Exhibit 99.2
VOTING AND EXCHANGE AGENCY AGREEMENT
This VOTING AND EXCHANGE AGENCY AGREEMENT
is made as of the 4th day of March,
2005
BETWEEN:
WIRELESS AGE COMMUNICATIONS, INC., a
corporation incorporated under the laws of
Nevada and having its corporate office at
13980 Jane St., King City, Ontario,
L7B 1A3 ("Parent")
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1588102 ONTARIO INC., a corporation
incorporated under the laws of the Province
of Ontario and having its principal office
at 13980 Jane St., King City,
Ontario, L7B 1A3 ("Exchangeco")
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SEGAL - TALARICO - HABIB - MOLOT LLP,
a limited liability partnership formed
under the laws of the Province of Ontario and having its offices at 2650
Queensview Drive, Suite 200, Ottawa, ON,
K2B 8H6 (the "Agent")
WHEREAS:
1. Pursuant to a Share Exchange Agreement
dated as of even date herewith ("Share
Exchange Agreement"), entered into between
Parent, Exchangeco and mmwave
Technologies Inc. ("Company") and the
shareholders of the Company (collectively,
the "Parties"), the Parties have agreed to
the acquisition of the Company by
Parent.
2. Pursuant to the Share Exchange
Agreement, shareholders of the Company will
exchange their Class A Common Shares in the
capital of the Company ("Class A
Common Shares") for exchangeable Class B
Shares in the capital of Exchangeco
(the "Exchangeable Shares").
3. Pursuant to the terms and conditions of
the Share Exchange Agreement, the
parties thereto have further agreed that
the Parent, Exchangeco and the Agent
shall enter into a Support Agreement, dated
as of even date herewith (the
"Support Agreement") providing further
terms, conditions, rights, restrictions
and obligations of performance in regard to
actions which may be taken in regard
to the Exchangeable Shares under the Share
Exchange Agreement.
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Voting And Exchange Agency Agreement
4. In accordance with the Share Exchange
Agreement, Parent and Exchangeco have
agreed to enter into a voting and exchange
agency agreement with an Agent
appointed by the holders of such
Exchangeable Shares substantially in the form
of this Agreement.
5. Any statements of fact contained in this
Agreement are made by Parent and
Exchangeco and not by the Agent.
NOW THEREFORE in consideration of the
respective covenants and agreements
provided in this Agreement and for other
good and valuable consideration (the
receipt and sufficiency of which are hereby
acknowledged), the Parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the following terms
shall have the following meanings:
"Affiliate" of any person means any other
person directly or indirectly
controlled by, or under control of, that
person. For the purposes of this
definition, "control" (including, with
correlative meanings, the terms
"controlled by" and "under common control
of"), as applied to any person, means
the possession by another person, directly
or indirectly, of the power to direct
or cause the direction of the management
and policies of that first mentioned
person, whether through the ownership of
voting securities, by contract or
otherwise.
"Agent" means Segal - Talarico - Habib -
Molot LLP, acting by action of duly
authorized person thereof, and, subject to
the provisions of Article 10,
includes any successor Agent.
"Ancillary Rights" means all of Parent's
rights to compel the liquidation and/or
redemption of the Exchangeable Shares
subject to the terms and countervailing
rights of the holders of the Exchangeable
Shares.
"Board of Directors" means the board of
directors of Exchangeco.
"Business Day" means any day on which
commercial banks are open for business in
Toronto, Ontario, other than a Saturday, a
Sunday or a day observed as a holiday
in Toronto, Ontario under the laws of the
Province of Ontario or the federal
laws of Canada.
"Escrowed Shares" means WACI Common Shares,
par value U.S. $0.00l, which
entitles the holder of record to a number
of votes at meetings of holders of
WACI Common Shares equal to the number of
Exchangeable Shares outstanding from
time to time, which shares are to be issued
to, deposited with, and voted by,
the Agent as described herein.
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Voting And Exchange Agency Agreement
"Exchangeable Shares" means the non-voting
exchangeable shares in the capital of
Exchangeco.
"Insolvency Event" means the institution by
Exchangeco of any proceeding to be
adjudicated a bankrupt or insolvent or to
be wound up, or the consent of
Exchangeco to the institution of
bankruptcy, insolvency or winding-up
proceedings against it, or the filing of a
petition, answer or consent seeking
dissolution or winding-up under any
bankruptcy, insolvency or analogous laws,
including without limitation the Company
Creditors' Arrangement Act (Canada) and
the Bankruptcy and Insolvency Act (Canada),
and the failure by Exchangeco to
contest in good faith any such proceedings
commenced in respect of Exchangeco
within 30 days of becoming aware thereof,
or the consent by Exchangeco to the
filing of any such petition or to the
appointment of a receiver, or the making
by Exchangeco of a general assignment for
the benefit of creditors, or the
admission in writing by Exchangeco of its
inability to pay its debts generally
as they become due, or Exchangeco not being
permitted, pursuant to solvency
requirements of applicable law, to redeem
any Retracted Shares pursuant to the
Share Provisions.
"Liquidation Call Right" has the meaning
ascribed thereto in the Share
Provisions.
"Liquidation Event" has the meaning
ascribed thereto in section 5.12(b).
"Liquidation Event Effective Date" has the
meaning ascribed thereto in section
5.12(c).
"List" has the meaning ascribed thereto in
section 4.6.
"Officer's Certificate" means, with respect
to Parent or Exchangeco, as the case
may be, a certificate signed by any one of
Chief Executive Officer, President or
Chief Financial Officer of Parent or
Exchangeco, as the case may be.
"WACI Common Shares" means shares of Common
Stock, par value U.S. $0.001, in the
capital of Parent.
"Parent Consent" has the meaning ascribed
thereto in section 4.2.
"Parent Meeting" has the meaning ascribed
thereto in section 4.2.
"Parent Successor" has the meaning ascribed
thereto in section 11.1(a).
"Person" includes an individual,
partnership, corporation, company,
unincorporated syndicate or person
organization, trust, Agent, executor,
administrator and other legal
representative.
"Share Provisions" means the rights,
privileges, restrictions and conditions
attaching to the Exchangeable Shares
contained in the Support Agreement.
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Voting And Exchange Agency Agreement
"Support Agreement" means that certain
exchangeable share support agreement made
as of even date herewith between Parent,
Exchangeco and the Agent.
"Vendors" means the registered holders from
time to time of Exchangeable Shares,
other than Parent, its Affiliates and the
Agent. "Vendor Votes" has the meaning
ascribed thereto in section 4.2.
"Voting Rights" means the voting rights of
WACI Common Shares except as
otherwise set forth in the Share Exchange
Agreement.
1.2 Interpretation Not Affected by
Headings, etc.
The division of this Agreement into
Articles, sections and other portions and
the insertion of headings are for
convenience of reference only and should not
affect the construction or interpretation
of this Agreement. Unless otherwise
indicated, all references to an "Article"
or "section" followed by a number
and/or a letter refer to the specified
Article or section of this Agreement. The
terms "this Agreement", "hereof" "herein",
and "hereunder" and similar
expressions refer to this Agreement and not
to any particular Article, section
or other portion hereof and include any
agreement or instrument supplementary or
ancillary hereto.
1.3 Number, Gender, etc.
Words in the singular number only shall
include the plural and vice versa. Words
in one gender shall include all
genders.
1.4 Date for any Action
If any date on which any action is required
to be taken under this Agreement is
not a Business Day, such action shall be
required to be taken on the next
succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 Establishment of Agency
The Agent will hold the Escrowed Shares in
order to enable the Agent to execute
and perform in accordance with all
provisions herein and pursuant to the
provisions of the Support Agreement, in
each case as Agent for and on behalf of
the Vendors as provided in this Agreement
and the Support Agreement.
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Voting And Exchange Agency Agreement
ARTICLE 3
ESCROWED SHARES
3.1 Issue and Ownership of the Escrowed
Shares
Parent hereby issues to and deposits with
the Agent, the Escrowed Shares to be
hereafter held of record by the Agent as
Agent for and on behalf of, and for the
use and benefit of, the Vendors and in
accordance with the provisions of this
Agreement. Parent hereby acknowledges
receipt from the Agent as Agent for and on
behalf of the Vendors of good and valuable
consideration (and the adequacy
thereof) for the issuance of the Escrowed
Shares by Parent to the Agent. During
the term of this Agreement and subject to
the terms and conditions of this
Agreement, the Agent shall possess and be
vested with full legal ownership of
the Escrowed Shares and shall be entitled
to exercise all of the rights and
powers of an owner with respect to the
Escrowed Shares provided that the Agent
shall:
(a) hold the Escrowed Shares and the legal
title thereto as Agent solely for the
use and benefit of the Vendors in
accordance with the provisions of this
Agreement; and
(b) except as specifically authorized by
this Agreement, have no power or
authority to sell, transfer, vote or
otherwise deal in or with the Escrowed
Shares and the Escrowed Shares shall not be
used or disposed of by the Agent for
any purpose other than the purposes set out
in this Agreement.
3.2 Legended Share Certificates
Exchangeco shall cause each certificate
representing Exchangeable Shares to bear
an appropriate legend notifying the Vendors
and all third parties of the
existence of this Agreement, which legend
is set forth in section 1.9 of the
Share Exchange Agreement.
3.3 Safe Keeping of Certificate
The certificate representing the Escrowed
Shares shall at all times be held in
safe keeping by the Agent.
3.4 WACI Share Reorganization
From time to time, WACI shall issue and
deliver to the Agent such additional
common shares in the stock of WACI and will
take all such further actions and
steps as are necessary to comply with its
obligations pursuant to the terms of
the Support Agreement.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 Voting Rights
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Voting And Exchange Agency Agreement
The Agent, as the holder of record of the
Escrowed Shares, shall be entitled to
all of the Voting Rights, including the
right to vote in person or by proxy the
Escrowed Shares on any matters, questions,
proposals or propositions whatsoever
that may properly come before the
shareholders of Parent at a Parent Meeting or
in connection with a Parent Consent. The
Voting Rights shall be and remain
vested in and exercised by the Agent.
Subject to section 7.14:
(a) the Agent shall exercise the Voting
Rights only on the basis of instructions
received pursuant to this Article 4 from
Vendors entitled to instruct the Agent
as to the voting thereof at the time at
which the Parent Meeting is held; and
(b) to the extent that no instructions are
received from a Vendor with respect
to the Voting Rights to which such Vendor
is entitled, the Agent shall not
exercise or permit the exercise of such
Voting Rights.
4.2 Number of Votes
With respect to all meetings of
shareholders of Parent at which holders of WACI
Common Shares are entitled to vote (each, a
"Parent Meeting") and with respect
to all written consents sought by Parent
from its shareholders including the
holders of WACI Common Shares (each, a
"Parent Consent"), each Vendor shall be
entitled to instruct the Agent to cast and
exercise one of the votes comprised
in the Voting Rights for each Exchangeable
Share owned of record by such Vendor
on the record date established by Parent or
by applicable law for such Parent
Meeting or Parent Consent, as the case may
be (the "Vendor Votes"), in respect
of each matter, question, proposal or
proposition to be voted on at such Parent
Meeting or in connection with such Parent
Consent.
4.3 Mailings to Vendors
With respect to each Parent Meeting and
Parent Consent, the Agent will mail or
cause to be mailed (or otherwise
communicate in the same manner as Parent
utilizes in communications to holders of
WACI Common Shares , subject to the
Agent being advised in writing of such
method of communication and its ability
to provide such method) to each of the
Vendors named in the List referred to in
section 4.6, such mailing or communication
to commence on the same day as the
mailing or notice (or other communication)
with respect thereto is commenced by
Parent to its shareholders:
(a) a copy of such notice, together with
any related materials to be provided to
shareholders of Parent;
(b) a statement that such Vendor is
entitled to instruct the Agent as to the
exercise of the Vendor Votes with respect
to such Parent Meeting or Parent
Consent or, pursuant to section 4.7, to
attend such Parent Meeting and to
exercise personally the Vendor Votes
thereat;
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Voting And Exchange Agency Agreement
(c) a statement as to the manner in which
such instructions may be given to the
Agent, including an express indication that
instructions may be given to the
Agent to give:
(i) a proxy to such Vendor or his designee
to exercise personally the Vendor
Votes; or
(ii) a proxy to a designated agent or other
representative of the management of
Parent to exercise such Vendor Votes;
(d) a statement that if no such
instructions are received from the Vendor, the
Vendor Votes to which such Vendor is
entitled will not be exercised;
(e) a form of direction whereby the Vendor
may so direct and instruct the Agent
as contemplated herein; and
(f) a statement of the time and date by
which such instructions must be received
by the Agent in order to be binding upon
it, which in the case of a Parent
Meeting shall not be earlier than the close
of business on the second Business
Day prior to such meeting, and of the
method for revoking or amending such
instructions.
The materials referred to in sections
4.3(a) through 4.3(f) inclusive shall be
provided by Parent to the Agent.
For the purpose of determining Vendor Votes
to which a Vendor is entitled in
respect of any Parent Meeting or Parent
Consent, the number of Exchangeable
Shares owned of record by the Vendor shall
be determined at the close of
business on the record date established by
Parent or by applicable law for
purposes of determining shareholders
entitled to vote at such Parent Meeting or
to execute a Parent Consent. Parent will
notify the Agent of any decision of the
Board of Directors of Parent with respect
to the calling of any Parent Meeting
or the seeking of a Parent Consent and
shall provide all necessary information
and materials to the Agent in each case
promptly and in any event in sufficient
time to enable the Agent to perform its
obligations contemplated by this section
4.3.
4.4 Copies of Shareholder Information
Parent will deliver to the Agent copies of
all proxy materials (including
notices of Parent Meetings but excluding
proxies to vote WACI Common Shares ),
information statements, reports (including
without limitation, all interim and
annual financial statements) and other
written communications that, in each
case, are to be distributed from time to
time to holders of WACI Common Shares
in sufficient quantities and in sufficient
time so as to enable the Agent to
send those materials to each Vendor at the
same time as such materials are first
sent to holders of WACI Common Shares . The
Agent will mail or otherwise send to
each Vendor, at the expense of Parent,
copies of all such materials (and all
materials specifically directed to the
Vendors or to the Agent for the benefit
of the Vendors by Parent) received by the
Agent from Parent contemporaneously
with the sending of such materials to
holders of WACI Common Shares. The Agent
will also
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Voting And Exchange Agency Agreement
make available for inspection by any Vendor
at the Agent's principal corporate
office in the City of Ottawa all proxy
materials, information statements,
reports and other written communications
that are:
(a) received by the Agent as the registered
holder of the Escrowed Shares and
made available by Parent generally to the
holders of WACI Common Shares; or
(b) specifically directed to the Vendors or
to the Agent for the benefit of the
Vendors by Parent.
4.5 Other Materials
As soon as reasonably practicable after
receipt by Parent or shareholders of
Parent (if such receipt is known by Parent)
of any material sent or given by or
on behalf of a third party to holders of
WACI Common Shares generally, including
without limitation, dissident proxy and
information circulars (and related
information and material) and tender and
exchange offer circulars (and related
information and material), Parent shall use
its reasonable efforts to obtain and
deliver to the Agent copies thereof in
sufficient quantities so as to enable the
Agent to forward such material (unless the
same has been provided directly to
Vendors by such third party) to each Vendor
as soon as possible thereafter. As
soon as practicable following receipt
thereof, the Agent will mail or otherwise
send to each Vendor, at the expense of
Parent, copies of all such materials
received by the Agent from Parent. The
Agent will also make available for
inspection by any Vendor at the Agent's
principal business office in the City of
Ottawa copies of all such materials.
4.6 List of Persons Entitled to Vote
Exchangeco shall, (a) prior to each annual,
general and special Parent Meeting
or the seeking of any Parent Consent and
(b) forthwith upon each request made at
any time by the Agent in writing, prepare
or cause to be prepared a list (a
"List") of the names and addresses of the
Vendors arranged in alphabetical order
and showing the number of Exchangeable
Shares held of record by each such
Vendor, in each case at the close of
business on the date specified by the Agent
in such request or, in the case of a List
prepared in connection with a Parent
Meeting or a Parent Consent, at the close
of business on the record date
established by Parent or pursuant to
applicable law for determining the holders
of Parent Common Shares entitled to receive
notice of and/or to vote at such
Parent Meeting or to give consent in
connection with such Parent Consent. Each
such List shall be delivered to the Agent
promptly after receipt by Exchangeco
of such request or the record date for such
meeting or seeking of consent, as
the case may be, and in any event within
sufficient time to permit the Agent to
perform its obligations under this
Agreement. Parent agrees to give Exchangeco
notice (with a copy to the Agent) of the
calling of any Parent Meeting or the
seeking of any Parent Consent, together
with the record dates therefor,
sufficiently prior to the record date in
connection with such meeting or seeking
of such consent so as to enable Exchangeco
to perform its obligations under this
section 4.6.
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Voting And Exchange Agency Agreement
4.7 Entitlement to Direct Votes
Any Vendor named in a List prepared in
connection with any Parent Meeting or
Parent Consent will be entitled to (a)
instruct the Agent in the manner
described in section 4.3 with respect to
the exercise of the Vendor Votes to
which such Vendor is entitled or (b) attend
such meeting and personally exercise
thereat, as the proxy of the Agent, the
Vendor Votes to which such Vendor is
entitled.
4.8 Voting by Agent and Attendance of Agent
Representative at Meeting
(a) In connection with each Parent Meeting
and Parent Consent, the Agent shall
exercise, either in person or by proxy, in
accordance with the instructions
received from a Vendor pursuant to section
4.3, the Vendor Votes to which such
Vendor is entitled to direct the vote (or
any lesser number thereof as may be
set forth in the instructions); provided,
however, that such written
instructions are received by the Agent from
the Vendor prior to the time and
date fixed by the Agent for receipt of such
instructions in the notice given by
the Agent to the Vendor pursuant to section
4.3.
(b) The Agent shall cause a representative
who is empowered by it to sign and
deliver, on behalf of the Agent, proxies
for Voting Rights to attend each Parent
Meeting. Upon submission by a Vendor (or
its designee) of identification
satisfactory to the Agent's representative,
and at the Vendor's request, such
representative shall sign and deliver to
such Vendor (or its designee) a proxy
to exercise personally the Vendor Votes as
to which such Vendor is otherwise
entitled hereunder to direct the vote, if
such Vendor either (i) has not
previously given the Agent instructions
pursuant to section 4.3 in respect of
such meeting or (ii) submits to such
representative written revocation of any
such previous instructions. At such
meeting, the Vendor exercising such Vendor
Votes shall have the same rights as the
Agent to speak at the meeting in respect
of any matter, question, proposal or
proposition, to vote by way of ballot at
the meeting in respect of any matter,
question, proposal or proposition, and to
vote at such meeting by way of a show of
hands in respect of any matter,
question or proposition. Parent shall
reimburse the Agent for any reasonable
expenses incurred in the course of
attending or causing a representative to
attend each Parent Meeting.
4.9 Distribution of Written Materials
Any written materials distributed by the
Agent pursuant to this Agreement shall
be sent by mail (or otherwise communicated
in the same manner as Parent utilizes
in communications to holders of WACI Common
Shares subject to the Agent being
advised in writing of such method of
communication and its ability to provide
such method) to each Vendor at its address
as shown on the books of Exchangeco.
Exchangeco shall provide or cause to be
provided to the Agent for this purpose,
on a timely basis and without charge or
other expense:
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Voting And Exchange Agency Agreement
(a) a current List; and
(b) upon the request of the Agent, mailing
labels to enable the Agent to carry
out its duties under this Agreement.
4.10 Termination of Voting Rights
All of the rights of a Vendor with respect
to the Vendor Votes exercisable in
respect of the Exchangeable Shares held by
such Vendor, including the right to
instruct the Agent as to the voting of or
to vote personally such Vendor Votes,
shall be deemed to be surrendered by the
Vendor to Parent, and such Vendor Votes
and the Voting Rights represented thereby
shall cease immediately upon the
redemption of Exchangeable Shares pursuant
to the Share Provisions, or upon the
effective date of the liquidation,
dissolution or winding-up of Exchangeco
pursuant to the Share Provisions.
ARTICLE 5
ANCILLARY RIGHTS
5.1 Grant and Ownership of the Ancillary
Rights
Each of Parent and Exchangeco hereby grants
to the Agent as Agent for and on
behalf of, and for the use and benefit of,
the Vendors, the Ancillary Rights,
all in accordance with the provisions of
this Agreement and the Support
Agreement. Parent hereby acknowledges
receipt from the Agent as Agent for and on
behalf of the Vendors of good and valuable
consideration (and the adequacy
thereof) for the grant of the Ancillary
Rights by Parent to the Agent. During
the term of this Agreement and subject to
the terms and conditions of this
Agreement, the Agent shall possess and be
vested with full legal ownership of
the Ancillary Rights and shall be entitled
to exercise all of the rights and
powers of an owner with respect to the
Ancillary Rights provided that the Agent
shall:
(a) hold the Ancillary Rights and the legal
title thereto as Agent solely for
the use and benefit of the Vendors in
accordance with the provisions of this
Agreement; and
(b) except as specifically authorized by
this Agreement, have no power or
authority to exercise or otherwise deal in
or with the Ancillary Rights, and the
Agent shall not exercise any such rights
for any purpose other than the purposes
set out in this Agreement.
5.2 Legended Share Certificates
Exchangeco will cause each certificate
representing Exchangeable Shares to bear
an appropriate legend notifying the Vendors
of their right to instruct the Agent
with respect to the exercise of the
Ancillary Rights in respect of the
Exchangeable Shares held by a Vendor.
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Voting And Exchange Agency Agreement
5.3 General Exercise of Ancillary
Rights
The Ancillary Rights shall be and remain
vested in and exercisable by the Agent.
Subject to section 7.14, the Agent shall
exercise the Ancillary Rights only on
the basis of instructions received pursuant
to this Article 5 from Vendors
entitled to instruct the Agent as to the
exercise thereof. To the extent that no
instructions are received from a Vendor
with respect to the Ancillary Rights,
the Agent shall not exercise or permit the
exercise of the Ancillary Rights.
5.4 Purchase Price
The purchase price payable by Parent for
each Exchangeable Share to be purchased
by Parent under the Ancillary Rights shall
be an amount per share equal to (a)
the Current Market Price of a WACI Common
Share on the last Business Day prior
to the day of closing of the purchase and
sale of such Exchangeable Share under
the Ancillary Rights, which shall be
satisfied in full by Parent instructing
Agent to deliver to such holder one Parent
Common Share, plus (b) to the extent
not paid by Exchangeco, delivery by Parent
of an additional amount equivalent to
the full amount of all declared and unpaid
dividends on each such Exchangeable
Share held by such holder on any dividend
record date which occurred prior to
the closing of the purchase and sale.
5.5 Exercise Instructions
Subject to the terms and conditions herein
set forth, each of the Parent,
Exchangeco and/or each Vendor, as the case
may be, shall be entitled to instruct
the Agent to exercise any and all Ancillary
Rights with respect to all or any
part of the Exchangeable Shares registered
in the name of such Vendor on the
books of Exchangeco. To cause the exercise
of such Ancillary Rights by the
Agent, the respective party shall deliver
to the Agent, in person or by
certified or registered mail, at its
principal business office in Ottawa,
Ontario or at such other places in Canada
as the Agent may from time to time
designate by written notice, such notice of
the action to be taken and
specification of the provision of authority
in the respective Share Exchange
Agreement, Support Agreement, or this
Agreement, under which such action is
requested. In the case of the Vendors, each
Vendor shall when initiating a
request for such action or when receiving
notice of action on the part of Parent
to purchase or otherwise acquire the
Exchangeable Shares, shall deliver to the
Agent the certificates representing the
Exchangeable Shares which such Vendor
desires Parent to purchase, duly endorsed
in blank for transfer, and accompanied
by such other documents and instruments as
may be required to effect a transfer
of Exchangeable Shares under the Business
Corporations Act (Ontario)and the
articles and by-laws of Exchangeco and such
additional documents and instruments
as the Agent may reasonably require
together with (a) a duly completed form of
notice of exercise of such Right, contained
on the reverse of or attached to the
Exchangeable Share certificates, stating
(i) that the Vendor thereby instructs
the Agent to exercise the respective right
of Vendor so as to require Parent to
purchase from the Vendor the number of
Exchangeable Shares specified therein,
(ii) that such Vendor has good title to and
owns all such Exchangeable Shares to
be acquired by Parent free and clear of all
liens, claims and
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Voting And Exchange Agency Agreement
encumbrances, (iii) the names in which the
certificates representing Parent
Common Shares issuable in connection with
an exercise of rights provided under
the Exchangeable Shares, (iv) the names and
addresses of the persons to whom
such Parent Common Share certificates
should be delivered, and (v) payment (or
evidence satisfactory to the Agent,
Exchangeco and Parent of payment) of the
taxes (if any) payable as contemplated by
section 5.8 of this Agreement. If only
a portion of the Exchangeable Shares
represented by any certificate or
certificates delivered to the Agent are to
be purchased by Parent under the
respective Ancillary Right, a new
certificate for the balance of such
Exchangeable Shares shall be issued to the
holder at the expense of Exchangeco.
5.6 Delivery of WACI Common Shares; Effect
of Exercise
Promptly after receipt of the certificates
representing the Exchangeable Shares
which the Vendor desires Parent to purchase
under the Ancillary Rights, together
with such documents and instruments of
transfer and a duly completed form of
notice of exercise of the Ancillary Right
(and payment of taxes, if any, payable
as contemplated by section 5.8 or evidence
thereof), duly endorsed for transfer
to Parent, the Agent shall notify Parent
and Exchangeco of its receipt of the
same, which notice to Parent and Exchangeco
shall constitute exercise of the
Ancillary Right by the Agent on behalf of
the holder of such Exchangeable
Shares, and Parent shall promptly
thereafter deliver or cause to be delivered to
the Agent, for delivery to the Vendor of
such Exchangeable Shares (or to such
other persons, if any, properly designated
by such Vendor) the number of WACI
Common Shares issuable in connection with
the exercise of the Ancillary Right,
and on the applicable payment date cheques
for the balance, if any, of the total
purchase price therefor without interest
(but less any amounts withheld pursuant
to section 5.13); provided, however, that
no such delivery shall be made unless
and until the Vendor requesting the same
shall have paid the taxes (or provided
evidence satisfactory to the Agent,
Exchangeco and Parent of the payment of the
taxes, if any, payable) as contemplated by
section 5.8 of this Agreement.
Immediately upon the giving of notice by
the Agent to Parent and Exchangeco of
the exercise of the Ancillary Right as
provided in this section 5.6, the closing
of the transaction of purchase and sale
contemplated by the Ancillary Right
shall be deemed to have occurred and the
holder of such Exchangeable Shares
shall be deemed to have transferred to
Parent all of such holder's right, title
and interest in and to such Exchangeable
Shares and the related interest in the
Escrow Shares and the benefit of the
Support Agreement and shall cease to be a
holder of such Exchangeable Shares and
shall not be entitled to exercise any of
the rights of a holder in respect thereof,
other than the right to receive his
proportionate part of the total purchase
price therefor, unless the requisite
number of WACI Common Shares is not
delivered by the the Agent to the Vendor
within five Business Days of the date of
the giving of such notice by the Agent,
in which case the rights of the Vendor
shall remain unaffected until such WACI
Common Shares are delivered by the Agent .
. Concurrently with such Vendor
ceasing to be a holder of Exchangeable
Shares, the Vendor shall be considered
and deemed for all purposes to be the
holder of WACI Common Shares delivered to
it pursuant to the Ancillary Rights.
-12-
<PAGE>
Voting And Exchange Agency Agreement
5.7 Exercise of Ancillary Rights Subsequent
to Retraction in Insolvency
In the event that a Vendor has exercised
its rights under the Share Provisions
to require Exchangeco to redeem any or all
of the Exchangeable Shares held by
the Vendor (the "Retracted Shares") and is
notified by Exchangeco pursuant to
the Share Provisions that Exchangeco will
not be permitted as a result of
solvency requirements of applicable law to
redeem all such Retracted Shares, and
that the Vendor has not revoked the
retraction request delivered by the Vendor
to Exchangeco pursuant to the Share
Provisions, the retraction request will
constitute and will be deemed to constitute
notice from each of Parent,
Exchangeco and Vendor to the Agent
instructing the Agent to cause the deemed
exercise of the Exchange Right in regard to
WACI Common Shares held in escrow by
the Agent with respect to those Retracted
Shares that Exchangeco is unable to
redeem and to promptly cause the
distribution of such WACI Common Shares from
escrow to each such Vendor. In any such
event, Exchangeco hereby agrees with the
Agent and in favour of the Vendor promptly
to forward or cause to be forwarded
to the Agent all relevant materials
delivered by the Vendor to Parent or
Exchangeco or to the transfer agent of the
Exchangeable Shares (including
without limitation, a copy of the
retraction request delivered pursuant
