully paid and non-assessable.
1.8 NO ISSUANCE CHARGE
The issuance of certificates for Warrant Shares upon the exercise of this
Warrant shall be made without charge to the Holder.
1.9 REPLACEMENT
Upon receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of this Warrant and an indemnity in form and substance
satisfactory to the Corporation, the Corporation will issue to the Holder, at no
charge to the Holder, a replacement Warrant (containing the same terms and
conditions as this Warrant).
1.10 EXPIRY
On the Expiry Date, all rights under this Warrant in respect of which the right
of subscription and purchase provided for has not been exercised will wholly
cease and terminate, and any unexercised portion of this Warrant will be void
and of no effect.
- 4 -
ARTICLE 2
ADJUSTMENTS TO EXERCISE PRICE
2.1 ADJUSTMENTS FOR STOCK SPLITS
Immediately following the occurrence of any one or more Stock Splits occurring
at any time prior to the Expiry Date, the Exercise Price in effect immediately
prior to the occurrence of such event shall be adjusted such that the Exercise
Price is equal to the product obtained by multiplying the Exercise Price
immediately before the Stock Split by a fraction:
(a) the numerator of which is the number of Common Shares issued and
outstanding immediately before the Stock Split; and
(b) the denominator of which is the number of Common Shares issued and
outstanding immediately after the Stock Split.
The maximum number of Common Shares which the Holder is entitled to purchase for
each Warrant issued under this Warrant shall also be adjusted at the same time
by multiplying the number by the inverse of the fraction set out above.
2.2 ADJUSTMENTS FOR CAPITAL REORGANIZATIONS
If and whenever at any time prior to the Expiry Date, the Common Shares are
changed into the same or a different number of shares of any class or series,
whether by capital reorganization, reclassification or otherwise (other than a
Stock Split), or upon a consolidation, amalgamation, arrangement or merger of
the Corporation with or into any other, in respect of any unexercised portion of
this Warrant, the Holder shall thereafter be entitled to receive and shall
accept in lieu of the number of Warrant Shares, as then constituted, to which
the Holder was previously entitled to receive upon exercise of this Warrant, but
for the same aggregate consideration payable therefore, the number of shares or
other securities or property of the Corporation or of the company resulting from
such reclassification, capital reorganization, consolidation, amalgamation or
merger or of the person to which such sale may be made, as the case may be, that
such Holder would have been entitled to receive on such reclassification,
capital reorganization, consolidation, amalgamation, merger, if the Holder had
been the registered holder of the number of Common Shares to which the Holder
was previously entitled upon due exercise of this Warrant; and in any case, if
necessary, appropriate adjustment shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of the Holder to the end that the provisions set forth herein shall thereafter
correspondingly be made applicable, as nearly as may reasonably be, in relation
to any shares or securities or property to which the Holder of this Warrant may
be entitled upon the exercise of this Warrant thereafter.
- 5 -
2.3 OTHER DISTRIBUTIONS
In the event the Corporation declares a distribution payable in securities
(other than securities of the Corporation), evidence of indebtedness issued by
the Corporation or other persons or assets (excluding cash dividends paid in the
ordinary course of business) then, in each such case for the purpose of this
Section 2.3, the Holder shall be entitled upon exercise of this Warrant to a
proportionate share of any such distribution as though it were the holder of the
number of Common Shares into which this Warrant were convertible as of the
record date fixed for the determination of the holders of Common Shares of the
Corporation entitled to receive such distribution.
2.4 NO IMPAIRMENT
The Corporation will not, by amendment of its articles or through any
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed under this Warrant, but will at all times in good faith assist in
the carrying out of all the provisions of Article 2 and in the taking of any
action necessary or appropriate in order to protect the rights of the Holder
against impairment.
2.5 RESERVATION OF COMMON SHARES
The Corporation shall at all times reserve and keep available out of its
authorized but unissued Common Shares, solely for the purpose of effecting the
exercise of this Warrant, such number of Warrant Shares as from time to time is
sufficient to effect the exercise of this entire Warrant, and if at any time the
number of authorized but unissued Common Shares is not sufficient to effect the
exercise in full of this Warrant, then the Corporation will take such corporate
action as may, in the opinion of its legal counsel, be necessary to increase its
authorized but unissued Common Shares to such number of shares as is sufficient
for such purpose.
2.6 NO VOTING OR DIVIDEND RIGHTS
Nothing contained in this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive notice as a
shareholder of the Corporation or any other matters or any rights whatsoever as
a shareholder of the Corporation prior to the exercise of the Holder's rights to
purchase Common Shares as provided for herein. No dividends or interest shall be
payable or accrued in respect of this Warrant or the interest represented hereby
or the Common Shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised.
2.7 DISPUTES
If a dispute shall at any time arise with respect to adjustments in the number
of Warrant Shares issuable upon exercise of this Warrant, such dispute shall be
conclusively determined by a firm of independent chartered accountants as may be
selected by the board of directors of the
- 6 -
Corporation and any such determination shall be binding upon the Corporation and
the Holder. Such firm of independent chartered accountants shall be provided
access to all necessary records of the Corporation. If any such determination is
made, the Corporation shall deliver a certificate to the Holder describing such
determination.
2.8 FURTHER ADJUSTMENT PROVISIONS
If, at any time as a result of an adjustment made pursuant to this Article 2,
the Holder becomes entitled to receive any shares or other securities of the
Corporation other than Common Shares upon surrendering this Warrant for
exercise, the conversion ratio in respect of such other shares or securities (if
such other shares or securities are by their terms convertible securities) will
be adjusted after that time, and will be subject to further adjustment from time
to time, in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Conversion Value contained in this Article 2, and the
remaining provisions of this Article 2 will apply mutatis mutandis to any such
other shares or securities.
2.9 OTHER EVENTS
If any change in the outstanding Common Shares or any other event occurs as to
which the anti-dilution provisions of this Article 2 are not strictly applicable
or, if strictly applicable, would not fairly protect the rights of the Holder in
accordance with such provisions, then the board of directors of the Corporation
shall make an adjustment in the number or class of shares to be issued pursuant
to the exercise of this Warrant, the Exercise Price or the application of such
provisions, so as to protect such rights of the Holder as aforesaid. The
adjustment shall be such as will give the Holder, upon exercise for the same
aggregate Exercise Price, the total number, class and kind of shares as it would
have owned had this Warrant been exercised prior to the event and had it
continued to hold such shares until after the event requiring adjustment.
2.10 CUMULATIVE ADJUSTMENTS
The adjustments provided for in this Article 2 are cumulative and shall apply to
successive Stock Splits, capital reorganizations, combinations, consolidations,
distributions, issues or other events resulting in any adjustment under the
provisions of this Article 2; provided that notwithstanding any other provision
of this Article 2, (i) no adjustment of the Exercise Price or number of Warrant
Shares, as then constituted, purchasable shall be required, unless such
adjustment would require an increase or decrease of at least 1% in the Exercise
Price then in effect or the number of Warrant Shares, as then constituted,
purchasable, and (ii) any adjustments which by reason of this Section 2.10 are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. If the Corporation sets a record date to determine the
holders of its Warrant Shares for the purpose of any event which would result in
an adjustment to the number of Warrant Shares issuable upon exercise of this
Warrant and shall thereafter and before the completion of such event legally
abandon its plan to do so, then no adjustment in the number of Warrant Shares to
which the Holder is entitled pursuant to exercise of this Warrant shall be
required by reason of the setting of such record date.
- 7 -
2.11 NOTICE OF ADJUSTMENT
Upon any adjustment of the number or kind of securities into which this Warrant
is exercisable, the Corporation shall give written notice thereof to the Holder,
which notice shall state the number of Warrant Shares or other securities
subject to this Warrant resulting from such adjustment, and shall set forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the request of the Holder, there shall be transmitted
promptly to the Holder a statement of a firm of independent chartered
accountants to the effect that such firm concurs in the Corporation's
calculation of the change.
2.12 NOTICE OF SPECIAL MATTERS
The Corporation covenants that, so long as this Warrant remains outstanding, it
will give notice to the Holder of its intention to fix a record date for any
event referred to in this Article 2 which may give rise to an adjustment in the
Exercise Price or the number of Warrant Shares issuable upon exercise of this
Warrant, and such notice shall specify the particulars of such event and the
record date and the effective date for such event; provided that the Corporation
shall only be required to specify in such notice such particulars of such event
as shall have been fixed and determined on the date on which such notice is
given. Such notice shall be given not less than ten (10) Business Days prior to
the applicable record date.
ARTICLE 3
LIMITATION ON TRANSFER
3.1 LIMITATIONS ON TRANSFER
This Warrant, the Warrant Shares or any interest therein or portion thereof
shall be fully transferable, in whole or in part, at any time and from time to
time, subject to applicable securities laws and any lockup agreement between the
Holder and the Corporation.
3.2 TRANSFER LEGEND
Each certificate representing (i) this Warrant, (ii) the Warrant Shares, (iii)
any other securities issued in respect of the Warrant Shares, upon any Stock
Split, stock dividend, capital reorganization, merger, consolidation or similar
event, shall (unless such securities have been qualified for distribution and
resale under applicable securities laws) be stamped or otherwise imprinted with
a legend substantially in the following form (in addition to any legend required
under any applicable securities laws):
UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF
THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF SHALL NOT TRADE SUCH SECURITIES BEFORE THE DATE THAT IS
FOUR MONTHS AND A DAY AFTER THE LATER OF (I) [THE DISTRIBUTION DATE],
AND (II) THE DATE THE CORPORATION BECAME A REPORTING ISSUER IN ANY
PROVINCE OR TERRITORY.
- 8 -
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A SUBSCRIPTION
AGREEMENT, DATED AS OF o , BY AND AMONG THE CORPORATION AND THE
INVESTORS REFERRED TO THEREIN (THE "SUBSCRIPTION AGREEMENT") AND THE
HOLDER OF THE CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO
BE BOUND BY ALL APPLICABLE PROVISIONS OF THE SUBSCRIPTION AGREEMENT.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A REGISTRATION RIGHTS
AGREEMENT, DATED AS OF o , BY AND AMONG THE CORPORATION AND THE
INVESTORS (THE "REGISTRATION RIGHTS AGREEMENT") AND THE HOLDER OF THE
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL APPLICABLE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT. NO
TRANSFER OF THIS WARRANT SHALL BE MADE WITHOUT COMPLYING WITH THE
PROVISIONS OF THIS WARRANT."
ARTICLE 4
WARRANTIES AND COVENANTS
4.1 GENERAL COVENANTS, RESPONSIBILITIES AND WARRANTIES OF THE CORPORATION
(a) The Corporation represents and warrants that it is duly authorized
to enter into and perform its obligations under this Warrant.
(b) The Corporation shall at all times reserve and keep available free
from pre-emptive rights, out of the aggregate of its authorized
unissued Common Shares, for the purpose of enabling it to satisfy
any obligation to issue Common Shares upon exercise of this
Warrant, the full number of Warrant Shares deliverable upon the
exercise thereof.
(c) The Corporation covenants that all Warrant Shares which may be
issued upon exercise of this Warrant and payment therefor will,
upon issue, be fully paid and non-assessable.
(d) In the event that the Common Shares are listed or quoted for
trading on any stock exchange or quotation system, the Corporation
shall use its commercially reasonable best efforts to cause all
Warrant Shares issued upon exercise of this Warrant to be listed
for trading on each such exchange.
(e) The Corporation represents and warrants that all necessary
corporate actions have been done and performed to create this
Warrant and to make this Warrant a legal, valid and binding
obligation of the Corporation. The Corporation will do, execute,
acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, all other acts, deeds and assurances
in law as may be reasonably required for the better accomplishing
and effecting of the intentions and provisions of this Warrant.
- 9 -
(f) The Corporation will give written notice of the issue of the
Warrant Shares upon the exercise of this Warrant, in such detail
as may be required, to each securities commission or similar
regulatory authority in each applicable jurisdiction in Canada in
which there is legislation or regulations requiring the giving of
any such notice.
(g) The Corporation will direct its transfer agent to, or if the
Corporation serves as its own transfer agent, the Corporation
shall, issue share certificates representing the number of Warrant
Shares issuable upon exercise of this Warrant as evidenced by a
duly executed Election Exercise Form or Net Issuance Form, and
subject to adjustment as set forth herein within five (5) Business
Days of receipt of such form by the Corporation.
(h) The Corporation represents and warrants that the issuance,
execution and delivery of this Warrant does not, and the issuance
of the Warrant Shares upon the exercise of this Warrant in
accordance with the terms hereof will not, (i) violate or
contravene the Corporation's articles, by-laws, or any law,
statute, regulation, rule, judgment or order applicable to the
Corporation, (ii) violate, contravene or result in a breach or
default under any contract, agreement or instrument to which the
Corporation is a party or by which the Corporation or any of it
assets are bound or (iii) require the consent or approval of or
the filing of any notice or registration with any person or entity
other than such consent or approval that has already been
obtained.
4.2 PAYMENT OF TAXES AND DUTIES
The Corporation shall pay all expenses in connection with, and all taxes
including all applicable stamp, registration, bank transaction and Other Taxes
(other than income tax and capital gains tax eligible on the income of the
Holder), if any, and all other governmental charges that may be properly imposed
on the Corporation in respect of the issue or delivery of Warrant Shares
issuable upon the exercise of this Warrant, and shall indemnify and hold the
Holder or its affiliates harmless from any taxes, interest and penalties which
may become payable by the Holder or its affiliates as a result of the failure or
delay by the Corporation to pay such taxes specified above. For the purposes
hereof, "OTHER TAXES" means any present or future stamp, documentary or similar
issue or transfer taxes or any other excise or property taxes, charges or
similar levies in respect of the issue or delivery of the Warrant Shares
issuable upon exercise of this Warrant.
ARTICLE 5
RULES OF INTERPRETATION
5.1 DEFINITIONS
Whenever used in this Warrant, the following words and terms shall have the
meanings set out below:
- 10 -
"BUSINESS DAY" means any day, other than a Saturday or Sunday, on which
chartered banks in Ottawa, Ontario, are open for commercial banking business
during normal banking hours;
"COMMON SHARES" means the common shares in the capital of the Corporation;
"EXPIRY DATE" means eighteen months following completion of an IPO;
"FAIR MARKET VALUE" means:
(a) if traded on one or more securities exchanges or markets, the
volume weighted average trading price on the securities exchange
where the majority of the trading volume and value of the listed
securities occurs, for the five trading days immediately preceding
the relevant date; or
(b) if there is no active public market, the fair market value of such
securities as determined in good faith by the Board of Directors,
but no discount or premium is to be applied to their valuation on
the basis of the securities constituting a minority block or a
majority block of securities;
"IPO" means any initial public offering in which the Common Shares are listed
and posted for trading, traded or quoted on one or more of the Toronto Stock
Exchange, New York Stock Exchange or the NASDAQ Global Market System;
"PARTIES" means the Holder and the Corporation;
"PERSON" means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof; and
"STOCK SPLIT" means:
(a) the issuance of Common Shares as a dividend or other distribution
on outstanding Common Shares;
(b) the subdivision of outstanding Common Shares into a greater number
of Common Shares; or
(c) the combination of outstanding Common Shares into a smaller number
of Common Shares.
5.2 CERTAIN RULES OF INTERPRETATION
In this Warrant:
(a) CURRENCY -- Unless otherwise specified, all references to money
amounts are to lawful currency of the United States.
- 11 -
(b) GOVERNING LAW -- This Warrant is a contract made under and shall
be governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable in
the Province of Ontario. Subject to Section 2.7, any action, suit
or proceeding arising out of or relating to this Warrant shall be
brought in the courts of the Province of Ontario and each of the
Parties hereby irrevocably submits to the non-exclusive
jurisdiction of such courts.
(c) HEADINGS -- Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the
construction or interpretation of this Warrant.
(d) NUMBER AND GENDER -- Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(e) TIME -- Time is of the essence in the performance of the Parties'
respective obligations under this Warrant.
(f) TIME PERIODS -- Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done
shall be calculated by excluding the day on which the period
commences and including the day on which the period ends and by
extending the period to the next Business Day following if the
last day of the period is not a Business Day.
(g) BUSINESS DAYS -- If any payment is required to be made or other
action is required to be taken pursuant to this Warrant on a day
which is not a Business Day, then such payment or action shall be
made or taken on the next Business Day.
(h) INCLUDING -- Where the word "including" or "includes" is used in
this Warrant, it means "including (or includes) without
limitation".
(i) NO STRICT CONSTRUCTION -- The language used in this Warrant is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any party.
(j) SEVERABILITY -- If, in any jurisdiction, any provision of this
Warrant or its application to the Corporation or the Holder 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 Warrant and
without affecting the validity or enforceability of such provision
in any other jurisdiction or without affecting its application to
the other party or other circumstances.
- 12 -
5.3 LANGUAGE
The Parties hereby confirm their express wish that this Warrant be drawn up in
the English language. Les parties reconnaissent leur volonte expresse que le
present certificat soit redige en langue anglaise.
[Signature page follows.]
IN WITNESS WHEREOF the Corporation has caused this Warrant to be signed by a
duly authorized officer.
DATED this ____ day of _______________, 200o.
MITEL NETWORKS CORPORATION
By:
--------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WARRANT CERTIFICATE]
SCHEDULE A
ELECTION TO EXERCISE
TO: MITEL NETWORKS CORPORATION
The undersigned, holder of the Warrant, hereby exercises the Warrant in respect
of ____________ common shares of Mitel Networks Corporation (or such number of
other securities or property to which such exercise entitles it in lieu thereof
or in addition thereto in accordance with the provisions of the Warrant) on the
terms specified in the Warrant.
The undersigned encloses the aggregate Exercise Price of $___________ in respect
of this exercise.
The Warrant Shares (as this term is defined in the Warrant) subscribed for will
be issued to the undersigned and certificate(s) representing the Warrant Shares
will be mailed to the address set forth below.
DATED this ___th day of _______________, 20 .
[o]
By:
--------------------------------------
Name: o
Title: o
Print below the address in full of the Holder.
Address: [o]
Registration Instructions: [o]
SCHEDULE B
NET ISSUANCE ELECTION FORM
TO: MITEL NETWORKS CORPORATION
The undersigned, holder of the Warrant hereby elects to receive, without payment
by the undersigned of any additional consideration, _________ Warrant Shares (as
that term is defined in the Warrant).
The Warrant Shares subscribed for will be issued to the undersigned and the
certificate(s) representing the Warrant Shares will be mailed to the address set
forth below.
DATED this ___th day of _______________, 20 .
[o]
By:
-------------------------------------
Name: o
Title: o
Print below the address in full of the Holder.
Address: [o]
Registration Instructions: [o]