Form 8-K MITEL NETWORKS CORP For: Jul 08

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): July 8, 2016

 

 

MITEL NETWORKS CORPORATION

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Canada		001-34699		98-0621254
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

350 Legget Drive

Ottawa, Ontario K2K 2W7

(Address of Principal Executive Offices) (Zip Code)

(613) 592-2122

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Item 1.02

Termination of a Material Definitive Agreement.

On April 15, 2016, Mitel Networks Corporation (“Mitel”) and Polycom, Inc. (“Polycom”) announced they had entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Mitel would acquire all of the shares of common stock of Polycom. On July 7, 2016, Polycom notified Mitel that Polycom received a binding offer from a third party to acquire Polycom and that Polycom’s board of directors concluded that such offer constituted a “Company Superior Proposal” (as defined in the Merger Agreement). Under the Merger Agreement, Mitel has a five-day “matching right” to negotiate revised terms to the Merger Agreement. Later on July 7, 2016, Mitel notified Polycom that Mitel waived its matching rights and agreed that the Merger Agreement would terminate upon receipt by Mitel of the $60 million termination fee payable by Polycom to Mitel under the Merger Agreement (the “Termination Fee”). On July 8, 2016, Polycom accepted and agreed to the termination of the Merger Agreement, paid the Termination Fee and the Merger Agreement was terminated. A copy of the notice of termination and waiver is attached as Exhibit 10.1 and is incorporated herein by reference.

 

Item 7.01

Regulation FD Disclosure.

On July 8, 2016, Mitel issued the press release attached hereto as Exhibit 99.1 and incorporated by reference herein.

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

10.1	Notice of Termination and Waiver

 

99.1	Press Release dated July 8, 2016.

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: July 8, 2016

 

Exhibit 10.1

MITEL NETWORKS CORPORATION

350 Legget Drive

Kanata, Ontario

Canada K2K 2W7

July 7, 2016

BY EMAIL

Polycom, Inc.

6001 America Center Drive

San Jose, California 95002

Attention: Sayed M. Darwish

Ladies and Gentlemen:

Reference is made to that certain Agreement and Plan of Merger, dated as of April 15, 2016 and as thereafter amended (the “Merger Agreement”), by and among Polycom, Inc. (the “Company”), Mitel Networks Corporation (“Parent”) and Meteor Two, LLC. Further reference is made to the letter from the Company to Parent, dated July 7, 2016, regarding the Company Acquisition Proposal received from Siris Capital Group, LLC, which the Company Board has determined is a Company Superior Proposal. Capitalized terms used but not otherwise defined herein have the respective meanings ascribed thereto in the Merger Agreement.

Parent hereby waives the “matching period” set forth in Section 5.02(b) of the Merger Agreement. Please indicate that the Company will terminate the Merger Agreement pursuant to Section 9.01(h) thereof (the “Termination”) by returning a signed copy of this letter and paying the Company Termination Fee in immediately available funds to Parent’s account set forth on Annex A hereto. The Termination shall be automatically effective upon receipt by Parent of the Company Termination Fee.

[Signature page follows]

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Please indicate your acceptance and agreement of the foregoing by signing where indicated below and returning a signed copy of this letter to Mitel pursuant to Section 10.05 of the Merger Agreement.

 

Accepted and Agreed as of

the date first written above:

POLYCOM, INC.

 

By:		/s/ Laura J. Durr
		Name: Laura J. Durr Title:   Chief Financial Officer             & Executive Vice President

 

cc:	Wilson Sonsini Goodrich & Rosati, P.C.

One Market Plaza

Spear Tower, Suite 3300

San Francisco, CA 94105

Attention: Michael S. Ringler

Email: [email protected]

Morrison & Foerster LLP

425 Market Street

San Francisco, CA 94105

Attention: Robert S. Townsend

Email: [email protected]

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

Attention: Adam M. Givertz

Email: [email protected]

 

2

Exhibit 99.1

Media Release

 

Mitel Responds to Notification from Polycom of Superior Proposal

 

•

Waives right to match consideration payable to Polycom stockholders

•

Merger Agreement with Polycom will be terminated and termination fee paid

OTTAWA, July 8 , 2016 – Mitel (Nasdaq: MITL) (TSX:MNW) today announced that it has received notice from Polycom (Nasdaq: PLCM) of a superior proposal from a third party, invoking the matching right period under Mitel’s existing merger agreement with Polycom. In response, Mitel has notified Polycom that it will not increase the consideration payable to Polycom stockholders under the merger agreement and that Mitel has waived its matching rights. As a result of Mitel’s response, Polycom has indicated that it will promptly terminate the merger agreement and pay Mitel the $60 million termination fee concurrently with termination.

“Mitel shareholders, customers and employees know that we follow a rigorous and disciplined approach to mergers and acquisitions. The agreement announced on April 15 resulted from a detailed due diligence and negotiation process that we feel accurately determined fair value for Polycom. We feel it would not be in the best interest of Mitel shareholders to adjust the existing agreement,” said Rich McBee, President and CEO of Mitel. “While I am disappointed that this particular transaction will not move forward, I am confident in Mitel’s future as an industry leader and as a market consolidator. I wish our colleagues at Polycom, with whom we have worked closely for the past several months, ongoing success in the future.”

As previously announced, Mitel’s Annual General Meeting will be held at the Brookstreet Hotel, 525 Legget Drive, Ottawa (Kanata), Ontario, K2K 2W2, beginning at 10:00 a.m., Eastern time, on July 29, 2016. However, shareholders will no longer be asked to approve the issuance of Mitel common shares in connection with the acquisition of Polycom or increase the number of shares reserved for issuance under Mitel’s equity incentive plan.

Forward Looking Statements

Some of the statements in this communication are forward-looking statements (or forward-looking information) within the meaning of applicable U.S. and Canadian securities laws. These include statements using the words believe, target, outlook, may, will, should, could, estimate, continue, expect, intend, plan, predict, potential, project and anticipate, and similar statements which do not describe the present or provide information about the past. There is no guarantee that the expected events or expected results will actually occur. Such statements reflect the current views of management of Mitel and are subject to a number of risks and uncertainties. These statements are based on many assumptions and factors, including general economic and market conditions, industry conditions, operational and other factors. Any changes in these assumptions or other factors could cause actual results to differ materially from current expectations. All forward-looking statements attributable to Mitel, or persons acting on its behalf, are expressly qualified in their entirety by the cautionary statements set forth in this paragraph. Undue reliance should not be placed on such statements. In addition, material risks that could cause actual results to differ from forward-looking statements include: the inherent uncertainty associated with financial or other projections; the anticipated size of the markets and continued demand for Mitel products and services; access to available financing on a timely basis and on reasonable terms; the integration of Mavenir and the

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Media Release

 

ability to recognize the anticipated benefits from the acquisition of Mavenir; Mitel’s ability to achieve or sustain profitability in the future; fluctuations in quarterly and annual revenues and operating results; fluctuations in foreign exchange rates; current and ongoing global economic instability, political unrest and related sanctions; intense competition; reliance on channel partners for a significant component of sales; dependence upon a small number of outside contract manufacturers to manufacture products; and, Mitel’s ability to successfully implement and achieve its business strategies, including its growth of the company through acquisitions and the integration of recently acquired businesses and realization of synergies. Additional risks are described under the heading “Risk Factors” in Mitel’s Annual Report on Form 10-K for the year ended December 31, 2015 filed with the U.S. Securities and Exchange Commission (the “SEC”) and Canadian securities regulatory authorities on February 29, 2016. Forward-looking statements speak only as of the date they are made. Except as required by law, Mitel has no intention or obligation to update or to publicly announce the results of any revisions to any of the forward-looking statements to reflect actual results, future events or developments, changes in assumptions or changes in other factors affecting the forward-looking statements.

About Mitel

A global market leader in enterprise and mobile communications powering more than 2 billion business connections and 2 billion mobile subscribers every day, Mitel (Nasdaq: MITL) (TSX:MNW) helps businesses and mobile carriers connect, collaborate and provide innovative services to their customers. Our innovation and communications experts serve more than 60 million business users in more than 100 countries, and 130 mobile service providers including 15 of the top 20 mobile carriers in the world. That makes us unique, and the only company able to provide a bridge between enterprise and mobile customers. For more information, go to www.mitel.com and follow us on Twitter @Mitel.

Mitel is the registered trademark of Mitel Networks Corporation.

All other trademarks are the property of their respective owners.

MITL-F

Contact Information Mitel:

 

Media and Industry Analysts – Americas Amy MacLeod 613-691-3317 [email protected]		Media – EMEA/AP Duncan Miller +44 (0) 1291 612 646 [email protected]		Investors Michael McCarthy 469-574-8134 [email protected]

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