Form 8-K MITEL NETWORKS CORP For: Dec 16

 

 

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): December 16, 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 1.01.

Entry into a Material Definitive Agreement.

On December 16, 2016, the Board of Directors of Mitel Networks Corporation (the “Company”) approved and adopted an amendment to the form of indemnification agreement (the “Form of Indemnification Agreement”) for its directors and officers. It is expected that all directors and officers who are party to the current Form of Indemnification Agreement will enter into the amended Form of Indemnification Agreement with the Company as soon as practicable after the date hereof. The Form of Indemnification Agreement was amended to limit the circumstances in which the Board of Directors may exercise discretionary authority to advance defense costs to the directors and officers of the Company. The amendment to the Form of Indemnification Agreement did not result in any revisions or limitations to the indemnification protections provided to directors and officers of the Company under the Canada Business Corporations Act or the Company’s By-laws (as defined below).

The description of the amendment to the Form of Indemnification Agreement set forth above does not purport to be complete and is qualified in its entirety by the full text of the amended and restated Form of Indemnification Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

 

Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Amendment to Employment Agreement of Steven Spooner

The amended and restated employment agreement between the Company and Steven Spooner, Chief Financial Officer of the Company, dated March 12, 2010, was amended effective as of December 16, 2016.

The definition of Change of Control in the employment agreement was amended such that the following exception, previously contained in the definition of Change of Control, was deleted: transaction(s) shall not constitute a Change of Control to the extent that (i) the transaction is an acquisition by the employer of another entity, (ii) such acquisition is financed by the issuance of equity by the employer to a financial sponsor, and (iii) neither Terence Matthews, Francisco Partners or any of their respective affiliates disposes of any shares of the employer as a result of such transaction(s).

Except as amended, all other terms and conditions of the employment agreement remain in full force and effect.

A copy of the amendment will be filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016.

 

Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal year.

(a)

On December 16, 2016, the Board of Directors of the Company approved and adopted an amendment to By-law No. 1A of the Company (the “By-laws”), effective immediately, to increase the number of shares necessary to constitute a quorum at any meeting of the Company’s shareholders from 25% to 33 1/3%. The By-laws were amended in order to comply with corporate governance requirements of the Nasdaq Stock Exchange (“NASDAQ”) that will apply to the Company commencing on January 1, 2017, as the Company will no longer be eligible to rely upon NASDAQ foreign private issuer corporate governance exemptions thereafter.

The foregoing description of the amendment to the By-laws does not purport to be complete and is qualified in its entirety by reference to the full text of the amended and restated By-laws, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

 

Item 5.05

Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

 

(a)

On December 16, 2016, the Board of Directors of the Company approved and adopted an amendment to the Code of Business Conduct of the Company (the “Code”). The amendment to the Code provides the Board of Directors with authority to approve any waivers of violations of the Code by the Company’s executive officers or directors. The amendment to the Code also provides the Director of Global Business Ethics and Compliance with authority to approve any waivers of violations of the Code by any other employee of the Company. The Code was amended in order to comply with NASDAQ corporate governance requirements that will apply to the Company commencing on January 1, 2017, as the Company will no longer be eligible to rely upon NASDAQ foreign private issuer corporate governance exemptions thereafter.

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The amendment to the Code did not result in any explicit or implicit waiver of any provision of the Code in effect prior to the amendment. The foregoing description of the Code does not purport to be complete and is qualified in its entirety by reference to the full text of the amended Code, a copy of which is attached hereto as Exhibit 14.1 and incorporated herein by reference. The amended Code will also be posted on the Company’s website at www.mitel.com.

 

Item 9.01

Financial Statements and Exhibits

 

(d)

Exhibits

 

3.1		By-laws of the Company, as amended and restated on December 16, 2016
10.1		Form of Indemnification Agreement of the Company, as amended and restated on December 16, 2016
14.1		Code of Business Conduct of the Company, as amended and restated on December 16, 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: December 22, 2016

 

Exhibit 3.1

BY-LAW NO. 1A

a by-law relating generally to the transaction of the business and affairs of

MITEL NETWORKS CORPORATION

(the “Corporation”)

ARTICLE 1

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

 

1.1	Definitions

In this by-law and all other by-laws of the Corporation:

 

(a)

“the Act” means the Canada Business Corporations Act or any statute which may be substituted therefor, including the regulations thereunder, as amended from time to time;

 

(b)

“articles” means the articles of the Corporation, as defined in the Act, and includes any amendments thereto;

 

(c)

“board” means the board of directors of the Corporation;

 

(d)

“by-laws” means the by-laws of the Corporation in force as amended or restated from time to time;

 

(e)

“director” means a director of the Corporation as defined in the Act;

 

(f)

“meeting of shareholders” means an annual meeting of shareholders or a special meeting of shareholders;

 

(g)

“non-business day” means Saturday, Sunday and any other day that is a holiday as defined in the Interpretation Act (Canada);

 

(h)

“officer” means an officer of the Corporation as defined in the Act; and

 

(i)

“person” includes an individual, partnership, association, body corporate, trustee, executor, administrator or legal representative.

 

1.2	Interpretation

In this by-law and all other by-laws of the Corporation:

 

(a)

words importing the singular include the plural and vice-versa; and words importing gender include all genders; and

 

(b)

all words used in this by-law and defined in the Act shall have the meanings given to such words in the Act or in the related Parts thereof.

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ARTICLE 2

GENERAL BUSINESS

 

2.1	Registered Office

The registered office of the Corporation shall be in the province within Canada specified in the articles and at such place and address therein as the board may from time to time determine.

 

2.2

Seal

The Corporation may have a seal which shall be adopted and may be changed by the board.

 

2.3	Financial Year

Until otherwise determined by the board, the financial year of the Corporation shall end on the April 30th in each year.

 

2.4	Execution of Instruments

Deeds, transfers, assignments, contracts, obligations, certificates and other instruments shall be signed on behalf of the Corporation by any one director or officer or as otherwise directed by the board.

 

2.5	Execution in Counterpart, by Facsimile, and by Electronic Signature

 

(a)

Subject to the Act, any instrument or document required or permitted to be executed by one or more persons on behalf of the Corporation may be signed by means of secure electronic signature (as defined in the Act) or facsimile;

 

(b)

Any instrument or document required or permitted to be executed by one or more persons may be executed in separate counterparts, each of which when duly executed by one or more of such persons shall be an original and all such counterparts together shall constitute one and the same such instrument or document;

 

(c)

Subject to the Act, wherever a notice, document or other information is required under the Act or the by-laws to be created or provided in writing, that requirement may be satisfied by the creation and/or provision of an electronic document.

Notwithstanding the foregoing, the board may from time to time direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed.

 

2.6	Voting Rights in Other Bodies Corporate

Any officer or director may execute and deliver proxies and take any other steps as in the officer’s or director’s opinion may be necessary or desirable to permit the exercise on behalf of

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the Corporation of voting rights attaching to any securities held by the Corporation. In addition, the board may from time to time direct the manner in which and the persons by whom any particular voting rights or class of voting rights may or shall be exercised.

 

2.7	Banking Arrangements

The banking business of the Corporation, or any part or division of the Corporation, shall be transacted with such bank, trust company or other firm or body corporate as the board may designate, appoint or authorize from time to time and all such banking business, or any part thereof, shall be transacted on the Corporation’s behalf by such one or more officers or other persons as the board may designate, direct or authorize from time to time and to the extent thereby provided.

ARTICLE 3

BORROWING

 

3.1

Borrowing

Without limit to the powers of the board as provided in the Act, the board may from time to time on behalf of the Corporation:

 

(a)

borrow money upon the credit of the Corporation;

 

(b)

issue, reissue, sell or pledge debt obligations of the Corporation;

 

(c)

to the extent permitted by the Act, give, directly or indirectly, financial assistance to any person by means of a loan, a guarantee to secure the performance of an obligation or otherwise; and

 

(d)

mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.

 

3.2	Delegation

Subject to the Act, the board may from time to time delegate to a director, a committee of directors, an officer or such other person or persons so designated by the board all or any of the powers conferred on the board by section 3.1 or by the Act to such extent and in such manner as the board shall determine at the time of each such delegation.

ARTICLE 4

DIRECTORS

 

4.1	Duties of Directors

The board shall manage or supervise the management of the business and affairs of the Corporation.

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4.2	Qualification

At least twenty-five per cent of the directors of the Corporation must be resident Canadians. However, if the Corporation has less than four directors, at least one director must be a resident Canadian.

 

4.3	Eligibility Requirements at Meetings

The board shall not transact business at a meeting, other than filling a vacancy in the board, unless at least twenty-five percent of the directors present are resident Canadians, or, if the Corporation has less than four directors, at least one of the directors present is a resident Canadian, except where

 

(a)

a resident Canadian director who is unable to be present approves in writing or by telephone or other communications facilities the business transacted at the meeting; and

 

(b)

the required number of resident Canadian directors would have been present had that director been present at the meeting.

 

4.4

Quorum

A majority of the number of directors in office from time to time or, in the event that there are less than four directors, one director shall constitute a quorum for the transaction of business at any meeting of the board. Notwithstanding vacancies, a quorum of directors may exercise all of the powers of the board.

 

4.5	Calling of Meetings

Meetings of the board shall be held from time to time at such place within or outside Canada, on such day and at such time as the board, the chairperson of the board, the chief executive officer, the president or any two directors may determine.

 

4.6	Notice of Meetings

Notice of the time and place of each meeting of the board shall be given to each director not less than 48 hours before the time when the meeting is to be held and need not be in writing. A notice of meeting need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business to be specified, including, if required by the Act, any proposal to:

 

(a)

submit to the shareholders any question or matter requiring the approval of the shareholders;

 

(b)

fill a vacancy among the directors or in the office of auditor, or appoint additional directors;

 

(c)

issue securities;

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(d)

issue shares of a series under section 27 of the Act;

 

(e)

declare dividends;

 

(f)

purchase, redeem or otherwise acquire shares issued by the Corporation;

 

(g)

pay a commission referred to in section 41 of the Act;

 

(h)

approve a management proxy circular referred to in Part XIII of the Act;

 

(i)

approve a take-over bid circular or directors’ circular referred to in Part XVII of the Act;

 

(j)

approve any financial statements referred to in section 155 of the Act; or

 

(k)

adopt, amend or repeal by-laws.

 

4.7	First Meeting of New Board

Provided a quorum of directors is present, each newly elected board may without notice hold its first meeting following the meeting of shareholders at which such board is elected.

 

4.8	Chairperson and Secretary

The chairperson of the board or, in the chairperson’s absence, the lead director, or in lead directors’ absence, the chief executive officer or, in the chief executive officer’s absence, the president or, in the president’s absence, a vice-president shall be chairperson of any meeting of the board. If none of these officers are present, the directors present shall choose one of their number to be chairperson. The secretary or an assistant secretary of the Corporation shall act as secretary at any meeting of the board and, if the secretary or an assistant secretary of the Corporation is absent, the chairperson of the meeting shall appoint a person who need not be a director to act as secretary of the meeting.

 

4.9	Votes to Govern

At all meetings of the board any question shall be decided by a majority of the votes cast on the question and in the case of an equality of votes the chairperson of the meeting shall not be entitled to a second or casting vote. Any question at a meeting of the board shall be decided by a show of hands unless a ballot is required or demanded.

 

4.10	Participation by Telephonic, Electronic or other Communication Facility

Subject to the Act, a director may participate in a meeting of directors or of a committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. A director participating in a meeting by such means shall be deemed to be present at that meeting. A meeting of directors held by telephonic, electronic or other communication facility shall be deemed to be held at the place where the registered office of the Corporation is located.

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4.11	Electronic Voting

Subject to the Act, a director participating in a meeting by telephonic, electronic or other communication facility in accordance with section 4.10 may vote by means of such facility.

 

4.12	Conflict of Interest

A director or officer of the Corporation who is a party to a material transaction or material contract, or proposed material transaction or material contract with the Corporation, is a director or an officer of, or acts in a capacity similar to a director or officer of, or has a material interest in any person who is a party to a material transaction or material contract or proposed material transaction or material contract with the Corporation shall disclose the nature and extent of his interest at the time and in the manner provided in the Act. Except as provided in the Act, no such director of the Corporation shall vote on any resolution to approve any transaction. If a material transaction or material contract is made between the Corporation and one or more of its directors or officers, or between the Corporation and another person of which a director or officer of the Corporation is a director or officer or in which he has a material interest, the transaction is neither void nor voidable by reason only of that relationship, or by reason only that a director with an interest in the transaction or contract is present at or is counted to determine the presence of a quorum at a meeting of directors or committee of directors that authorized the transaction, if the director or officer disclosed his interest in accordance with the provisions of the Act and the transaction or contract was approved by the directors or the shareholders and it was reasonable and fair to the Corporation at the time it was approved.

ARTICLE 5

COMMITTEES

 

5.1	Audit Committee

The directors shall appoint from among their number an audit committee whose composition and function will conform with applicable law. The audit committee shall have the functions provided in the Act and as may be prescribed by any applicable law or regulatory authority to which the Corporation is required to comply.

 

5.2	Other Committees

The board may designate and appoint additional committees of directors and, subject to the limitations prescribed by the Act, may delegate to such committees any of the powers of the board.

 

5.3

Procedure

Subject to the Act and unless otherwise determined by the board, each committee shall have the power to fix its quorum at not less than a majority of its members, to elect its chairperson and to regulate its procedure.

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ARTICLE 6

OFFICERS

 

6.1	Appointment of Officers

The board may from time to time designate the offices of the Corporation, appoint persons to such offices, specify their duties and, subject to any limitations prescribed in the Act, may delegate to them powers to manage the business and affairs of the Corporation.

ARTICLE 7

PROTECTION OF DIRECTORS AND OFFICERS

 

7.1	Limitation of Liability

No director or officer shall be liable for:

 

(a)

the acts, receipts, neglects or defaults of any other director, officer, employee or agent of the Corporation or any other person;

 

(b)

any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired by, for, or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Corporation shall be loaned out or invested;

 

(c)

any loss or damage arising from the bankruptcy, insolvency or tortious act of any person, firm or corporation, including any person, firm or corporation with whom any moneys, securities or other assets belonging to the Corporation shall be lodged or deposited;

 

(d)

any loss, conversion, misapplication or misappropriation of or any damage resulting from any dealings with any moneys, securities or other assets belonging to the Corporation;

 

(e)

any other loss, damage or misfortune whatever which may happen in the execution of the duties of the director’s or officer’s respective office or in relation thereto,

unless the same shall happen by or through the director’s or officer’s failure to exercise the powers and to discharge the duties of the director’s or officer’s office honestly and in good faith with a view to the best interests of the Corporation, and in connection therewith, to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, provided that nothing herein contained shall relieve a director or officer from the duty to act in accordance with the Act or relieve such director or officer from liability for a breach of the Act.

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7.2	Indemnity of Directors and Officers

 

(a)

The Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation or another individual who acts or acted at the Corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by such individual in respect of any civil, criminal or administrative, investigative or other proceeding in which the individual is involved because of that association with the Corporation or other entity.

 

(b)

The Corporation may not indemnify an individual under paragraph (a) unless the individual:

 

(i)

acted honestly and in good faith with a view to the best interests of the Corporation or other entity for which the individual acted as a director or officer or in a similar capacity at the Corporation’s request, as the case may be; and

 

(ii)

in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his conduct was lawful.

 

(c)

The Corporation shall advance moneys to such individual for the costs, charges and expenses of a proceeding referred to in paragraph (a) provided such individual agrees in advance, in writing, to repay the moneys if the individual does not fulfill the condition of paragraph (b).

 

(d)

If required by an individual referred to in paragraph (a), the Corporation shall seek the approval of a court to indemnify such individual or advance moneys under paragraph (c) in respect of an action by or on behalf of the Corporation or other entity to procure a judgment in its favour, to which such individual is made a party because of the individual’s association with the Corporation or other entity as described in paragraph (a), against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfills the conditions set out in paragraph (b).

 

(e)

Notwithstanding paragraph (a), an individual referred to in paragraph (a) is entitled to indemnity from the Corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the Corporation or other entity as described in paragraph (a), if the individual seeking indemnity:

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(i)

was not adjudged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and

 

(ii)

fulfills the conditions set out in paragraph (b).

 

7.3	Indemnification of Others

Subject to the Act, the Corporation may indemnify its employees, agents and such persons, other than those referred to in section 7.2, as the directors may determine.

 

7.4

Insurance

The Corporation may purchase and maintain insurance for the benefit of an individual referred to in section 7.1 and 7.2 against any liability incurred by such individual if the individual acts or acted in that capacity at the Corporation’s request.

 

7.5	Indemnities Not Exclusive

Each of the provisions of this Article 7 shall be in addition to and not in substitution for or derogation from any rights to which any person referred to herein may otherwise be entitled.

ARTICLE 8

MEETINGS OF SHAREHOLDERS

 

8.1	Annual Meetings

Subject to the Act, the annual meeting of shareholders shall be held on such day and at such time in each year as the board, or the chairperson of the board, or the vice-chairperson of the board, or the president in the absence of the chairperson or vice-chairperson of the board, may from time to time determine, for the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing auditors and for the transaction of such other business as may properly be brought before the meeting.

 

8.2	Place of Meetings

Subject to the Act, meetings of shareholders shall be held at such place within Canada as the directors shall determine or at such place outside Canada as may be specified in the articles or agreed to by all of the shareholders entitled to vote at the meeting.

 

8.3	Notice of Meetings

Subject to the Act, notice of the time and place of each meeting of shareholders shall be sent not less than 21 days nor more than 60 days before the meeting to each shareholder entitled to vote at the meeting, to each director and to the auditor of the Corporation.

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8.4	Participation in Meeting by Electronic Means

Subject to the Act and the consent of the directors or all of the shareholders entitled to vote at the meeting, any person entitled to attend a meeting of shareholders may participate in the meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the Corporation makes available such a communication facility. A person participating in a meeting by such means shall be deemed to be present at the meeting. A meeting of shareholders held by electronic means shall be deemed to be held at the place where the registered office of the Corporation is located.

 

8.5	Electronic Meetings

Subject to the Act and the consent of the directors or all of the shareholders entitled to vote at the meeting, if the directors or the shareholders of the Corporation call a meeting of shareholders pursuant to the Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting.

 

8.6	Chairperson and Secretary

The chairperson of the board or, in the chairperson’s absence, the chief executive officer or, in the chief executive officer’s absence, the president or, in the president’s absence, a vice-president shall be chairperson of any meeting of shareholders. If none of these officers are present within 15 minutes after the time appointed for holding the meeting, the persons present and entitled to vote shall choose a chairperson from amongst themselves. The secretary or an assistant secretary of the Corporation shall act as secretary at any meeting of shareholders or, if the secretary or an assistant secretary of the Corporation be absent, the chairperson of the meeting shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers, who need not be shareholders, may be appointed by resolution or by the chairperson with the consent of the meeting.

 

8.7	Persons Entitled to be Present

The only persons entitled to be present at a meeting of shareholders shall be those persons entitled to vote thereat, the directors and auditors of the Corporation and others who, although not entitled to vote, are entitled or required under any provision of the Act or the articles or by-laws to be present at the meeting. Any other person may be admitted only on the invitation of the chairperson of the meeting or with the consent of the meeting.

 

8.8

Quorum

A quorum of shareholders is present at a meeting of shareholders if the holders of not less than 33 1/3% of the shares entitled to vote at the meeting are present in person or represented by proxy, provided that a quorum shall not be less than two persons. A quorum need not be present throughout the meeting provided a quorum is present at the opening of the meeting.

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8.9	Shareholder Representatives

A body corporate or association which is a shareholder of the Corporation may be represented at a meeting of shareholders by any individual authorized by a resolution of its directors or governing body and such individual may exercise on behalf of the body corporate or association which such individual represents all the powers it could exercise if it were an individual shareholder.

 

8.10	Time for Deposit of Proxies

The board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours, exclusive of non-business days, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted upon only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time is specified in such notice, it shall have been received by the secretary of the Corporation or by the chairperson of the meeting or any adjournment thereof prior to the time of voting.

 

8.11

Voting

Any question at a meeting of shareholders shall be decided by a show of hands unless a ballot is required or demanded. Upon a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands has been taken upon a question, unless a ballot is so required or demanded, a declaration by the chairperson of the meeting that the vote upon the question has been carried or carried by a particular majority or not carried and an entry to that effect in the minutes of the meeting shall be, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution.

 

8.12

Ballots

On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chairperson may require, or any shareholder or proxyholder entitled to vote at the meeting may demand, a ballot. A ballot so required or demanded shall be taken in such manner as the chairperson shall direct. A requirement or demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which each person is entitled to vote at the meeting upon the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders upon that question.

 

8.13	Electronic Voting

 

(a)

Notwithstanding section 8.11, any person participating in a meeting of shareholders by telephonic, electronic, or other communication facility in accordance with section 8.4 and entitled to vote at the meeting may vote by means of the telephonic, electronic or other communication facility that the Corporation has made available for that purpose.

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(b)

Any vote referred to in section 8.11 or 8.12 may be held entirely by means of a telephonic, electronic or other communication facility if the Corporation makes available such a communication facility, provided, in each case, that the facility:

 

(i)

enables the votes to be gathered in a manner that permits their subsequent verification; and

 

(ii)

permits the tallied votes to be presented to the Corporation without it being possible for the Corporation to identify how each shareholder or group of shareholders voted.

 

8.14	Casting Vote

In case of an equality of votes at any meeting of shareholders either upon a show of hands or upon a ballot, the chairperson of the meeting shall not be entitled to a second or casting vote.

ARTICLE 9

SHARES/SECURITIES

 

9.1

Issuance

Subject to the Act and the articles, the board may from time to time issue or grant options to purchase, or authorize the issue or grant of options to purchase, any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the board shall determine or authorize, provided that no share shall be issued until it is fully paid.

 

9.2	Securities Records

The Corporation shall maintain a register of shares and other securities in which it records the shares and other securities issued by it in registered form, showing with respect to each class or series of shares and other securities:

 

(a)

the names, alphabetically arranged, and the latest known address of each person who is or has been a holder;

 

(b)

the number of shares or other securities held by each holder; and

 

(c)

the date and particulars of the issue and transfer of each share or other security.

 

9.3	Transfer Agents and Registrars

The directors may from time to time appoint a registrar to maintain the securities register and a transfer agent to maintain the register of transfers and may also appoint one or more branch registrars to maintain branch securities registers and one or more branch transfer agents to

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maintain branch registers of transfers. One person may be appointed both registrar and transfer agent and the board may at any time terminate any such appointment.

 

9.4	Non-recognition of Trusts

Subject to the Act, the Corporation may treat the registered owner of a share as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payments in respect thereof and otherwise to exercise all the rights and powers of an owner of a share.

 

9.5	Security Certificates

Security certificates shall be signed by at least one of the following persons:

 

(a)

any director or officer of the Corporation;

 

(b)

a registrar, transfer agent or branch transfer agent of the Corporation or an individual on their behalf; or

 

(c)

a trustee who certifies it in accordance with a trust indenture.

Signatures may be printed or otherwise mechanically reproduced on the security certificates and every such signature shall for all purposes be deemed to be the signature of the person whose signature it reproduces and shall be binding upon the Corporation. If a security certificate contains a printed or mechanically reproduced signature of a person, the Corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer of the Corporation, and the security certificate is as valid as if the person were a director or an officer at the date of its issue.

ARTICLE 10

DIVIDENDS AND RIGHTS

 

10.1

Dividends

Subject to the Act, the board may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation.

 

10.2	Dividend Cheques

A dividend payable in cash shall be paid by cheque drawn on the Corporation’s bankers or one of them to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid ordinary mail to such registered holder at such holder’s address recorded in the Corporation’s securities register, unless in each case such holder otherwise directs. In the case of joint holders the cheque shall, unless such joint holders otherwise direct, be made payable to the order of all of such joint holders and mailed to them at their address recorded in the securities register of the Corporation. The mailing of such cheque, in such manner, unless the cheque is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold.

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- 14 -

10.3	Non-receipt of Cheques

In the event of non-receipt or loss of any dividend cheque by the person to whom it is sent, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt or loss and of title as the board may from time to time prescribe, whether generally or in any particular case.

 

10.4	Unclaimed Dividends

Any dividend unclaimed after a period of two years from the date on which the dividend has been declared to be payable shall be forfeited and shall revert to the Corporation.

ARTICLE 11

MISCELLANEOUS

 

11.1	Timing of Delivery of Notices

 

(a)

Any notice, document or other information delivered to a director, officer, shareholder, auditor or member of a committee of the board by prepaid mail addressed to, or delivered personally to the director, officer, shareholder, auditor or member of a committee of the board at the latest address as shown in the records of the Corporation shall be deemed to be received at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the addressee did not receive the notice, document or other information at that time or at all.

 

(b)

Subject to the Act, wherever a notice, document or other information is provided to a person in the form of an electronic document in accordance with section 2.5, such document shall be deemed to have been provided at the time it leaves an information system within the control of the originator or another person who provided it on behalf of the originator, and shall be deemed to have been received when it enters the information system designated by the addressee.

 

11.2	Waiver of Notice

Any shareholder (or such shareholder’s duly appointed proxyholder), director, officer, auditor or member of a committee of the board may at any time waive the provision of any notice or document, or waive or abridge the time for any notice or document, required to be provided to such person under any provision of the Act, the articles, the by-laws or otherwise and such waiver or abridgement shall cure any default in the provision or in the timing of such notice or document, as the case may be. Any such waiver or abridgement shall be in writing except a waiver of notice of a meeting of shareholders or of the board, which may be given in any manner. Attendance of a director at a meeting of directors or of a shareholder or any other person entitled to attend a meeting of shareholders is a waiver of notice of the meeting except where such director, shareholder or other person, as the case may be, attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

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- 15 -

11.3	Omissions and Errors

The accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the board or the non-receipt of any notice by any such person or any error in any notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise based thereon.

 

11.4	Invalidity

The invalidity or unenforceability of any provision of this by-law shall not affect the validity or enforceability of the remaining provisions of this by-law.

 

11.5	Effective Date

This by-law shall come into force upon approval by the directors.

 

11.6

Repeal

All other by-laws of the Corporation relating generally to the transaction of the business and affairs of the Corporation enacted and confirmed on January 12, 2001, shall be repealed upon the coming into effect of this by-law. However, such repeal shall not affect the previous operation of such by-law or affect the validity of any act done or right, privilege, obligation or liability acquired or incurred under or the validity of any contract or agreement made pursuant to such by-law prior to its repeal. All officers and persons acting under such repealed by-law shall continue to act as if appointed under the provisions of this by-law and all resolutions of the shareholders or board with continuing effect passed under such by-law shall continue in force until amended or repealed, except to the extent inconsistent with this by-law.

Dated June 10, 2004 and amended June 7, 2006, March 6, 2010 and December 16, 2016.

Exhibit 10.1

INDEMNITY AGREEMENT

(the “Agreement”)

THIS AGREEMENT is made as of [date] (the “Effective Date”).

BETWEEN:

MITEL NETWORKS CORPORATION, a corporation

governed by the laws of Canada, (the “Corporation”)

- and -

[Name], an individual principally resident in the City of [Place]

(the “Indemnified Party”)

RECITALS:

 

A.	The Indemnified Party is or has been a duly elected or appointed director or officer of the Corporation.

 

B.

The Corporation considers it desirable and in the best interests of the Corporation to enter into this Agreement to set out the circumstances and manner in which the Indemnified Party may be indemnified in respect of certain liabilities or expenses which the Indemnified Party may incur as a result of acting or continuing to act as a director or officer of the Corporation.

 

C.

The Indemnified Party has agreed to serve or to continue to serve as a director or officer of the Corporation subject to the Corporation providing the Indemnified Party with an indemnity against certain liabilities and, in order to induce the Indemnified Party to serve and to continue to so serve, the Corporation has agreed to provide the indemnity as set out in this Agreement.

 

D.	The by-laws of the Corporation contemplate that the Indemnified Party may be indemnified in certain circumstances.

THEREFORE, the Parties agree as follows:

ARTICLE 1

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

 

1.1	Definitions

Whenever used in this Agreement, the following words and terms shall have the meanings set out below:

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- 2 -

(a)

“Act” means the Canada Business Corporations Act, as the same exists on the date hereof or may hereafter be amended;

 

(b)

“Agreement” means this agreement, including all schedules, and all amendments or restatements as permitted, and references to “Article” or “Section” mean the specified Article or Section of this Agreement;

 

(c)

“Business Day” means any day, other than a Saturday or a Sunday, on which Royal Bank of Canada in Ottawa, Ontario is open for commercial banking business during normal business hours;

 

(d)

“Claim” includes any civil, criminal, administrative or investigative or other proceeding of any nature or kind in which the Indemnified Party is involved because of the Indemnified Party’s association with the Corporation;

 

(e)

“Losses” includes all costs, charges, expenses, losses, damages, fees (including any legal, professional or advisory fees or disbursements), liabilities, amounts paid to settle or dispose of any Claim or satisfy any judgment, fines, penalties or liabilities, without limitation, and whether incurred alone or jointly with others, including any amounts which the Indemnified Party may reasonably suffer, sustain, incur or be required to pay in respect of the investigation, defence, settlement or appeal of or preparation for any Claim or in connection with any action to establish a right to indemnification under this Agreement, and for greater certainty, includes all taxes, interest, penalties and related outlays of the Indemnified Party arising from any indemnification of the Indemnified Party by the Corporation pursuant to this Agreement; and

 

(f)

“Parties” means the Corporation and the Indemnified Party collectively and “Party” means any one of them.

 

1.2	Certain Rules of Interpretation

In this Agreement:

 

(a)

Governing Law – This Agreement 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. The Parties hereby irrevocably submit and attorn to the exclusive jurisdiction of the courts of the Province of Ontario with respect to all matters arising out of or relating to this Agreement and all matters, agreements or documents contemplated by this Agreement. The Parties hereby waive any objections they may have to the venue being in such courts including, without limitation, any claim that any such venue is in an inconvenient forum.

 

(b)

Headings – Headings of Articles and Sections are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

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- 3 -

(c)

Number – Unless the context otherwise requires, words importing the singular include the plural and vice versa.

 

(d)

Severability – If, in any jurisdiction, any provision of this Agreement or its application to any Party 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 Agreement and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to other Parties or circumstances.

 

(e)

Entire Agreement – This Agreement constitutes the entire agreement between the Parties and sets out all the covenants, promises, warranties, representations, conditions and agreements between the Parties in connection with the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, pre-contractual or otherwise. There are no covenants, promises, warranties, representations, conditions or other agreements, whether oral or written, pre-contractual or otherwise, express, implied or collateral, between the Parties in connection with the subject matter of this Agreement except as specifically set forth in this Agreement.

ARTICLE 2

OBLIGATIONS

 

2.1	Obligations of the Corporation

 

(a)

General Indemnity – Except in respect of an action by or on behalf of the Corporation to procure a judgment in its favour against the Indemnified Party, or except as otherwise provided herein, the Corporation agrees to indemnify and hold the Indemnified Party harmless to the fullest extent permitted by law, including but not limited to the indemnity under the Act, from and against any and all Losses which the Indemnified Party may reasonably suffer, sustain, incur or be required to pay in respect of any Claim, provided that the indemnity provided for in this Section 2.1(a) will only be available if:

 

(i)

the Indemnified Party was acting honestly and in good faith with a view to the best interests of the Corporation;

 

(ii)

in the case of a criminal or administrative action or proceeding that is enforced by monetary penalty, the Indemnified Party had reasonable grounds for believing that the Indemnified Party’s conduct was lawful; and

 

(iii)

in so acting, the Indemnified Party was not in breach of the Indemnified Party’s obligations hereunder.

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- 4 -

(b)

Indemnity as of Right – Notwithstanding anything in this Agreement, the Indemnified Party is entitled to an indemnity from the Corporation in respect of all costs, charges and expenses reasonably incurred by the Indemnified Party in connection with the defence of any Claim, if the Indemnified Party:

 

(i)

was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the Indemnified Party ought to have done; and

 

(ii)

fulfils the conditions set out in Sections 2.1(a)(i) and 2.1(a)(ii) above.

 

(c)

Derivative Claims – In respect of any action by or on behalf of the Corporation to procure a judgment in its favour against the Indemnified Party, in respect of which the Indemnified Party is made a party because of the Indemnified Party’s association with the Corporation, the Corporation shall make application, at its expense, for the approval of a court of competent jurisdiction to advance monies to the Indemnified Party for costs, charges and expenses reasonably incurred by the Indemnified Party in connection with such action and to indemnify and save harmless the Indemnified Party for such costs, charges and expenses of such action provided the Indemnified Party fulfils the conditions set out in Sections 2.1(a)(i) and 2.1(a)(ii) above and provided that such advance or indemnification is not prohibited under any applicable statute and provided the Indemnified Party shall repay such funds advanced if the Indemnified Party ultimately does not fulfil the conditions set out in Sections 2.1(a)(i) and 2.1(a)(ii) above.

 

(d)

Incidental Expenses – The Corporation shall pay or reimburse the Indemnified Party for the Indemnified Party’s reasonable and necessary travel, lodging or accommodation costs, charges or expenses paid or incurred by or on behalf of the Indemnified Party in carrying out the Indemnified Party’s duties as a director or officer of the Corporation.

 

(e)

Specific Indemnity for Statutory Obligations – Without limiting the generality of the preceding Sections 2.1(a) through 2.1(d) of this Agreement, the Corporation agrees, to the extent permitted by law, to indemnify and save the Indemnified Party harmless from and against any and all costs, charges, expenses, fees, damages or liabilities arising by operation of statute and incurred by or imposed upon the Indemnified Party in relation to the affairs of the Corporation in the Indemnified Party’s capacity as a director or officer thereof, including but not limited to all statutory obligations to creditors, employees, suppliers, contractors, subcontractors, and any government or any agency or division of any government, whether federal, provincial, state, regional or municipal, provided that the indemnity provided for in this Section 2.1(e) will only be available if the Indemnified Party fulfils the conditions in Sections 2.1(a)(i) and 2.1(a)(ii) above.

 

(f)

Partial Indemnification – If the Indemnified Party is determined to be entitled under any provisions of this Agreement to indemnification by the Corporation for some or a portion of the Losses incurred in respect of any Claim but not for the total amount thereof, the Corporation shall nevertheless indemnify the

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- 5 -

Indemnified Party for the portion thereof to which the Indemnified Party is determined by a court of competent jurisdiction to be so entitled.

 

(g)

Advance of Expenses – Subject to Section 2.1(c) of this Agreement, the Corporation may, at the request of the Indemnified Party, advance to the Indemnified Party sufficient funds, or arrange to pay on behalf of or reimburse the Indemnified Party for any costs, charges or expenses, reasonably incurred by the Indemnified Party in investigating, defending, appealing, preparing for, providing evidence in or instructing and receiving the advice of the Indemnified Party’s counsel or other professional advisors in regard to any Claim or other matter for which the Indemnified Party may be entitled to an indemnity or reimbursement hereunder, and such amounts shall be treated as a non-interest bearing advance or loan to the Indemnified Party, pending approval of the Corporation and a court of competent jurisdiction (if required), to the payment thereof as an indemnity and provided that the Indemnified Party fulfils the conditions set out in Sections 2.1(a)(i) and 2.1(a)(ii) above. In the event it is ultimately determined by a court of competent jurisdiction that the Indemnified Party did not fulfil the conditions set out in Sections 2.1(a)(i) and 2.1(a)(ii) above, or that the Indemnified Party was not entitled to be fully so indemnified, such loan or advance, or the appropriate portion thereof shall, upon written notice of such determination being given by the Corporation to the Indemnified Party detailing the basis for such determination, be repayable on demand and shall bear interest from the date of such notice at the prime rate prescribed from time to time by Royal Bank of Canada.

 

2.2	Notice of Proceedings

The Indemnified Party shall, as a condition precedent to the Indemnified Party’s right to be indemnified under this Agreement, give notice in writing to the Corporation as soon as practicable upon being served with any statement of claim, writ, notice of motion, indictment, subpoena, investigation order or other document commencing, threatening or continuing any Claim involving the Corporation or the Indemnified Party which may result in a claim for indemnification under this Agreement, and the Corporation agrees to give the Indemnified Party notice in writing as soon as practicable upon it being served with any statement of claim, writ, notice of motion, indictment, subpoena, investigation order or other document commencing or continuing any Claim involving the Indemnified Party. Such notice shall include a description of the Claim or threatened Claim, a summary of the facts giving rise to the Claim or threatened Claim and, if possible, an estimate of any potential liability arising under the Claim or threatened Claim. Failure by the Indemnified Party to so notify the Corporation of any Claim shall not relieve the Corporation from liability under this Agreement except to the extent that the failure materially prejudices the Corporation.

 

2.3	Subrogation

Promptly after receiving written notice from the Indemnified Party of any Claim or threatened Claim (other than a Claim by or on behalf of the Corporation to procure a judgment in its favour against the Indemnified Party), the Corporation may, and upon the written request of the Indemnified Party shall, by notice in writing to the Indemnified Party, in a timely manner assume

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- 6 -

conduct of the defence thereof and retain counsel on behalf of the Indemnified Party who is reasonably satisfactory to the Indemnified Party, to represent the Indemnified Party in respect of the Claim. On delivery of such notice by the Corporation, the Corporation shall not be liable to the Indemnified Party under this Agreement for any fees and disbursements of counsel the Indemnified Party may subsequently incur with respect to the same matter. In the event the Corporation assumes conduct of the defence on behalf of the Indemnified Party, the Indemnified Party hereby consents to the conduct thereof and of any action taken by the Corporation, in good faith, in connection therewith, and the Indemnified Party shall fully cooperate in such defence including, without limitation, the provision of documents, attending examinations for discovery, making affidavits, meeting with counsel, testifying and divulging to the Corporation all information reasonably required to defend or prosecute the Claim.

 

2.4	Settlement of Claim

No admission of liability in respect of a Claim shall be made by the Indemnified Party without the prior written consent of the Corporation and the Corporation shall not be liable for any settlement of any Claim made without its prior written consent.

ARTICLE 3

MISCELLANEOUS

 

3.1	Continuance

The Corporation shall give to the Indemnified Party 15 days’ notice of any application by the Corporation for a certificate of continuance in any jurisdiction, indicating the jurisdiction in which it is proposed that the Corporation will be continued and the proposed date of continuance. Upon receipt of such notice, the Indemnified Party may require the Corporation to agree to such amendments to this Agreement as the Indemnified Party, acting reasonably, considers necessary or desirable in order to provide the Indemnified Party with a comprehensive indemnity under the laws of the proposed jurisdiction of continuance.

 

3.2	Corporation and Indemnified Party to Cooperate

The Corporation and the Indemnified Party shall, from time to time, provide such information and cooperate with the other, as the other may reasonably request, in respect of all matters under this Agreement.

 

3.3	Effective Time

This Agreement shall be deemed to have effect as and from the first date that the Indemnified Party became a director or officer of the Corporation.

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- 7 -

3.4	Insolvency

The liability of the Corporation under this Agreement shall not be affected, discharged, impaired, mitigated or released by reason of the discharge or release of the Indemnified Party in any bankruptcy, insolvency, receivership or other similar proceeding of creditors.

 

3.5	Multiple Proceedings

No action or proceeding brought or instituted under this Agreement and no recovery pursuant thereto shall be a bar or defence to any further action or proceeding which may be brought under this Agreement.

ARTICLE 4

GENERAL

 

4.1

Term

This Agreement shall survive until six years after the Indemnified Party has ceased to act as a director or officer of the Corporation.

 

4.2	Assignment

Neither Party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other Party. This Agreement shall enure to the benefit of and be binding upon the Parties and the heirs, executors and administrators and other legal representatives of the Indemnified Party and the successors and permitted assigns (including any successor by reason of amalgamation) of the Corporation.

 

4.3	Amendments and Waivers

No supplement, modification, amendment or waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, shall be binding unless executed in writing by the Party to be bound thereby. For greater certainty, the rights of the Indemnified Party under this Agreement shall not be prejudiced or impaired by permitting or consenting to any assignment in bankruptcy, receivership, insolvency or any other creditor’s proceedings of or against the Corporation or by the winding-up or dissolution of the Corporation.

 

4.4

Notices

Any notice, consent or approval required or permitted to be given in connection with this Agreement (in this Section referred to as a “Notice”) shall be in writing and shall be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery), or if transmitted by facsimile or e-mail:

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- 8 -

(a)

in the case of a Notice to the Indemnified Party at:

Facsimile:

E-mail:

 

(b)

in the case of a Notice to the Corporation at:

Mitel Networks Corporation

350 Legget Drive

Ottawa, Ontario Canada

K2K 2W7

Attention:         Steven W. Spooner

                          Chief Financial Officer

Facsimile:         (613) 592-7838

E-mail:              [email protected]

Any Notice delivered or transmitted to a Party as provided above shall be deemed to have been given and received on the day it is delivered or transmitted, provided that it is delivered or transmitted on a Business Day prior to 5:00 p.m. local time in the place of delivery or receipt. However, if the Notice is delivered or transmitted after 5:00 p.m. local time or if such day is not a Business Day then the Notice shall be deemed to have been given and received on the next Business Day.

Any Party may, from time to time, change its address by giving Notice to the other Party in accordance with the provisions of this Section.

 

4.5	Further Assurances

The Corporation and the Indemnified Party shall, with reasonable diligence, do all such further acts, deeds or things and execute and deliver all such further documents as may be necessary or advisable for the purpose of assuring and conferring on the Indemnified Party the rights hereby created or intended, and of giving effect to and carrying out the intention or facilitating the performance of the terms of this Agreement or to evidence any loan or advance made pursuant to Section 2.1(e) hereof.

 

4.6	Independent Legal Advice

The Indemnified Party acknowledges that the Indemnified Party has been advised to obtain independent legal advice with respect to entering into this Agreement, that the Indemnified Party has obtained such independent legal advice or has expressly determined not to seek such advice, and that the Indemnified Party is entering into this Agreement with full knowledge of the contents hereof, of the Indemnified Party’s own free will and with full capacity and authority to do so.

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- 9 -

4.7	Execution and Delivery

This Agreement may be executed by the Parties in counterparts and may be executed and delivered by facsimile and all such counterparts and facsimiles together shall constitute one and the same agreement.

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- 10 -

IN WITNESS OF WHICH the Parties have duly executed this Agreement.

 

 

Name: Witness to signature of [Name]				[Name]

Exhibit 14.1

 

 

Mitel Code of Business Conduct

Honesty ● Integrity ● Transparency ● Trust

 

---

 

To all Mitel employees, officers and directors:

Ever since the Mitel name was created, those who worked under its banner have strived to maintain a reputation for high standards in technical excellence and business integrity. This is one of our most valuable assets and we expect all employees, officers and directors to safeguard that reputation in the performance of their duties.

If we are to continue to succeed in today’s markets globally, we must continue to provide our customers with high quality products and innovative solutions. We must also demonstrate our strong sense of responsibility and commitment to our customers, employees, shareholders, and the global community at large. As such we must work in an atmosphere that exudes and promotes honesty, integrity, transparency and trust.

Our Board of Directors has adopted this Code of Business Conduct as a clear statement of the Mitel way of conducting business. It sets out principles and standards grounded in moral, ethical and legal behavior that are intended to guide all Mitel activities.

All Mitel employees, officers and directors must at all times conduct business in an ethical and honest manner, consistent with the principles of this Code. Take the time to review this Code and understand how its principles apply to you in your interactions. If you have any questions regarding this Code, please contact Mitel’s Global Business Ethics and Compliance Office or the Legal Department.

Together we will build on our past, and move into the future with the full respect of our peers and partners, our customers and competitors.

 

 

Page 2 of 27

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Applicability of the Code

This Code applies to all Mitel employees or persons acting on Mitel’s behalf, regardless of their position and location. This includes but is not limited to:

 

•

Mitel’s Board of Directors

 

•

Mitel’s Executives

 

•

Mitel’s Employees, both temporary and permanent

 

•

Mitel’s Contractors

 

•

Mitel’s Agents

Mitel recognizes that in a global business, laws will vary by country and locality. Mitel requires that all applicable personnel operate within the laws and regulations of their country and locality; however, in the event this Code requires a more stringent standard, this Code’s standard shall apply to the personnel’s conduct. Failure to adhere to this Code can lead to disciplinary action, up to and including dismissal.

Management Responsibility

Mitel’s Board of Directors and senior management are responsible for operating Mitel’s business in compliance with all applicable laws. They also are responsible for creating and fostering a culture of ethical business practices, encouraging open communication, and for instilling an awareness of and commitment to this Code.

The Mitel Global Business Ethics and Compliance Office has overall responsibility for administering this Code. The current Director of Global Business Ethics and Compliance is Greg Hiscock. The Global Business Ethics and Compliance Office is responsible for:

 

1.

Ensuring distribution of the Code to all employees, directors, officers and representatives.

 

2.

Monitoring Mitel’s ethics and business practices company-wide.

 

3.

Resolving issues raised to the Global Business Ethics and Compliance Office.

 

4.

Overseeing Global Business Ethics and Compliance investigations.

 

5.

Discussing ethics and business conduct issues with employees and managers throughout Mitel and the Board of Directors including the Board’s Audit Committee.

Questions regarding the Code, its interpretation or its application should be addressed to the Global Business Ethics and Compliance Office or the Legal Department.

 

 

Page 3 of 27

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Introduction

Today’s global marketplace and rapid growth present Mitel employees with business challenges…

Most of these challenges can be met by using common sense and your own understanding of fairness and honesty. Mitel employs high caliber people with high standards of integrity, fairness and professionalism. Sometimes, situations arise that are new, unusual or complex. While Mitel has attempted to make this Code comprehensive, it is not intended to encompass all situations that an employee may encounter. Instead, this document sets out principles that confirm and supplement individual honesty and integrity, and provide employees with the support and resources necessary to fulfill their obligations to act honestly, with integrity and in compliance with the laws, rules and regulations that apply to business.

As part of the Mitel workforce, you are required to:

 

•

Be familiar with this Code and follow it at all times;

 

•

Comply with all applicable laws, rules, and regulations when conducting Mitel business;

 

•

Abide by all established Mitel policies and procedures;

 

•

Avoid behaving in any manner which could lead to inappropriate business conduct;

 

•

Promptly bring to Mitel’s attention either through the Company’s hotline, management, Mitel’s Global Business Ethics and Compliance Office or the Legal Department any known or perceived unacceptable business conduct or illegal behavior;

 

•

Seek appropriate guidance when business issues arise; and

 

•

Always conduct Mitel business with honesty, integrity, transparency and trust.

When faced with an ethical decision, it may be necessary to consider the following:

 

•

Does my conduct comply with Mitel’s policies? Are there other Mitel policies that should be consulted?

 

•

Does this Code address my issue? Does the Employee Handbook address my issue?

 

•

Who should be consulted? My supervisor? Human Resources? Mitel’s Global Business Ethics and Compliance Office? The Legal Department?

 

•

Would my conduct be legal?

 

•

Would my conduct be ethical?

 

•

What are the possible results of my choices? Who might be hurt or helped?

 

•

What is the extent of the harm? What is the nature of the help?

 

•

Ask yourself: Am I comfortable with my decision? Does my conduct appear appropriate? If my decision were made public, how would I feel? If the person I respect most were to hear of my conduct, how would I feel?

 

 

Page 4 of 27

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Table of Contents

 

Values			6
Conduct Relating to Mitel and the Company			7
Conflicts of Interest			7
Outside Employment			7
Outside Transactions			8
Financial Interests in Other Companies			8
Outside Directorships			8
Use of Mitel Property			8
Corporate Assets			10
Software			10
Corporate Opportunities			10
Health and Safety			11
Privacy Information			11
Records			11
Inside Information			11
Fair Treatment and Mutual Respect			12
Confidential Information			12
Intellectual Property			13
Inventions and Patents			14
Copyright			14
Trade Secrets			14
Trademarks			14
Mitel Established Policies and Procedures			15
Political Activity			15
Shareholders			15
Disclosures and Financial Reporting			15
Conduct Relating to Customers, Competitors and Suppliers			17
Customers			17
Antitrust/Competition			17
Fraud and Abuse			18
Gifts and Entertainment			18
Conduct Relating to the Community at Large			19
Taxes			19
Lobbying			19
Corruption			20
Government Sales			20
Environment			21
Government Investigations			21
Enforcement of the Code			22
Duty to Disclose/Report			22
Reporting Options			23
Non-retaliation			24
Investigative Action/Discipline			25
Right to Investigate, Audit and Enforce			25
Waivers			25
Resources			26

 

 

Page 5 of 27

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Values

By creating and maintaining an environment that supports our core values of honesty, integrity, trust, respect, teamwork, positive social contribution and personal achievement, each of us has the opportunity to achieve excellence. Although everyone at Mitel must contribute to the creation and maintenance of a positive work environment, our executives and everyone in management have a special responsibility to set and communicate standards that allow all of us to excel.

Mitel’s employees are the key to Mitel’s success. Mitel is proud of its very talented workforce, and recognizes that its employees are its most valuable asset. Mitel is committed to attracting, retaining and motivating the highest caliber people who have the utmost integrity and outstanding character. It is Mitel’s goal to develop and maintain practices and policies that ensure this commitment is met.

Mitel seeks every opportunity to communicate timely information to all of its employees about company policies, plans, and the status of issues that directly affect employees. Mitel is committed to honesty and fairness, and believes that all employees should be treated with respect. Employees are trusted to do their jobs effectively and will be recognized for their contributions.

All members of Mitel’s workforce share the responsibility for mutual understanding and cooperation and for creating and maintaining a work environment. All incidents in violation of this Code should be reported as soon as possible. All complaints made in good faith will be investigated promptly. To the extent possible and consistent with Mitel’s obligations under law and our policies, we will maintain the confidentiality of anyone reporting a complaint.

Mitel’s business is governed by many laws: provincial, state, federal, and international. Compliance with the form and spirit of all applicable law is fundamental to ethical business conduct. This is merely a minimum standard. Ethical business conduct goes well beyond compliance with applicable law and requires Mitel employees, officers, directors, contractors and agents to be always concerned about the impact of their actions on all interested parties in the communities in which we live and work: other employees, customers, suppliers, shareholders, competitors, and governments.

 

 

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Conduct Relating to Mitel and the Company

Conflicts of Interest

Generally, Mitel’s workforce may conduct their personal and financial affairs as they wish. However, there are certain situations and activities that may pose a conflict between your interests and the best interests of Mitel. You should act with honesty and integrity, and avoid any relationship, influence or activity that would cause or even appear to cause a conflict of interest.

Most of the time, we easily recognize a conflict of interest. However, sometimes it is less clear that a particular activity or situation may cause or appear to cause a conflict of interest. Mitel expects that you will not engage in activities where your loyalties to Mitel may be compromised.

You are advised not to engage in any activity where your role or interest may be in conflict with Mitel’s interest. Although such conflicts are not automatically prohibited, written approval from the Legal Department is required to participate in any such activity. Your obligation to provide written disclosure of conflicts of interest, or the appearance of conflicts of interest, continues throughout the time that you work at Mitel.

If you are uncertain whether your activities may constitute a conflict of interest, or even the appearance of a conflict of interest, consult with your supervisor, the Human Resources Department, the Global Business Ethics and Compliance Office or the Legal Department before taking action.

Examples of potential conflicts of interest include, but are not limited to, the following:

Outside Employment

In consideration of your employment with Mitel, you are expected to devote your full business attention to the business interests of Mitel. You may not be employed by, or contract or consult with a customer, supplier or competitor of Mitel or its related entities. You may not engage in outside business activities that compete or appear to compete with the interests of Mitel or adversely affect your performance at Mitel. Members of Mitel’s workforce who engage in commercial activity or accept employment in addition to working at Mitel must report the details of the activity, in writing, to your supervisor with a copy to the Human Resources Department.

 

 

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Outside Transactions

You may not engage in transactions on behalf of Mitel with any person or entity in which you or a member of your family has a substantial beneficial interest or in which you serve as a trustee or in a similar fiduciary capacity. You may not engage in significant financial transactions with other members of Mitel’s workforce with whom you have a reporting relationship, or with whom you have a relationship that will pose, or appear to pose, difficulties for supervision, security, safety or morale.

Financial Interests in Other Companies

You may not hold a financial interest in any customer, supplier or competitor of Mitel or its related entities, unless such company is a publicly owned corporation. If the company is a publicly owned corporation, you may hold up to $25,000 worth of stock or two percent of the company’s outstanding shares, whichever is greater. You must obtain approval, in writing, of Mitel’s Chief Executive Officer or Board of Directors for any variance from this rule.

Outside Directorships

It is a conflict of interest to serve as a director of any company that competes with Mitel. You may not serve as an officer or on the board of directors of a competitor company without obtaining prior written approval of Mitel’s Chief Executive Officer or Board of Directors.

Charitable Activities

You may promote charitable causes to customers, suppliers and colleagues, provided that you make it clear that you are acting for a charitable cause or organization and not Mitel. You should exercise caution if generating donations while at work to ensure that customers or suppliers do not feel that they are under any obligation to support the charitable cause or organization to maintain their relationship with Mitel and that fellow colleagues do not feel pressured to make contributions or donations.

Use of Mitel Property

Mitel computers, systems, phones and office equipment are provided to Mitel employees primarily for business purposes; however, employees are permitted to make reasonable use of Mitel equipment for personal reasons. Employees are required to use their good judgment in this regard. Otherwise, the use of company facilities, including computers, systems and telephones, for purposes that are not Mitel related is forbidden.

 

 

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Information transmitted through Mitel resources implies affiliation with Mitel and therefore should reflect positively on Mitel. Communications that do not meet the law or this Code are prohibited.

Communications of any nature on Mitel systems should not be considered to be private. All information stored or transmitted on Mitel systems (including voice and electronic messages) is the property of Mitel, and Mitel reserves the right to inspect or audit any such information at any time, for any purpose and without notice.

 

 

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Corporate Assets

It is the responsibility of all employees, officers and directors to use Mitel assets responsibly, and to guard Mitel assets with utmost care. Mitel assets include employee work time, property, equipment and facilities which belong to Mitel. It is prohibited for any Mitel employee to falsify any document including time sheets or expense claims, to use a company credit card for personal gain, or to allocate any Mitel asset without proper authorization. The use of Mitel assets for purposes unrelated to Mitel business is prohibited without proper authorization.

Every Mitel employee is personally responsible for all Mitel funds over which he or she exercises control. With the exception of senior management and Board approved arrangements such as certain banking/investment management functions, Mitel agents and contractors should not be allowed to exercise control over Mitel funds. Mitel funds must be used only for Mitel business purposes. Every Mitel employee, agent and contractor must take reasonable steps to ensure that Mitel receives good value for Mitel funds spent, and must maintain accurate and timely records of each and every expenditure. Expense reports must be accurate and submitted in a timely manner consistent with Mitel or departmental requirements. Mitel employees, agents and contractors must not use Mitel funds for any personal purpose.

Software

All software used to conduct Mitel business must be appropriately licensed. Never make or use illegal or unauthorized copies of any software, whether in the office, at home, or on the road, since doing so may constitute copyright infringement and may expose Mitel and the individual to potential civil and criminal liability.

The use of illegal or unauthorized copies of software may subject the employee to disciplinary action, up to and including termination. Mitel’s IT Department has the right, without notice, to inspect Mitel computers periodically to verify that only approved and licensed software has been installed. Any non-licensed/unsanctioned software may be removed without notice.

Corporate Opportunities

In general, employees, officers and directors are prohibited from using Mitel property or information for personal gain. As an example, employees, officers and directors have a duty to advance the business interests of Mitel when the opportunity to do so arises, and are prohibited from taking (or directing to a third party) a Mitel business opportunity.

 

 

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Health and Safety

Mitel is committed to providing a safe working environment for all employees, and to developing programs that promote and safeguard employee well-being. Employees also must work safely and take all reasonable care to comply with health and safety laws, and to protect their health and safety and that of co-workers. Employees must report to their manager, the Health Unit, or Human Resources any accident or injury sustained while at work.

Further information regarding health and safety can be found in the Mitel Employee Handbook and applicable Mitel policy.

Privacy of Information

Mitel is committed to protecting the personal information of its employees, customers and any other individuals. This information must be held in strictest confidence, safeguarded appropriately, and dealt with in a manner that conforms to all applicable legislation and applicable Mitel policy.

Records

All employees, officers and directors must ensure that all Mitel records, reports, plans and any other data are factual, accurate and complete. All transactions between Mitel and any third party must be recorded in accordance with accepted business practices and principles. Any misrepresentation of facts or falsification of records or documents is prohibited and could lead to disciplinary action, up to and including termination.

All company records will be retained, maintained and destroyed in accordance with all applicable laws and any Mitel document retention policies. See also applicable Mitel policy.

Inside Information

Passing “Inside Information” to any person who has no right or need to have such information can be illegal and seriously detrimental to Mitel and the individuals involved.

“Inside Information” includes confidential information concerning the affairs of Mitel, a client, a potential client, a supplier, or any other company whose securities are publicly traded on a stock exchange. “Inside Information” is information that an investor could consider to be important in deciding whether or not to buy or sell that company’s stock or securities, but that has not been generally disclosed to the public. Examples might include a potential merger or acquisition, a technological discovery, or information about the company’s financial health.

 

 

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Fair Treatment and Mutual Respect

Mitel expects its employees to create a workplace that is based on fair treatment and mutual respect. Mitel is an equal employment opportunity employer.

Mitel, by and through its management, makes all employment decisions based on merit and without discrimination on any prohibited ground including but not limited to gender, age, race, religion, place of origin, sexual orientation, marital status, family status, or physical or mental handicap. See also any applicable Mitel policy.

Mitel does not tolerate harassment perpetrated by or against an employee, contractor or agent of Mitel including but not limited to verbal harassment, visual harassment, physical harassment or sexual harassment.

If you believe you have experienced or observed harassment or discrimination, you should immediately contact your supervisor, Human Resources, the Global Business Ethics and Compliance Office or the Legal Department. Any manager who receives information about an alleged harassment or discrimination is required to immediately report it to Human Resources. All claims will be investigated through the appropriate channels, so that management can take appropriate corrective action if warranted.

Confidential Information

Each individual working for Mitel must protect and not disclose information about Mitel that is not generally available to the public or has not been published or widely disseminated (“Confidential Information”).

You may not disclose Mitel’s Confidential Information to anyone or use Mitel Confidential Information for your own benefit or for the benefit of anyone other than Mitel without the prior written consent of an authorized Mitel executive officer.

As a member of our workforce, you must follow Mitel guidelines to protect our Confidential Information, including the following:

 

1.

Ensure that a nondisclosure agreement, approved by the Legal Department, has been signed before providing any Confidential Information to any third party. You must not sign a third party’s nondisclosure agreement or accept changes to Mitel’s standard nondisclosure agreements without review and written approval by the Legal Department.

 

2.

Limit access to Confidential Information, e.g., by limiting reproduction and distribution of confidential documents to only those persons who have a genuine need to know. You are also responsible for properly labeling any and all documentation shared with or correspondence sent to the Legal Department or outside counsel as “Attorney-Client Privileged.”

 

3.

Keep all confidential documents in locked or secure areas and label such documents as “Confidential” to indicate the degree of care that must be applied when handling and distributing to others.

 

4.

You should not disclose Confidential Information to:

 

 

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a)

any third party who has not signed or is not covered by a non-disclosure agreement or

 

b)

any person inside Mitel who does not have a need to know such information without authorization. Even in social situations, you should remember that you represent Mitel.

There may be situations where Mitel is legally obligated to disclose certain information. If you are contacted in connection with such a legal process, you must notify the Legal Department of the request prior to providing the requested information.

Similarly, you must protect and not disclose Confidential Information about other companies that you obtain in the course of your employment, e.g., in the course of joint development, joint venture or acquisition or merger activities. In addition, you should not use or disclose confidential information relating to our competitors’, customers’ or suppliers’ businesses.

Confidential Information may be technical as well as financial and business information. Examples of Confidential Information include: actual or projected sales, earnings, backlog, gross margins, significant capital expenditures or significant borrowings; any sales or bookings by product lines, business unit, or by country or other geographic area; internal forecasts for shipments or bookings; product performance or product development schedules; drawings, process parameters, technology roadmaps; any action or event which had or is likely to have a material effect on Mitel’s anticipated annual sales or earnings, or which may result in a special or extraordinary charge against earnings or capital; major management changes, a reorganization or reduction in workforce; a proposed merger, acquisition or disposition of assets; staff information, including reporting structures and salaries; technology or product roadmaps; specific customer or supplier confidential information, including sales, purchases or investment plans; and any other information that has not been published or widely disseminated by Mitel in a press release, annual report, securities filing, or other public forum. Mitel’s policy on handling Confidential Information applies to you both while you work at Mitel and after your employment at Mitel ends.

Intellectual Property

Our intellectual property (Confidential Information, trade secrets, patents, trademarks and copyrights) is the lifeblood of Mitel. Protecting this resource is of paramount importance for the continued vitality of the organization. Each of us is responsible for protecting Mitel’s intellectual property. You are required to ensure that a nondisclosure agreement, approved by the Legal Department, has been signed before providing any intellectual property, or any information pertaining to Mitel’s intellectual property, to any person or organization outside of Mitel.

 

 

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Types of Intellectual Property include:

Inventions and Patents

All inventions, whether patentable or not, that you conceive, work on or reduce to practice while employed at Mitel are the property of Mitel. An exception to this rule is for inventions that are not related in any way to Mitel’s products, research or business, are developed entirely on your own time, and are developed without the use of any of Mitel’s assets, equipment, facilities, or resources. After conceiving an invention, you should consult applicable Mitel policy for the actions you should take as to the invention.

Copyright

Copyright laws protect many types of materials that we produce. For example, copyright laws often protect books, pamphlets, seminar materials, journals and computer software. All such materials that you create or help to create are owned by Mitel and subject to copyright protections. If you become aware of any unauthorized use of any copyrighted Mitel materials you must report it to an attorney in the Legal Department.

Trade Secrets

A trade secret is information, including a formula, pattern, compilation, program, device, method, technique or process that has economic value because it is not known to the public. In order to qualify as a trade secret, information must, in fact, be kept secret. If a trade secret is disclosed, Mitel may lose the ability to prevent others from using it. Members of our workforce who develop or handle trade secrets must follow Mitel guidelines to protect this information, including the following:

 

1.

Limit access to documents containing trade secrets, e.g., by limiting reproduction and distribution of such documents to only those persons within Mitel who have a genuine need to know.

 

2.

Number copies of documents containing trade secrets and maintain a list of those persons who have received copies.

 

3.

Place confidential legends on all documents containing trade secrets.

 

4.

Ensure that a nondisclosure agreement, approved by the Legal Department, has been signed before providing trade secrets to a third party.

 

5.

Store all confidential documents containing trade secrets in locked areas.

 

6.

Shred or securely store excess or obsolete documents containing trade secrets.

Trademarks

Our Mitel logo is the most recognized symbol of Mitel and is designed to reflect consistently Mitel’s values and attributes. Professional use of the Mitel logo requires strict adherence to Mitel standards and trademark law. You must consult with Marketing and obtain written approval before using the logo on printed documents, corporate gifts and other items.

 

 

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Mitel Established Policies and Procedures

All Mitel employees are required to abide by all established Mitel policies and procedures.

Political Activity

All Mitel employees are free to participate in the political process as they so choose, so long as their activities are consistent with their obligations to Mitel as described in this Code.

No contributions from Mitel assets shall be made, either directly or indirectly, to support or oppose any political party or candidate.

Shareholders

Shareholders are the true owners of the business. They are entitled to expect fair return on their investment. Mitel is committed to building sustained shareholder wealth by conducting our business in what we believe to be their best interests and within the guidelines of this Code.

Mitel will comply with all statutory, exchange and regulatory laws, rules and requirements to provide information to its shareholders.

Disclosures and Financial Reporting

Mitel employees, officers and directors will maintain complete, accurate and reliable records in accordance with Generally Accepted Accounting Principles (“GAAP”). Mitel will design and maintain an effective system of internal controls respecting disclosure and financial reporting.

Mitel employees, officers and directors, including the CEO and CFO and any other officer with senior financial responsibilities (“the Senior Financial Officers”), must be familiar with and comply with Mitel’s disclosure controls and procedures and financial controls, to the extent this is relevant to the individual’s responsibilities to Mitel.

Mitel employees, officers and directors, including the Senior Financial Officers, will take reasonable steps to ensure that all reports and public communications are accurate, complete and timely, especially when dealing with financial matters.

Mitel employees, officers and directors will provide timely and accurate financial information to the financial community, the securities regulators, any other regulatory or governmental body as required and the public.

Mitel will make every reasonable effort to respond to all reasonable requests for financial information from its shareholders, and any others in the financial community. Only authorized employees will provide financial information or opinions outside the Company.

Mitel employees, officers and directors are required to promptly bring the following to the attention of the Global Business Ethics and Compliance Officer, the Legal Department,

 

 

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Mitel’s Internal Audit or the Global Ethics and Compliance Hotline: 1) any information they have respecting deficiencies in the internal controls that could affect Mitel’s disclosure or financial reporting obligations; 2) any fraud, manipulation or coercion, directly or indirectly involving any employee, including any director or member of the management team, that in any way involves Mitel’s obligation to disclose, its financial reporting or the system of internal controls, including statements or omissions of material facts made to external auditors or accountants that could, if successful, result in rendering Mitel’s financial statements materially misleading; and 3) any other fraud, manipulation or coercion involving any employee, including any director or member of the management team, relevant to Mitel’s business.

 

 

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Conduct Relating to Customers, Competitors and Suppliers

Customers

Mitel’s business success is driven by our ability to attract and retain new and existing customers. The Mitel “Quality Policy” is fundamental to this success:

“We will provide communications and collaboration products and services that meet the needs of our customers and exceed their expectations.”

This is achieved through global customer focus, communication, measurement, legal requirements and continuous improvement as expressed in our organization, business environment, needs, objectives, processes, plans and product roadmaps.

It is every Mitel employee’s responsibility to ensure that all interactions with our customers are honored, professional, in compliance with applicable laws and regulations, and adhere to best business practices.

Antitrust/Competition

Mitel is committed to competing effectively, but lawfully, in our business markets. Mitel, its employees, contractors and agents must comply with the antitrust and unfair competition laws of the countries in which our Company engages in business. These laws vary by country and can be complex. Every Mitel employee is responsible for knowing the laws that apply to his or her business activities.

In general, antitrust laws prohibit or regulate mergers and acquisitions, attempts to monopolize or otherwise restrain trade, selling product below cost, price discrimination, price fixing or other agreements with competitors that would divide or allocate customers or otherwise harm customers, certain kinds of “tying” arrangements that require a customer who wishes to purchase a given product to buy other products or services, artificially maintaining prices, and certain other restrictive agreements or arrangements. Mitel employees may not exchange non-public sales information with competitors or exchange sales information with competitors for the purpose of affecting sales prices or levels.

Mitel requires that all competitive activities be lawful and ethical. Employees may not use improper or illegal means of gaining competitive information that is confidential or proprietary information owned by others. Employees may not use or disclose confidential or proprietary information of others under restrictions against use or disclosure whether those restrictions arise from past employment or any other sources.

Violations of antitrust laws may result in severe penalties for Mitel and the individuals involved, including substantial fines and prison sentences. They will also be dealt with strictly by Mitel with respect to the involved employees and appropriate discipline, up to and including termination, will be administered. If employees have doubts about a

 

 

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proposed business arrangement or exchange of information, they should consult with the Global Business Ethics and Compliance Office or the Legal Department.

Fraud and Abuse

Mitel is committed to ensuring that all of its communications with customers, suppliers, dealers, the public, and other third parties are truthful. All employees must ensure that in all of their activities on behalf of Mitel, they are not misrepresenting or concealing important facts, and that they are not enabling someone else to do so.

Examples of prohibited conduct include: 1) Misrepresenting the price to be charged or the equipment to be provided to a customer, even if done at the customer’s request; 2) Altering or destroying documents in order to conceal information; and 3) Forging documents or signatures.

More generally, Mitel requires its employees to act ethically, honestly, and lawfully in their dealings with any third party and the Company itself. Examples of prohibited conduct in this respect include: 1) theft, embezzlement, or other misappropriation of Mitel, customer, partner or supplier funds and/or assets; 2) conversion to personal use of cash, securities, supplies or any other Mitel asset; 3) impropriety with respect to reporting financial transactions; 4) destruction or concealment of records or assets; and 5) certification of incorrect financial information to Mitel.

Violations of the laws prohibiting fraud may result in severe penalties for Mitel and/or the individuals involved, including substantial fines and prison sentences. They will also be dealt with strictly by Mitel with respect to the involved employees and appropriate discipline, up to and including termination, will be administered. If employees have doubts about a representation they are about to make, or that a customer or other third party has asked them to make, they should consult with the Global Business Ethics and Compliance Office or the Legal Department.

Gifts and Entertainment

Employees, officers and directors shall not give, directly or indirectly, expensive gifts or excessive entertainment or benefits to other persons on behalf of Mitel. Employees, officers and directors shall not accept or give anything that might compromise, or might be seen to compromise their judgment or inappropriately influence others. The guiding principle is good judgment taking into consideration whether the matter, if disclosed, is reasonably likely to cause embarrassment to either the individual or Mitel.

Gifts and entertainment (even of nominal value) to government employees and officials are strictly prohibited without prior written approval from the Global Business Ethics and Compliance Office or the Legal Department.

 

 

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Conduct Relating to the Community at Large

Mitel recognizes and accepts fully its obligations to the countries and communities worldwide where it conducts business. Mitel’s commitment to acting ethically and responsibly in the world business community includes: willingly complying with all applicable laws and regulations; seeking to protect the environment and promote environmental concerns; assisting and participating in worthy educational and social programs in the communities where Mitel conducts business.

Mitel employees, officers and directors shall conduct any dealings with public officials in any country with integrity, and in a manner that will not tarnish the reputation of the official, Mitel or the Mitel employee, officer or director. Even the appearance of impropriety in dealing with public officials is not acceptable.

Discussion relating to various compliance topics follows. This is not a comprehensive discussion of all compliance areas but highlights the most commonly encountered compliance topics.

Taxes

Mitel strictly complies with and pays all known applicable taxes, required by provincial, federal, state, local and foreign laws. Many of these laws require the reporting of financial information, payment of taxes due, filing of tax returns, and withholding or collecting of necessary taxes on behalf of our workforce. Contact the Tax Department if you have any questions regarding Mitel’s responsibilities under tax laws, rules and regulations.

If you have reason to suspect that there has been a violation of a tax law, rule and/or regulation, you are required to report the suspected violation to the Global Business Ethics and Compliance Office, the Legal Department or the Internal Audit Department.

Lobbying

Mitel is under obligations in various countries to report lobbying activity done by Mitel’s workforce, agents or contractors.

Members of Mitel’s workforce, agents or contractors whose work requires lobbying communication with any member or employee of a legislative body or with any government official or employee must have prior written approval of such communications from the Legal Department. Activity covered includes but is not limited to meetings with legislators or members of their staffs, elected officials or with senior executive branch officials. Preparation, research, and other background activities that are done in support of lobbying communications are also covered even if the communication ultimately is not made.

 

 

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Corruption

It is prohibited for a Mitel employee, contractor or agent to pay a bribe to any public official. It is further prohibited for an employee, contractor or agent to offer or accept kickbacks or other inducements from contractors or subcontractors that are made for the purpose of improperly inducing or awarding a contract or subcontract.

Mitel employees, contractors and agents working in countries other than Canada or the United States should be aware that bribes to foreign government officials may violate various national and international laws. In addition, some of these laws require Mitel to maintain proper accounting controls and keep detailed records of all financial dealings with foreign governments, including payments of any kind.

Mitel prohibits the use of “facilitating payments” made to ensure that public officials perform tasks they are supposed to perform as part of their normal job function. For further information on this topic, please contact the Global Business Ethics and Compliance Office or the Legal Department.

Government Sales

Mitel’s contracts with government agencies, including schools, and for projects involving government funding, are subject to special governmental regulations and impose special requirements on Mitel and on our workforce.

When cost and pricing data are required to respond to a government solicitation, the cost and pricing data must be current, accurate and complete. All costs are to be properly recorded, documented and retained in compliance with provincial, federal and local procurement regulations. Each division/ business unit doing business with governments must invoice the government in strict compliance with applicable government cost principles and other regulations.

When contracting with a government, you are obligated to ensure the truth of any representations made to government agencies and to ensure the quality of goods and services provided to the government. Violating these laws could potentially subject Mitel and the individuals involved to criminal and civil penalties, including prison sentences.

Each Mitel employee is responsible to make sure that government requirements are met and that all government regulations are being followed. Some examples of these requirements include: 1) accurately representing which Mitel products are allowable for sale under government contracts; 2) accurately representing the price or cost of Mitel products or services; 3) not improperly soliciting or obtaining confidential information, such as sealed competitors’ bids, from government officials prior to the award of a contract; 4) hiring present and former government personnel only in compliance with applicable laws and regulations (as well as in consultation with the Legal Department and Human Resources); and 5) not including hidden terms, side agreements or other undisclosed arrangements.

 

 

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Government Investigations

Mitel will cooperate fully in any appropriate governmental or regulatory investigation. Some governmental dealings can be handled by the employee responsible for such matters. However, whenever an employee, officer or director receives information about a new governmental investigation or inquiry, or has any concerns about any governmental dealing, they are required to report the information to the Global Business Ethics and Compliance Office or the Legal Department.

Mitel employees, officers or directors, shall never, under any circumstances: destroy or alter any Mitel documents in anticipation of a request for the document from any governmental authority; make any untrue or misleading statements to any governmental investigator; or attempt to influence any Mitel employee, or any other person, to provide false or misleading information or to hide any information from any governmental investigator. Violation of this mandate could lead to disciplinary action, up to and including termination.

Environment

Mitel is committed to protecting the environment. All employees are required to comply with all applicable environmental protection legislation. Violation of environmental protection laws, even if unintentional, can result in severe penalties to Mitel and/or the employees involved. Employees must report any circumstances where toxic substances are spilled or released into the environment immediately to the Global Business Ethics and Compliance Office or the Legal Department. See also any applicable Mitel policy.

Employees are urged to reduce, reuse, and recycle, and to participate in the recycling programs implemented at Mitel work sites.

 

 

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Enforcement of the Code

Duty to Disclose/Report

Employees are required to promptly report all suspected violations of the Code or complaints or concerns including,

 

•

financial statements or other disclosures

 

•

accounting, internal accounting or disclosure controls

 

•

auditing matters

 

•

breaches of Mitel security policies

 

•

illegal or unethical behaviour

 

•

breaches of any applicable law, rule or regulation

 

•

retaliation against any person reporting a suspected violation of the Code.

 

 

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Reporting Options

 

•

Employees may contact the Ethics Line anonymously:

 

Country		Type of Service		First Dial (Direct Access Codes)		Second Dial
Australia		Direct Access		1-800-881-011 to place calls using Telstra 1-800-551-155 to place calls using Optus		866-617-4448
Barbados		Direct Access		1-800-225-5288		866-617-4448
Belgium		Direct Access		0-800-100-10		866-617-4448
Brazil		Direct Access		0-800-890-0288 or 0-800-888-8288		866-617-4448
France		Direct Access		0-800-99-0011		866-617-4448
Germany		Direct Access		0-800-225-5288		866-617-4448
Hong Kong		Direct Access		###-##-#### or ###-##-####		866-617-4448
Mexico		Direct Access		01-800-288-2872 or 001-800-462-4240		866-617-4448
Saudi Arabia		Direct Access		1-800-10		866-617-4448
Singapore		Direct Access		800-011-1111 or 800-001-0001		866-617-4448
South Africa		Direct Access		0-800-99-0123		866-617-4448
Spain		Direct Access		###-##-####		866-617-4448
United Arab Emirates		Direct Access		0-800-121		866-617-4448
United Kingdom		Direct Access		0-800-89-0011 or 0-500-89-0011		866-617-4448
Canada		Toll-free		n/a		1-866-617-4448
United States		Toll-free		n/a		1-866-617-4448

For Direct Access dialing, the caller must first enter the access code and then dial the ‘866’ number provided for the country.

In some cases, there may be more than one access code per country. Which one to use depends on the exact calling area.

The most up-to-date Direct Access information is available on the following website:

http://www.usa.att.com/traveler/index.jsp

 

•

Ethics Line Web-site Access:

https://www.compliance-helpline.com/welcomePageMitel.jsp

 

•

Or one of the internal company contacts:

 

•

Global Business Ethics and Compliance Office:

 

•

[email protected]

 

•

x 72182

 

•

Legal Department: +1 (613) 592-2122

All communications will be treated with the highest regard for confidentiality.

 

 

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Non-retaliation

No director, officer or employee of Mitel who in good faith reports a violation of the Mitel Code of Business Conduct or complaints or concerns, including:

 

•

financial statements or other disclosures

 

•

accounting, internal accounting or disclosure controls

 

•

auditing matters

 

•

breaches of Mitel security policies

 

•

illegal or unethical behaviour

 

•

breaches of any applicable law, rule or regulation

 

•

retaliation against any person reporting a suspected violation of the Code

shall suffer harassment, retaliation or adverse employment consequence.

This Policy is intended to encourage and enable the Mitel workforce to raise serious concerns utilizing an internal reporting procedure that provides the individual with adequate protection from retaliation by Mitel, or any of its employees, officers and directors.

 

 

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Investigative Action/Discipline

Following the receipt of any issues, concerns or complaints submitted pursuant to this Code, the Global Business Ethics and Compliance Office will investigate each matter reported and take/recommend corrective and disciplinary actions, where appropriate. Disciplinary actions that may be taken include, but are not limited to warning, censure, reprimand, suspension, loss of pay and termination.

The Global Business Ethics and Compliance Office may enlist or retain assistance both inside and outside the company, including members of the Mitel Internal Audit Department, other employees of Mitel (who may possess relevant subject matter expertise), the Chair of the Board of Directors’ Audit Committee and/or outside legal, accounting or other advisors, as appropriate, to assist the Global Business Ethics and Compliance Office in conducting investigations arising out of a report submitted pursuant to this Code.

Appropriate records will be maintained of incidents reported and subsequent investigations for a period of time determined by applicable Mitel policy. The Global Business Ethics and Compliance Office shall keep a written record of all reports or inquiries and report compliance activities and complaints on a regular basis to the Audit Committee of the Mitel Board of Directors.

Right to Investigate, Audit and Enforce

Mitel reserves the right to investigate, audit and enforce compliance with this Code. All employees, officers and directors shall cooperate with properly authorized internal or external auditors or compliance investigators and provide them full, free and unrestricted access to all Mitel operations, facilities, and records.

Waivers

The Board of Directors (in the case of a violation by an executive officer or director) or the Director of Global Business Ethics and Compliance (in the case of a violation by any other employee) may, in its discretion, waive any violation of this Code. Any waiver for an executive officer or director shall be disclosed in a timely manner as required by the corporate governance guidelines of the NASDAQ Stock Market, the applicable rules of the Securities and Exchange Commission and the applicable securities laws and the rules of any other stock exchange on which the Mitel’s securities are listed for trading.

 

 

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Resources

The most current version of this Code of Business Conduct is located on Mitel’s website, intranet or can be obtained by contacting the Global Business Ethics and Compliance Office.

Many Mitel policies can be found on Mitel’s website and Policy Portal or can be obtained from your management.

 

 

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Always Remember…..

When in doubt…contact Mitel’s Global Business Ethics and Compliance Office.

This Code sets out an ethical framework to assist employees, officers, directors, contractors and agents in making choices while carrying out their duties at Mitel. It cannot describe the best course of action in every situation. Mitel relies on employees, officers, directors, contractors and agents to use their judgment and to be guided by the spirit of this Code.

ALWAYS think before acting and seek guidance when unsure.

As our society and corporate culture continues to evolve, Mitel policies and practices will be required to change. Mitel will continually review this Code and all policies to meet the requirements of new developments. Employees are encouraged to assist this process by bringing to the attention of the Global Business Ethics and Compliance Office or the Legal Department any issues or developments of concern. The most current and effective version of this Code will be located on the Mitel intranet for accessibility and review.

 

 

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