Exhibit 4.16
AMENDING AGREEMENT
THIS AMENDING AGREEMENT made effective as of April 23, 2004.
BETWEEN:
MITEL NETWORKS CORPORATION, a corporation incorporated under the
laws of Canada,
(the "Corporation")
- and -
ZARLINK SEMICONDUCTOR INC., a corporation incorporated under the
laws of Canada,
("Zarlink")
RECITALS:
A. The Corporation and Zarlink are party to a supply agreement (the "Supply
Agreement") dated February 16, 2001, as amended.
B. Clause 21(A)(ii) of the Supply Agreement provides that the Supply
Agreement may be terminated by one party in certain prescribed
circumstances where a change occurs in the constitution or circumstances
of the other party, as more particularly set forth therein.
C. In connection with a proposed financing transaction pursuant to which new
investors of the Corporation will subscribe for certain preferred shares
in the capital of the Corporation (the "Financing"), and in connection
with which the Corporation proposes to effect certain amendments to its
constating documents as set out in the management proxy circular and
related shareholder meeting materials of the Corporation dated March 26,
2004 (the "Meeting Materials"), a copy of which has been provided to
Zarlink, the Corporation and Zarlink now desire to provide for certain
acknowledgements and amendments with respect to the Supply Agreement.
THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. Acknowledgement
Zarlink hereby acknowledges and agrees, for purposes of clause
21(A)(ii) of the Supply Agreement, that:
(a) the Corporation proposes to effect certain amendments to its
constating documents in connection with the Financing, substantially
as described in the Meeting Materials;
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(b) such proposed amendments are not materially detrimental to Zarlink's
interests and will not impede the Corporation's ability to carry out
its obligations under the Supply Agreement; and
(c) such proposed amendments shall not give rise to a right of Zarlink
to terminate the Supply Agreement.
2. Amendment
The Supply Agreement is hereby amended as follows: Clause 21(A)(ii) is
hereby deleted in its entirety.
3. Binding Amendment
This Amending Agreement, being duly executed by an authorized
representative of each of the Corporation and Zarlink, constitutes a valid
and binding amendment to the Supply Agreement in accordance with section
32 thereof.
4. General
(a) This Amending Agreement and the Supply Agreement constitute the
entire agreement between the parties with respect to the subject
matter hereof and thereof and cancel and supersede any prior
understandings and agreements between the parties with respect to
such subject matter. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, express,
implied or statutory, between the parties to this Amending Agreement
other than those expressly set forth herein and in the Supply
Agreement.
(b) Except as provided in this Amending Agreement, in all other respects
the Supply Agreement remains in full force and effect.
(c) Each of the parties hereto 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
Amending Agreement, and each party shall provide such further
documents or instruments required by any other party as may be
reasonably necessary or desirable to effect the purpose of this
Amending Agreement and carry out its provisions.
(d) This Amending Agreement shall be construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable
therein and shall be treated in all respects as an Ontario contract.
(e) This Amending Agreement may be executed in several counterparts,
each of which, when executed by a party hereto, shall be deemed to
be an original and such counterparts shall together constitute one
and the same instrument.
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IN WITNESS OF WHICH the parties have executed this Amending Agreement.
MITEL NETWORKS CORPORATION
By:
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Name:
Title:
ZARLINK SEMICONDUCTOR INC.
By:
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Name:
Title:
