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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
purs
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