Exhibit 4.38
(TECHNOLOGY PARTNERSHIPS CANADA LOGO) TARTENARIAT TECHNOLOGIQUE CANADA
An Agency of Industry Canada Un organisme d'Industrie Canada
TPC PROJECT NO. 720-481443
AMENDMENT NO. 2
TECHNOLOGY PARTNERSHIPS CANADA
AMENDMENT AGREEMENT
THIS AGREEMENT made
BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of Industry
(hereinafter referred to as the "MINISTER")
AND: MARCH NETWORKS CORPORATION
(hereinafter referred to as "a PROPONENT" or "MARCH NETWORKS").
AND: MITEL NETWORKS CORPORATION
(hereinafter referred to as "a PROPONENT" or "MITEL NETWORKS")
AND: MITEL KNOWLEDGE CORPORATION
(hereinafter referred to as "a PROPONENT" or "MITEL KNOWLEDGE")
Collectively referred to as "the PROPONENTS".
INTRODUCTION
(i) The Minister and the Proponents entered into a Contribution Agreement dated
the 10th day of October, 2002 under the Technology Partnerships Canada
Program (the "Contribution Agreement"); and
(ii) The Contribution Agreement was amended by letter dated March 27, 2003, now
called Amendment Number 1; and
(iii) The Minister and the Proponents now wish to amend the Contribution
Agreement.
IN CONSIDERATION OF THEIR RESPECTIVE OBLIGATIONS SET OUT IN THE CONTRIBUTION
AGREEMENT, THE PARTIES AGREE TO AMEND THE CONTRIBUTION AGREEMENT AS FOLLOWS:
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Page 2
1. This Amendment must be signed by the Recipient and received by the Minister
within thirty (30) days of its signature on behalf of the Minister, failing
which it will be null and void.
2. In Article 3.2:
DELETE: the date "September 30th, 2004"; and
REPLACE: with the date "March 31st, 2005".
3. In Article 4.3:
DELETE: the Fiscal Year Contribution amounts in their entirety; and
REPLACE: with the following Fiscal Year Contribution amounts:
"2002/2003 $29,577,660
2003/2004 $15,440,000
2004/2005 $14,982,340".
4. In Article 7.2:
DELETE: the name "Dr. ▇▇▇▇▇▇ ▇▇▇▇▇" and the title "Chief Operating
Officer" for March Networks Corporation, and
REPLACE: with the name "▇▇▇▇▇ ▇▇▇▇▇" and the title "President and Chief
Executive Officer".
5. In Article 8.1:
DELETE: the date "September 30th, 2004"; and
REPLACE: with the date "March 31st, 2005".
6. In Schedule 8, Article 4.8:
DELETE: the name "Dr. ▇▇▇▇▇▇ ▇▇▇▇▇" and the title "Chief Operating
Officer" for March Networks Corporation, and
REPLACE: with the name "▇▇▇▇▇ ▇▇▇▇▇" and the title "President and Chief
Executive Officer".
Page 3
IN WITNESS WHEREOF the parties hereto have executed this Amendment Agreement
through duly authorized representatives.
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, as represented by the Minister of Industry
Per: /s/ ▇▇▇▇▇▇ Cuevremont Apr. 27, 2004
------------------------------- Date
Technology Partnerships Canada
▇▇▇▇▇▇ CUEVREMONT - DIRECTOR
Name & Title
MARCH NETWORKS CORPORATION]
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇ May 02, 2004
------------------------------- Date
▇▇▇▇▇ ▇▇▇▇▇ President/CEO
Name & Title
MITEL NETWORKS CORPORATION]
Per: /s/ ▇▇▇ ▇▇▇▇▇ 29 April, 2004
------------------------------- Date
▇▇▇ ▇▇▇▇▇, CEO
Name & Title
MITEL KNOWLEDGE CORPORATION]
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ April 30, 2004
------------------------------- Date
▇▇▇▇ ▇▇▇▇▇▇▇▇, CFO
Name & Title
(TECHNOLOGY PARTNERSHIPS CANADA LOGO) PARTENARIAT TECHNOLOGIQUE CANADA
An Agency of Industry Canada Un organisms d'Industrie Canada
TPC PROJECT NO. 720-481443
AMENDMENT NO.3
TECHNOLOGY PARTNERSHIPS CANADA
AMENDMENT AGREEMENT
THIS AGREEMENT made
Between: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the
Minister of Industry (hereinafter referred to as the "Minister")
And: MARCH NETWORKS CORPORATION, a corporation duly incorporated under the
laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "a PROPONENT" or "MARCH NETWORKS").
And: MITEL NETWORKS CORPORATION, a corporation duly incorporated under the
laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "a PROPONENT" or "MITEL NETWORKS").
And MITEL KNOWLEDGE CORPORATION
(hereinafter referred to as "a PROPONENT" or "MITEL KNOWLEDGE")
Collectively referred to as the PROPONENTS.
WHEREAS:
1. The Minister and the Proponents entered into a Contribution Agreement dated
the 10th day of October, 2002 pursuant to the Technology Partnerships
Canada Program (the "Contribution Agreement"); and
2. The Contribution Agreement was amended by letter dated March 27, 2003
entitled Amendment Number 1; and
3. Amendment Number 2 executed on April 27, 2004 further amended the
Contribution Agreement, and
4. Mitel Knowledge has pursuant to subsection 211 (4) of the Canada Business
Corporations Act provided a Statement of Intent to Dissolve Mitel Knowledge
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2
Corporation to the Director under this Act. This Amendment Agreement is
contingent upon the receipt by Mitel Knowledge of a Certificate of intent
to dissolve pursuant to subsection 211(5) and section 262 of the Canada
Business Corporations Act and remittance of same to the Minister as
evidence that it has been dissolved.
5. Mitel Knowledge has requested and the Minister has agreed following
completion of an extensive case review to delete Mitel Knowledge as a
Proponent to this Contribution Agreement pending receipt of the certificate
of dissolution. Therefore, in consideration of their respective obligations
set out in the Contribution Agreement the Minister and the Proponents now
wish to further amend the Contribution Agreement.
THEREFORE, the Parties agree as follows:
1. The above preamble is part of this Amendment Agreement (the "Agreement").
2. Unless the context dictates otherwise, words and phrases defined in the
Contribution Agreement have the same meaning in this Agreement
3. PAGE 1 delete:
"And: MITEL KNOWLEDGE CORPORATION, a corporation duly incorporated under
the laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "a PROPONENT" or "MITEL KNOWLEDGE")."
4. ARTICLE 4.3 delete and replace with the following:
4.3 Unless the Minister agrees otherwise in writing, and subject to the
overall limit stipulated in section 4.1 above, the amount of the
Contribution will not exceed the following amounts in the relevant
Fiscal Years of the Project as follows:
"2002/03: $29,577,660
2003/04: $15,312,078
2004/05: $15,110,262"
The Minister will consider any request to reprofile these funds, but the
Minister will have no obligation to pay any greater amount in any of the
said Fiscal Years except to the extent that such reprofiling will have been
agreed to by the Minister.
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4. ARTICLE 7.2 delete address for Mitel Knowledge Corporation
"▇▇▇▇ ▇▇▇▇▇▇▇▇"
Chief financial Officer
Mitel Knowledge Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇"
6. ARTICLE 8.15 delete in its entirety.
All provisions of the Contribution Agreement remain in full force and effect,
except as modified by this Amendment Agreement which will enter into force upon
receipt by the Minister of the Certificate of Dissolution issued by the
Director of Corporations to Mitel Knowledge.
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IN WITNESS WHEREOF the parties hereto have executed this Amendment Agreement
through duly authorized representatives.
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, as represented by the Minister of Industry
Per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Sept 9, 2004
-------------------------------- Date
Technology Partnerships Canada
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Director, Enabling Technologies Directorate
MARCH NETWORKS CORPORATION
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Sept 14, 04
-------------------------------- Date
▇▇▇▇▇ ▇▇▇▇▇ President & CEO
Name & Title
MITEL NETWORKS CORPORATION
Per: /s/ ▇▇▇ ▇▇▇▇▇ Sept 16, 04
-------------------------------- Date
▇▇▇ ▇▇▇▇▇ CEO
Name & Title
MITEL KNOWLEDGE CORPORATION
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Sept 10, 2004
-------------------------------- Date
▇▇▇▇ ▇▇▇▇▇▇▇▇ CFO
Name & Title
(TECHNOLOGY PARTNERSHIPS CANADA LOGO) PARTENARIAT TECHNOLOGIQUE CANADA
An Agency of Industry Canada Un organisme d'Industrie Canada
TPC PROJECT NO. 720-481443
AMENDMENT NO.4
TECHNOLOGY PARTNERSHIPS CANADA
AMENDMENT AGREEMENT
THIS AGREEMENT MADE
Between: HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of Industry
(hereinafter referred to as the "Minister")
And: MARCH NETWORKS CORPORATION, a corporation duly incorporated under the
laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "the Proponent" or "March Networks").
And: MITEL NETWORKS CORPORATION, a corporation duly incorporated under
the laws of Canada, having its head office located at Ottawa,
Ontario (hereinafter referred to as "the Proponent" or "Mitel
Networks").
And: MARCH HEALTHCARE CORPORATION, a corporation duly incorporated under
the laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "the Proponent" or "March Healthcare").
Collectively referred to as the PROPONENTS, and acting herein as
joint and several.
INTRODUCTION
1. The Minister, March Networks, Mitel Networks and Mitel Knowledge
Corporation entered into a Contribution Agreement dated the 10th day of
October, 2002 under the Technology Partnerships Canada Program (the
"Contribution Agreement"); and
2. The Contribution Agreement was amended by letter dated March 27, 2003
entitled Amendment Number 1; and
3. Amendment Number 2 executed on April 27, 2004 further amended the
Contribution Agreement, and
4. Amendment Number 3 executed on September 9, 2004 further amended the
Contribution
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2
Agreement, and
5. March Networks has requested and the Minister has agreed to insert March
Healthcare as a Proponent, to this Contribution Agreement.
IN CONSIDERATION OF THEIR RESPECTIVE OBLIGATIONS SET OUT IN THE CONTRIBUTION
AGREEMENT, THE PARTIES AGREE TO AMEND THE CONTRIBUTION AGREEMENT AS FOLLOWS:
1. At PAGE 1, insert:
"And: MARCH HEALTHCARE CORPORATION, a corporation duly incorporated under
the laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "the Proponent" or "March Healthcare")."
2. At ARTICLE 7.2, insert:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Chief Operating Officer
March Healthcare Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
3. At Page 6, insert new ARTICLE 8.3.4
"The Minister consents to the transfer of all Intellectual Property related
to the March Networks tele-health solution be transferred to March
Healthcare, effective as of the effective date of this Amendment Agreement
No. 4 since March Healthcare is now one of the Proponents under this
Agreement. The parties agree that March Healthcare will be responsible for
its compliance with the terms and conditions of the Contribution Agreement
for that portion of the Project that relates to the tele-health solution."
ALL PROVISIONS OF THE CONTRIBUTION AGREEMENT REMAIN IN FULL FORCE AND EFFECT,
EXCEPT AS MODIFIED BY THIS AMENDMENT AGREEMENT.
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IN WITNESS WHEREOF the parties hereto have executed this Amendment Agreement
through duly authorized representatives.
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, as represented by the Minister of Industry
Per: /s/ Kash Ram 2005-06-15
----------------------------------------- Date
Technology Partnerships Canada
KASH RAM, DIRECTOR, ENABLING TECHNOLOGIES
Name & Title
MARCH NETWORKS CORPORATION
Per: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------- 2005-06-23
▇▇▇ ▇▇▇▇▇▇, CFO Date
Name & Title
MITEL NETWORKS CORPORATION
Per: /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------------- 27 JUNE 05
▇▇▇ ▇▇▇▇▇, CEO Date
Name & Title
MARCH HEALTHCARE CORPORATION
Per: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- June 20/05
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, COO Date
Name & Title
(TECHNOLOGY PARTNERSHIPS CANADA LOGO) PARTENARIAT TECHNOLOGIQUE CANADA
An Agency of Industry Canada Un organisme d'Industrie Canada
TPC PROJECT NO. 720-481443
AMENDMENT NO. 5
TECHNOLOGY PARTNERSHIPS CANADA
AMENDMENT AGREEMENT
THIS AGREEMENT MADE
Between: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the
Minister of Industry (hereinafter referred to as the "Minister")
And: MARCH NETWORKS CORPORATION, a corporation duly incorporated under the
laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "the Proponent" or "March Networks").
And: MITEL NETWORKS CORPORATION, a corporation duly incorporated under the
laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "the Proponent" or "Mitel Networks").
And: MARCH HEALTHCARE CORPORATION, a corporation duly incorporated under
the laws of Canada, having its head office located at Ottawa, Ontario
(hereinafter referred to as "the Proponent" or "March Healthcare").
Collectively referred to as the PROPONENTS, and acting herein as
joint and several.
INTRODUCTION
1. The Minister, March Networks, Mitel Networks and Mitel Knowledge
Corporation entered into a Contribution Agreement dated the 10th day of
October, 2002 under the Technology Partnerships Canada Program (the
"Contribution Agreement"); and
2. The Contribution Agreement was amended by letter dated March 27, 2003
entitled Amendment Number 1; and
3. Amendment Number 2 executed on April 27, 2004 further amended the
Contribution Agreement, and
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2
4. Amendment Number 3 executed on September 9, 2004 further amended the
Contribution Agreement, and
5. Amendment Number 4 executed on June 27, 2005 further amended the
Contribution Agreement, and
6. The Minister and the Proponent now wish to amend the Contribution
Agreement.
IN CONSIDERATION OF THEIR RESPECTIVE OBLIGATIONS SET OUT IN THE CONTRIBUTION
AGREEMENT, THE PARTIES AGREE TO AMEND THE CONTRIBUTION AGREEMENT AS FOLLOWS:
1. At Article 8, entitled "Special Conditions":
DELETE:
8.6 CONTRACTUAL BENEFITS TO CANADA
In the context of Schedule 4, Section B, Subparagraph 1b), the Minister hereby
consents that the Proponents may contract all of their manufacturing
requirements at arm's length outside of the Proponents companies. Furthermore,
the Minister hereby acknowledges that BreconRidge Manufacturing Solutions
Corporation may manufacture the resulting products outside Canada; any other
contract related to manufacturing to be carried on out of Canada shall require
the prior written consent of the Minister.
AND SUBSTITUTE WITH THE FOLLOWING:
8.6 CONTRACTUAL BENEFITS TO CANADA
In the context of Schedule 4, Section B, Subparagraph 1b), the Minister hereby
consents as follows:
i) that the Proponents may contract all of their manufacturing
requirements at arm's length outside of the Proponents companies;
ii) that BrenconRidge Manufacturing Solutions Corporation may manufacture
the resulting products outside of Canada;
iii) that the Proponents may manufacture any and all of their resulting
IP-based products outside of Canada based on sound business, market
and competitive considerations including pricing and cost
competitiveness, profitability, local content regulations, and other
factors which may vary with time. The Proponents nevertheless agree
to make reasonable efforts to produce these products in Canada where
these considerations permit them; and,
iv) that the Proponents may license Intellectual Property outside of
Canada for the purpose of manufacturing their IP-based products
developed under the Project.
Any other contract related to manufacturing to be carried on out of Canada shall
require the prior written consent of the Minister.
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ALL PROVISIONS OF THE CONTRIBUTION AGREEMENT REMAIN IN FULL FORCE AND EFFECT,
EXCEPT AS MODIFIED BY THIS AMENDMENT AGREEMENT.
IN WITNESS WHEREOF the parties hereto have executed this Amendment Agreement
through duly authorized representatives.
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, as represented by the Minister of Industry
Per: /s/ ▇▇▇▇▇ ▇▇▇▇ Sept. 26/05
---------------------------------------------- Date
Technology Partnerships Canada
▇▇▇▇▇ ▇▇▇▇, A/Director - Enabling Technologies
MARCH NETWORKS CORPORATION
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Oct 1, 05
---------------------------------------------- Date
▇▇▇▇▇ ▇▇▇▇▇
President & CEO
Name & Title
MITEL NETWORKS CORPORATION
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 9/30/05
---------------------------------------------- Date
▇▇▇▇▇ ▇▇▇▇▇▇▇
CFO
Name & Title
4
MARCH HEALTHCARE CORPORATION
Per: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 3 OCT 05
---------------------------------------------- Date
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, COO
Name & Title