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 00000 Xxxx Xx., Xxxx Xxxx, Xxxxxxx,
X0X 0X0 ("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 00000 Xxxx Xx., Xxxx Xxxx,
Xxxxxxx, X0X 0X0 ("Exchangeco")
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XXXXX - XXXXXXXX - XXXXX - XXXXX LLP, a limited liability partnership formed
under the laws of the Province of Ontario and having its offices at 0000
Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX, X0X 0X0 (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.
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 Xxxxx - Xxxxxxxx - Xxxxx - Xxxxx 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
Xxxxxxx, Xxxxxxx, 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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(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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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.
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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 to the
Share Provisions) in connection with such proposed redemption of the Retracted
Shares and the deemed exercise of the Exchange Right with respect to the
Retracted Shares that Exchangeco is not permitted to redeem and the Agent will
issue from escrow such number of WACI shares in satisfaction therewith.
5.8 Stamp or Other Transfer Taxes
Upon any sale of Exchangeable Shares to Parent pursuant to the Ancillary Rights,
the share certificate or certificates representing WACI Common Shares to be
delivered in connection with the payment of the total purchase price therefore
shall be issued in the name of the Vendor of the Exchangeable Shares so sold or
in such names as such Vendor may otherwise direct in writing without charge to
the holder of the Exchangeable Shares so sold; provided, however, that such
Vendor (a) shall pay (and none of Parent, Exchangeco or the Agent shall be
required to pay) any documentary, stamp, transfer or other taxes that may be
payable in respect of any transfer involved in the issuance or delivery of such
shares to a person other than such Vendor or (b) shall have evidenced to the
satisfaction of the Agent, Parent and Exchangeco that such taxes, if any, have
been paid.
5.9 Notice of Insolvency Event
As soon as practicable following the occurrence of an Insolvency Event or any
event that with the giving of notice or the passage of time or both would be an
Insolvency Event, Exchangeco and Parent shall give written notice thereof to the
Agent. As soon as practicable following the receipt of notice from Exchangeco
and Parent of the occurrence of an Insolvency Event, or upon the Agent becoming
aware of an Insolvency Event, the Agent will mail to each Vendor, at the expense
of Parent, a notice of such Insolvency Event, which notice shall contain a brief
statement of the rights of the Vendors with respect to the Ancillary Rights.
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Voting And Exchange Agency Agreement
5.10 Qualification of WACI Common Shares
Parent covenants that those WACI Common Shares to be issued and delivered
pursuant to the Ancillary Rights which require registration or qualification
with or approval of or the filing of any document, including any prospectus or
similar document, or the taking of any proceeding with or the obtaining of any
order, ruling or consent from any governmental or regulatory authority under any
Canadian or United States federal, provincial or state law or regulation or
pursuant to the rules and regulations of any regulatory authority or the
fulfillment of any other Canadian or United States federal, provincial or state
legal requirement before such shares may be issued and delivered by Parent to
the initial holder thereof or in order that such shares may be freely traded
thereafter (other than any restrictions under Rule 144 or of general application
on transfer by reason of a holder being a "control person" of Parent for
purposes of Canadian provincial securities law or an "affiliate" of Parent for
purposes of United States federal or state securities law), Parent will in good
faith expeditiously take all such actions and do all such things as are
necessary or desirable to cause such WACI Common Shares to be and remain duly
registered, qualified or approved in accordance with section 1.8 of the Share
Exchange Agreement. Parent will in good faith expeditiously take all such
actions and do all such things as are reasonably necessary or desirable to cause
those WACI Common Shares to be delivered pursuant to the Ancillary Rights which
are to be registered pursuant to said section 1.8 of the Share Exchange
Agreement to be listed, quoted or posted for trading on all shares exchanges and
quotation systems on which outstanding WACI Common Shares have been listed by
Parent and remain listed and are quoted or posted for trading at such time.
5.11 WACI Common Shares
Parent hereby represents, warrants and covenants that the WACI Common Shares
issuable as described herein will be duly authorized and validly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance.
5.12 Automatic Exchange on Liquidation of Parent
(a) Parent will give the Agent written notice of each of the following events at
the time set forth below:
(i) in the event of any determination by the board of directors of Parent to
institute voluntary liquidation, dissolution or winding-up proceedings with
respect to Parent or to effect any other distribution of assets of Parent among
its shareholders for the purpose of winding up its affairs, at least 60 days
prior to the proposed effective date of such liquidation, dissolution,
winding-up or other distribution; and
(ii) as soon as practicable following the earlier of (A) receipt by Parent of
notice of, and (B) Parent otherwise becoming aware of, any threatened or
instituted claim, suit, petition or other proceedings with respect to the
involuntary liquidation, dissolution or winding-
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Voting And Exchange Agency Agreement
up of Parent or to effect any other distribution of assets of Parent among its
shareholders for the purpose of winding up its affairs, in each case where
Parent has failed to contest in good faith any such proceeding commenced in
respect of Parent within 30 days of becoming aware thereof.
(b) As soon as practicable following receipt by the Agent from Parent of notice
of any event (a "Liquidation Event") contemplated by section 5.12(a)(i) or
5.12(a)(ii) above, the Agent will give notice thereof to the Vendors. Such
notice will be provided by Parent to the Agent and shall include a brief
description of the automatic exchange of Exchangeable Shares for WACI Common
Shares provided for in section 5.12(c).
(c) In order that the Vendors will be able to participate on a pro rata basis
with the holders of WACI Common Shares in the distribution of assets of Parent
in connection with a Liquidation Event, on the fifth Business Day prior to the
effective date (the "Liquidation Event Effective Date") of a Liquidation Event
all of the then outstanding Exchangeable Shares shall be automatically exchanged
for WACI Common Shares. To effect such automatic exchange, Parent shall purchase
on the fifth Business Day prior to the Liquidation Event Effective Date each
Exchangeable Share then outstanding and held by Vendors, and each Vendor shall
sell the Exchangeable Shares held by it at such time, for a purchase price per
share equal to (a) the Current Market Price of a WACI Common Share on the fifth
Business Day prior to the Liquidation Event Effective Date, which shall be
satisfied in full by the Agent delivering to the Vendor one WACI Common Share,
and (b) to the extent not paid by Exchangeco, Parent shall pay 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 date of the exchange.
(d) On the fifth Business Day prior to the Liquidation Event Effective Date, the
closing of the transaction of purchase and sale contemplated by the automatic
exchange of Exchangeable Shares for WACI Common Shares shall be deemed to have
occurred, and each Vendor shall be deemed to have transferred to Parent all of
the Vendor's right, title and interest in and to such Vendor's Exchangeable
Shares and the related interest in the Escrowed Shares and the benefit of the
Support Agreement and shall cease to be a holder of such Exchangeable Shares and
Agent shall deliver to the Vendor the WACI Common Shares issuable upon the
automatic exchange of Exchangeable Shares for WACI Common Shares and on the
applicable payment date shall deliver to the Agent for delivery to the Vendor a
cheque for the balance, if any, of the total purchase price for such
Exchangeable Shares without interest but less any amounts withheld pursuant to
section 5.13. 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 issued pursuant to the automatic exchange
of Exchangeable Shares for WACI Common Shares and the certificates held by the
Vendor previously representing the Exchangeable Shares exchanged by the Vendor
with Parent pursuant to such automatic exchange shall thereafter be deemed to
represent WACI Common Shares issued to the Vendor by Parent pursuant to such
automatic exchange. Upon the request of a Vendor and the surrender by the Vendor
of Exchangeable Share certificates deemed to
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Voting And Exchange Agency Agreement
represent WACI Common Shares, duly endorsed in blank and accompanied by such
instruments of transfer as Parent may reasonably require, Agent shall deliver or
cause to be delivered to the Vendor certificates representing WACI Common Shares
of which the Vendor is the holder.
5.13 Withholding Rights
Parent and Exchangeco shall be entitled to deduct and withhold from any
consideration otherwise payable under this Agreement to any holder of
Exchangeable Shares or WACI Common Shares such amounts as Parent or Exchangeco
is required or permitted to deduct and withhold with respect to such payment
under the Income Tax Act (Canada), the United States Internal Revenue Code of
1986 or any provision of provincial, state, local or foreign tax law, in each
case as amended or succeeded. To the extent that amounts are so withheld, such
withheld amounts shall be treated for all purposes as having been paid to the
holder of the shares in respect of which such deduction and withholding was
made, provided that such withheld amounts are actually remitted to the
appropriate taxing authority. To the extent that the amount so required or
permitted to be deducted or withheld from any payment to a holder exceeds the
cash portion of the consideration otherwise payable to the holder, Parent and
Exchangeco are hereby authorized to sell or otherwise dispose of such portion of
the consideration as is necessary to provide sufficient funds to Parent or
Exchangeco, as the case may be, to enable it to comply with such deduction or
withholding requirement and Parent or Exchangeco shall notify the holder thereof
and remit to such holder any unapplied balance of the net proceeds of such sale.
Parent represents and warrants that, based upon facts currently known to it, it
has no current intention, as at the date of this Agreement, to deduct or
withhold from any dividend paid to holders of Exchangeable Shares any amounts
under the United States Internal Revenue Code of 1986.
ARTICLE 6
IMPOSITION OF CONDITIONS ON ESCROW SHARES
6.1 Imposition of Additional Conditions on Escrowed Shares
During the term of this Agreement, Parent shall not, without the consent of the
holders at the relevant time of Exchangeable Shares, impose additional terms and
conditions on the Escrowed Shares beyond those set forth in the Share Exchange
Agreement and the Support Agreement.
ARTICLE 7
CONCERNING THE AGENT
7.1 Powers and Duties of the Agent
The rights, powers, duties and authorities of the Agent under this Agreement, in
its capacity as Agent, shall include:
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Voting And Exchange Agency Agreement
(a) receipt and deposit of the Escrowed Shares from Parent as Agent for and on
behalf of the Vendors in accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Vendors as provided in this
Agreement;
(c) voting the Vendor Votes in accordance with the provisions of this Agreement;
(d) receiving the grant of the Ancillary Rights from Parent as Agent for and on
behalf of the Vendors in accordance with the provisions of this Agreement;
(e) exercising and enforcing the Ancillary Rights, in each case in accordance
with the provisions of this Agreement, and in connection therewith receiving
from Vendors Exchangeable Shares and other requisite documents and distributing
to such Vendors WACI Common Shares and cheques, if any, to which such Vendors
are entitled pursuant to the Ancillary Rights;
(f) receiving the benefit of the Support Agreement from Parent as Agent for and
on behalf of the Vendors in accordance with the provisions thereof and of this
Agreement;
(g) enforcing the benefit of the Support Agreement in accordance with the
provisions thereof and of this Agreement;
(h) holding title to the Escrowed Shares and the benefit of the Support
Agreement;
(i) taking action on its own initiative or at the direction of a Vendor or
Vendors to enforce the obligations of Parent and Exchangeco under this Agreement
and the Support Agreement; and
(j) taking such other actions and doing such other things as are specifically
provided in this Agreement.
In the exercise of such rights, powers, duties and authorities, the Agent shall
have (and is granted) such incidental and additional rights, powers, duties and
authority not in conflict with any of the provisions of this Agreement as the
Agent, acting in good faith and in the reasonable exercise of its discretion,
may deem necessary, appropriate or desirable to effect the purpose of this
Agreement. Any exercise of such discretionary rights, powers, duties, and
authorities by the Agent shall be final, conclusive and binding upon all
persons.
The Agent in exercising its rights, powers, duties and authorities hereunder
shall act honestly and in good faith and with a view to the best interests of
the Vendors and shall exercise the care, diligence and skill that a reasonably
prudent Agent would exercise in comparable circumstances.
7.2 Waiver of Conflict of Interest
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Voting And Exchange Agency Agreement
The Agent represents to Parent and Exchangeco that at the date of execution and
delivery of this Agreement there may be construed to exist a conflict of
interest in the role of the Agent as a fiduciary hereunder and the role of the
Agent acting in a representative capacity of one or more of Vendors or the
Company, as to which all parties hereto expressly waive any and all claims of
any nature whatsoever which could be alleged or brought on the basis of any such
appearance of a conflict or actual existence of a conflict. Notwithstanding any
conflict appearing or existing as of the closing date, the Agent shall
thereafter, within 90 days after it becomes aware that a material conflict of
interest exists to the extent that Agent can no longer perform its duties
hereunder, may seek either to eliminate such material conflict of interest or
resign in the manner and with the effect specified in Article 10 herein. To the
extent the Agent has a material conflict of interest after the closing date, the
validity and enforceability of this Agreement shall not be affected in any
manner whatsoever by reason only of the appearance or existence of such material
conflict of interest.
7.3 Dealings with Transfer Agents, Registrars, etc.
Parent and Exchangeco irrevocably authorize the Agent, from time to time, to:
(a) consult, communicate and otherwise deal with the respective registrars and
transfer agents, and with any such subsequent registrar or transfer agent, of
the Exchangeable Shares and WACI Common Shares ; and
(b) requisition from time to time, (i) from any such registrar or transfer agent
any information readily available from the records maintained by it which the
Agent may reasonably require for the discharge of its duties and
responsibilities under this Agreement and (ii) from the transfer agent of WACI
Common Shares, and any subsequent transfer agent of such shares, the share
certificates issuable upon the exercise from time to time of the Ancillary
Rights.
Parent and Exchangeco irrevocably authorize their respective registrars and
transfer agents to comply with all such requests. Parent covenants that it will
supply its transfer agent with duly executed share certificates for the purpose
of completing the exercise from time to time of the Ancillary Rights.
7.4 Books and Records
The Agent shall keep available for inspection by Parent and Exchangeco at the
Agent's principal corporate office in Ottawa, Ontario correct and complete books
and records of account relating to the agency created by this Agreement,
including without limitation, all relevant data relating to mailings and
instructions to and from Vendors. On or before March 31, 2006, and on or before
March 31 in every year thereafter, so long as the Escrowed Shares are on deposit
with the Agent, the Agent shall transmit to Parent and Exchangeco a brief
report, dated as of the preceding December 31st, with respect to:
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Voting And Exchange Agency Agreement
(a) the number of exercises of the Ancillary Rights, if any, and the aggregate
number of Exchangeable Shares received by the Agent on behalf of the Vendors in
consideration of the issuance by Parent of WACI Common Shares in connection with
the Ancillary Rights, during the calendar year ended on such December 31st; and
(b) any action taken by the Agent in the performance of its duties under this
Agreement which it had not previously reported and which, in the Agent's
opinion, materially affects the Escrowed Shares and the benefit of the Support
Agreement.
7.5 Indemnification Prior to Certain Actions by Agent
The Agent shall exercise any or all of the rights, duties, powers or authorities
vested in it by this Agreement at the request, order or direction of any Vendor
upon such Vendor furnishing to the Agent reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by the Agent
therein or thereby, provided that no Vendor shall be obligated to furnish to the
Agent any such security or indemnity in connection with the exercise by the
Agent of any of its rights, duties, powers and authorities with respect to the
Escrowed Shares pursuant to Article 4, subject to section 7.14.
None of the provisions contained in this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur financial liability in the
exercise of any of its rights, powers, duties, or authorities unless funded,
given security and indemnified as aforesaid.
7.6 Action of Vendors
No Vendor shall have the right to institute any action, suit or proceeding or to
exercise any other remedy authorized by this Agreement for the purpose of
enforcing any of its rights hereunder or in connection with the Exchangeable
Shares or for the execution of any trust or power hereunder unless the Vendor
has requested the Agent to take or institute such action, suit or proceeding and
furnished the Agent with the security or indemnity referred to in section 7.5
and the Agent shall have failed to act within a reasonable time thereafter. In
such case, but not otherwise, the Vendor shall be entitled to take proceedings
in any court of competent jurisdiction such as the Agent might have taken; it
being understood and intended that no one or more Vendors shall have any right
in any manner whatsoever to affect, disturb or prejudice the rights hereby
created by any such action, or to enforce any right hereunder or the Voting
Rights, except subject to the conditions and in the manner herein provided, and
that all powers hereunder shall be exercised and all proceedings at law shall be
instituted, had and maintained by the Agent, except only as herein provided, and
in any event for the equal benefit of all Vendors.
7.7 Reliance Upon Declarations
The Agent shall not be considered to be in contravention of any its rights,
powers, duties and authorities hereunder if, when required, it acts and relies
in good faith upon statutory declarations, certificates, opinions or reports
furnished pursuant to the provisions hereof
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Voting And Exchange Agency Agreement
or required by the Agent to be furnished to it in the exercise of its rights,
powers, duties and authorities hereunder if such statutory declarations,
certificates, opinions or reports comply with the provisions of section 7.8, if
applicable, and with any other applicable provisions of this Agreement.
7.8 Evidence and Authority to Agent
Parent and/or Exchangeco shall furnish to the Agent evidence of compliance with
the conditions provided for in this Agreement relating to any action or step
required or permitted to be taken by Parent and/or Exchangeco or the Agent under
this Agreement or as a result of any obligation imposed under this Agreement,
including, without limitation, in respect of the Voting Rights or the Ancillary
Rights and the taking of any other action to be taken by the Agent at the
request of or on the application of Parent and/or Exchangeco promptly if and
when:
(a) such evidence is required by any other section of this Agreement to be
furnished to the Agent in accordance with the terms of this section 7.8; or
(b) the Agent, in the exercise of its rights, powers, duties and authorities
under this Agreement, gives Parent and/or Exchangeco written notice requiring it
to furnish such evidence in relation to any particular action or obligation
specified in such notice.
Such evidence shall consist of an Officer's Certificate of Parent and/or
Exchangeco or a statutory declaration or a certificate made by persons entitled
to sign an Officer's Certificate stating that any such condition has been
complied with in accordance with the terms of this Agreement.
Whenever such evidence relates to a matter other than the Voting Rights or the
Ancillary Rights or the taking of any other action to be taken by the Agent at
the request or on the application of Parent and/or Exchangeco, and except as
otherwise specifically provided herein, such evidence may consist of a report or
opinion of any solicitor, attorney, auditor, accountant, appraiser, valuer,
engineer or other expert or any other person whose qualifications give authority
to a statement made by him, provided that if such report or opinion is furnished
by a director, officer or employee of Parent and/or Exchangeco it shall be in
the form of an officer's certificate or a statutory declaration.
Each statutory declaration, officer's certificate, opinion or report furnished
to the Agent as evidence of compliance with a condition provided for in this
Agreement shall include a statement by the person giving the evidence:
(a) declaring that he has read and understands the provisions of this Agreement
relating to the condition in question;
(b) describing the nature and scope of the examination or investigation upon
which he based the statutory declaration, certificate, statement or opinion; and
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Voting And Exchange Agency Agreement
(c) declaring that he has made such examination or investigation as he believes
is necessary to enable him to make the statements or give the opinions contained
or expressed therein.
7.9 Experts, Advisers and Agents
The Agent may:
(a) in relation to these presents act and rely on the opinion or advice of or
information obtained from any solicitor, attorney, auditor, accountant,
appraiser, valuer, engineer or other expert, whether retained by the Agent or by
Parent and/or Exchangeco or otherwise, and may employ such assistants as may be
necessary to the proper discharge of its powers and duties and determination of
its rights hereunder and may pay proper and reasonable compensation for all such
legal and other advice or assistance as aforesaid; and
(b) employ such agents and other assistants as it may reasonably require for the
proper discharge of its powers and duties hereunder, and may pay reasonable
remuneration for all services performed for it (and shall be entitled to receive
reasonable remuneration for all services performed by it) and compensation for
all disbursements, costs and expenses made or incurred by it in the discharge of
its duties hereunder.
7.10 Investment of Moneys Held by Agent
Unless otherwise provided in this Agreement, any moneys held by or on behalf of
the Agent which under the terms of this Agreement or any other agreement may or
ought to be invested or which may be in the hands of the Agent may be deposited
in the name of the Agent in any loan or trust company authorized to accept
deposits under the laws of Canada or any province thereof at the rate of
interest then current on similar deposits.
7.11 Agent Not Required to Give Security
The Agent shall not be required to give any bond or security in respect of the
execution of the rights, duties, powers and authorities of this Agreement or
otherwise in respect of the premises.
7.12 Agent Not Bound to Act on Request
Except as in this Agreement otherwise specifically provided, the Agent shall not
be bound to act in accordance with any direction or request of Parent and/or
Exchangeco or of the directors thereof until a duly authenticated copy of the
instrument or resolution containing such direction or request shall have been
delivered to the Agent, and the Agent shall be empowered to act upon any such
copy purporting to be authenticated and believed by the Agent to be genuine.
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Voting And Exchange Agency Agreement
7.13 Authority to Carry on Business
The Agent represents to Parent and Exchangeco that at the date of execution and
delivery by it of this Agreement it is authorized to carry on business in Canada
but if, notwithstanding the provisions of this section 7.13, it ceases to be so
authorized to carry on business, the validity and enforceability of this
Agreement and the Voting Rights, the Ancillary Rights shall not be affected in
any manner whatsoever by reason only of such event but the Agent shall, within
90 days after ceasing to be authorized to carry on business in Canada, either
become so authorized or resign in the manner and with the effect specified in
Article 10.
7.14 Conflicting Claims
If conflicting claims or demands are made or asserted with respect to any
interest of any Vendor in any Exchangeable Shares, including any disagreement
between the heirs, representatives, successors or assigns succeeding to all or
any part of the interest of any Vendor in any Exchangeable Shares, resulting in
conflicting claims or demands being made in connection with such interest, then
the Agent shall be entitled, at its sole discretion, to refuse to recognize or
to comply with any such claims or demands. In so refusing, the Agent may elect
not to exercise any Voting Rights, Ancillary Rights subject to such conflicting
claims or demands and, in so doing, the Agent shall not be or become liable to
any person on account of such election or its failure or refusal to comply with
any such conflicting claims or demands. The Agent shall be entitled to continue
to refrain from acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to the Voting Rights or
Ancillary Rights subject to such conflicting claims or demands have been
adjudicated by a final judgment of a court of competent jurisdiction; or
(b) all differences with respect to the Voting Rights or Ancillary Rights
subject to such conflicting claims or demands have been conclusively settled by
a valid written agreement binding on all such adverse claimants, and the Agent
shall have been furnished with an executed copy of such agreement certified to
be in full force and effect.
If the Agent elects to recognize any claim or comply with any demand made by any
such adverse claimant, it may in its discretion require such claimant to furnish
such surety bond or other security satisfactory to the Agent as it shall deem
appropriate to fully indemnify it as between all conflicting claims or demands.
7.15 Acceptance of Appointment
The Agent hereby accepts its appointment as Agent pursuant to this Agreement and
agrees to perform the same upon the terms and conditions herein set forth,
subject to all the terms and conditions herein set forth.
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Voting And Exchange Agency Agreement
7.16 Liability of Agent
The Agent shall incur no liability with respect to the delivery or non-delivery
of any certificate or certificates whether delivered by hand, mail or any other
means.
The Agent in its personal or any other capacity, may buy, lend upon and deal in
securities of Parent or Exchangeco and generally may contract and enter into
financial transactions with Parent or Exchangeco or any of their Affiliates
without being liable to account for any profit made thereby.
The Agent shall not be bound to give any notice or do or take any act, action or
proceeding by virtue of the powers conferred on it hereby unless and until it
shall be specifically required to do so under the terms hereof; nor shall the
Agent be required to take any notice of, or to do so or to take any act, action
or proceeding as a result of any default or breach of any provision hereunder
unless and until notified in writing of such default or breach, which notice
shall distinctly specify the default or breach desired to be brought to the
attention of the Agent and in the absence of such notice the Agent may for all
purposes of this agreement to conclusively assume that no default or breach has
been made in the observance or performance of any of the representations,
warranties, covenants, agreements or conditions contained herein.
The Agent shall not be obligated to disburse any certificates, assets, funds or
other property beyond those which have been provided to it for forwarding to
Vendors.
The Agent shall not be responsible for the validity or quantity of shares or
securities that it receives as a result of exchange or any other transaction.
ARTICLE 8
COMPENSATION
8.1 Fees and Expenses of the Agent
Parent and Exchangeco jointly and severally agree to pay the Agent compensation
for all of the services rendered by it under this Agreement as set out in
Schedule "A" and will reimburse the Agent for all reasonable expenses (including
taxes other than taxes based on the net income of the Agent) and disbursements,
including the fees and expenses of experts, advisers and agents retained
pursuant to section 7.9, and including the cost and expense of any suit or
litigation of any character and any proceedings before any governmental agency
reasonably incurred by the Agent in connection with its duties under this
Agreement; provided that Parent and Exchangeco shall have no obligation to
reimburse the Agent for any expenses or disbursements paid, incurred or suffered
by the Agent in any suit or litigation in which the Agent is determined to have
acted in bad faith or with negligence, recklessness or willful misconduct.
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Voting And Exchange Agency Agreement
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 Indemnification of the Agent
Parent and Exchangeco jointly and severally agree to indemnify and hold harmless
the Agent and each of its partners, employees and agents appointed and acting in
accordance with this Agreement (collectively, the "Indemnified Parties") against
all claims, losses, damages, reasonable costs, penalties, fines and reasonable
expenses (including reasonable expenses of the Agent's legal counsel) which,
without fraud, negligence, recklessness, willful misconduct or bad faith on the
part of such Indemnified Party, may be paid, incurred or suffered by the
Indemnified Party by reason or as a result of the Agent's acceptance its
appointment as Agent, its compliance with its duties set forth in this
Agreement, the Support Agreement, or any written or oral instruction delivered
to the Agent by Parent or Exchangeco pursuant hereto.
In no case shall Parent or Exchangeco be liable under this indemnity for any
claim against any of the Indemnified Parties unless Parent and Exchangeco shall
be notified by the Agent of the written assertion of a claim or of any action
commenced against the Indemnified Parties, promptly after any of the Indemnified
Parties shall have received any such written assertion of a claim or shall have
been served with a summons or other first legal process giving information as to
the nature and basis of the claim. Subject to (ii) below, Parent and Exchangeco
shall be entitled to participate at their own expense in the defense and, if
Parent and Exchangeco so elect at any time after receipt of such notice, either
of them may assume the defense of any suit brought to enforce any such claim.
The Agent shall have the right to employ separate counsel in any such suit and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the Agent unless: (i) the employment of such counsel
has been authorized by Parent or Exchangeco, such authorization not to be
unreasonably withheld; (ii) the named parties to any such suit include both the
Agent and Parent or Exchangeco and the Agent shall have been advised by counsel
acceptable to Parent or Exchangeco that there may be one or more legal defenses
available to the Agent that are different from or in addition to those available
to Parent or Exchangeco and that, in the judgment of such counsel, would present
a conflict of interest were a joint representation to be undertaken (in which
case Parent and Exchangeco shall not have the right to assume the defense of
such suit on behalf of the Agent but shall be liable to pay the reasonable fees
and expenses of counsel for the Agent); or (iii) Parent and/or Exchangeco shall
not have retained legal counsel on behalf of the Agent within a reasonable
amount of time after it has given them notice of a written assertion of a claim
or action against any indemnified party. Such indemnification shall survive the
resignation and removal of the Agent and termination of this agreement.
9.2 Limitation of Liability
The Agent shall not be held liable for any loss which may occur by reason of
depreciation of the value of any part of the Escrowed Shares and the benefit of
the Support Agreement or any loss incurred on any investment of funds pursuant
to this Agreement, except to the
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Voting And Exchange Agency Agreement
extent that such loss is attributable to the fraud, negligence, recklessness,
willful misconduct or bad faith on the part of the Agent.
ARTICLE 10
CHANGE OF AGENT
10.1 Resignation
The Agent, or any Agent hereafter appointed, may at any time resign by giving
written notice of such resignation to Parent and Exchangeco specifying the date
on which it desires to resign, provided that such notice shall not be given less
than one month before such desired resignation date unless Parent and Exchangeco
otherwise agree and provided further that such resignation shall not take effect
until the date of the appointment of a successor Agent and the acceptance of
such appointment by the successor Agent. Upon receiving such notice of
resignation, Parent and Exchangeco shall, with the approval of a majority of the
holders of Exchangeable Shares in accordance with section 11.2 of the Share
Provisions, promptly appoint a successor Agent by written instrument in
duplicate, one copy of which shall be delivered to the resigning Agent and one
copy to the successor Agent. Failing acceptance by a successor Agent, a
successor Agent may be appointed by an order of the Superior Court of Justice of
Ottawa upon application of one or more of the Parties hereto.
10.2 Removal
The Agent, or any Agent hereafter appointed, may (provided a successor Agent is
appointed) be removed at any time on not less than 30 days' prior written notice
by affirmative vote of a majority of holders of Exchangeable Shares in
accordance with section 11.2 of the Share Provisions.
10.3 Successor Agent
Any successor Agent appointed as provided under this Agreement shall execute,
acknowledge and deliver to Parent and Exchangeco and to its predecessor Agent an
instrument accepting such appointment. Thereupon the resignation or removal of
the predecessor Agent shall become effective and such successor Agent, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with the
like effect as if originally named as Agent in this Agreement. However, on the
written request of Parent and Exchangeco or of the successor Agent, the Agent
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of this Agreement, execute and deliver an instrument transferring to
such successor Agent all the rights and powers of the Agent so ceasing to act.
Upon the request of any such successor Agent, Parent, Exchangeco and such
predecessor Agent shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Agent all such
rights and powers.
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Voting And Exchange Agency Agreement
10.4 Notice of Successor Agent
Upon acceptance of appointment by a successor Agent as provided herein, Parent
and Exchangeco shall cause to be mailed notice of the succession of such Agent
hereunder to each Vendor specified in a List. If Parent or Exchangeco shall fail
to cause such notice to be mailed within 10 days after acceptance of appointment
by the successor Agent, the successor Agent shall cause such notice to be mailed
at the expense of Parent and Exchangeco.
ARTICLE 11
PARENT SUCCESSORS
11.1 Certain Requirements in Respect of Combination, etc.
Parent and Exchangeco shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other person or, in the case of a
merger, of the continuing corporation resulting therefrom unless, but may do so
if:
(a) such other person or continuing corporation (herein called the "Parent
Successor"), by operation of law, becomes, without more, bound by the terms and
provisions of this Agreement or, if not so bound, executes, prior to or
contemporaneously with the consummation of such transaction, a Agreement
supplemental hereto and such other instruments (if any) as are satisfactory to
the Agent, acting reasonably, and in the opinion of legal counsel to the Agent
are reasonably necessary or advisable to evidence the assumption by the Parent
Successor of liability for all moneys payable and property deliverable hereunder
and the covenant of such Parent Successor to pay and deliver or cause to be
delivered the same and its agreement to observe and perform all the covenants
and obligations of Parent under this Agreement; and
(b) such transaction shall, to the satisfaction of the Agent, acting reasonably,
and in the opinion of legal counsel to the Agent, be upon such terms and
conditions as substantially to preserve and not to impair in any material
respect any of the rights, duties, powers and authorities of the Agent or of the
Vendors hereunder.
11.2 Vesting of Powers in Successor
Whenever the conditions of section 11.1 have been duly observed and performed,
the Agent and, if required by section 11.1, Parent Successor and Exchangeco or
Parent, as the case may be, shall execute and deliver the supplemental Agreement
provided for in Article 12 and thereupon Parent Successor shall possess and from
time to time may exercise each and every right and power of Exchangeco or
Parent, as the case may be, under this Agreement in the name of Parent or
otherwise any act or proceeding by any provision of this Agreement required to
be done or performed by the Board of Directors
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Voting And Exchange Agency Agreement
of Parent or any officers of Parent may be done and performed with like force
and effect by the directors or officers of such Parent Successor.
11.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger of
any wholly-owned direct or indirect subsidiary of Parent, except Exchangeco,
with or into Parent or the winding-up, liquidation or dissolution of any
wholly-owned subsidiary of Parent, other than Exchangeco, provided that all of
the assets of such subsidiary are transferred to Parent or another wholly-owned
direct or indirect subsidiary of Parent, except Exchangeco, and any such
transactions are expressly permitted by this Article 11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
12.1 Amendments, Modifications, etc.
This Agreement may not be amended or modified except by an agreement in writing
executed by Parent, Exchangeco and the Agent and approved by the Vendors in
accordance with subsection 11.2 of the Share Provisions.
12.2 Administrative Amendments
Notwithstanding the provisions of section 12.1, the Parties may in writing, at
any time and from time to time, without the approval of the Vendors, amend or
modify this Agreement for the purposes of:
(a) adding to the covenants of any or all parties hereto for the protection of
the Vendors hereunder provided that the Board of Directors of each of Exchangeco
and Parent and the Agent and its counsel shall be of the good faith opinion that
such additions will not be prejudicial to the rights or interests of the
Vendors;
(b) making such amendments or modifications not inconsistent with this Agreement
as may be necessary or desirable with respect to matters or questions which, in
the good faith opinion of the Board of Directors of each of Parent and
Exchangeco and in the opinion of the Agent and its counsel, having in mind the
best interests of the Vendors it may be expedient to make, provided that such
Boards of Directors and the Agent shall be of the opinion that such amendments
and modifications will not be prejudicial to the interests of the Vendors; or
(c) making such changes or corrections which, on the advice of counsel to
Parent, Exchangeco and the Agent and its counsel, are required for the purpose
of curing or correcting any ambiguity or defect or inconsistent provision or
clerical omission or mistake or manifest error, provided that the Agent and the
Board of Directors of each of Parent and Exchangeco shall be of the opinion that
such changes or corrections will not be prejudicial to the rights and interests
of the Vendors.
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Voting And Exchange Agency Agreement
12.3 Meeting to Consider Amendments
Exchangeco, at the request of Parent, shall call a meeting or meetings of the
Vendors for the purpose of considering any proposed amendment or modification
requiring approval pursuant hereto. Any such meeting or meetings shall be called
and held in accordance with the articles and by-laws of Exchangeco, the Share
Provisions and all applicable laws.
12.4 Changes in Capital of Parent and Exchangeco
At all times after the occurrence of any event contemplated pursuant to section
2.7 or 2.8 of the Support Agreement or otherwise, as a result of which either
WACI Common Shares or the Exchangeable Shares or both are in any way changed,
this Agreement shall forthwith be amended and modified as necessary in order
that it shall apply with full force and effect, with appropriate changes to all
new securities into which WACI Common Shares or the Exchangeable Shares or both
are so changed and the parties hereto shall execute and deliver a supplemental
Agreement giving effect to and evidencing such necessary amendments and
modifications.
12.5 Execution of Supplemental Agreements
No amendment to or modification or waiver of any of the provisions of this
Agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the Parties hereto. From time to time Exchangeco
(when authorized by a resolution of its Board of Directors), Parent (when
authorized by a resolution of its board of directors) and the Agent may, subject
to the provisions of these presents, and they shall, when so directed by these
presents, execute and deliver by their proper officers, Agreements or other
instruments supplemental hereto, which thereafter shall form part hereof, for
any one or more of the following purposes:
(a) evidencing the succession of Parent Successors and the covenants of and
obligations assumed by each such Parent Successor in accordance with the
provisions of Article 11 and the successors of any successor Agent in accordance
with the provisions of Article 10;
(b) making any additions to, deletions from or alterations of the provisions of
this Agreement, the Voting Rights or the Ancillary Rights which, in the opinion
of the Agent and its counsel, will not be prejudicial to the interests of the
Vendors or are, in the opinion of counsel to the Agent, necessary or advisable
in order to incorporate, reflect or comply with any legislation the provisions
of which apply to Parent, Exchangeco, the Agent or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of this
Agreement, including without limitation, to make or evidence any amendment or
modification to this
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Voting And Exchange Agency Agreement
Agreement as contemplated hereby, provided that, in the opinion of the Agent and
its counsel, the rights of the Agent and Vendors will not be prejudiced thereby.
ARTICLE 13
TERMINATION
13.1 Term
This Agreement shall continue until the earliest to occur of the following
events:
(a) no outstanding Exchangeable Shares are held by a Vendor; and
(b) each of Parent and Exchangeco elects in writing to terminate this Agreement
and such termination is approved by the Vendors in accordance with subsection
11.2 of the Share Provisions.
13.2 Survival
The provisions of Articles 8 and 9 shall survive any termination of this
Agreement.
ARTICLE 14
GENERAL
14.1 Severability
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
Agreement shall not in any way be affected or impaired thereby and the Agreement
shall be carried out as nearly as possible in accordance with its original terms
and conditions.
14.2 Third Party Beneficiaries and Enurement
This Agreement shall be binding upon and enure to the benefit of the Parties and
their respective successors and permitted assigns and to the benefit of the
Vendors.
14.3 Notices to Parties
All notices and other communications between the Parties shall be in writing and
shall be deemed to have been given if delivered personally or by confirmed
telecopy to the parties at the following addresses (or at such other address for
such party as shall be specified in like notice):
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Voting And Exchange Agency Agreement
if to Parent or Exchangeco:
Wireless Age Communications, Inc. 00000 Xxxx Xx., Xxxx Xxxx, Xxxxxxx, X0X 0X0
XXXXXX, Attention: Xxxx Xxxxxxxx, CFO, Telephone No.: (000) 000 0000 Facsimile
No.: (000) 000 0000.
If to the Agent:
Xxxxx - Xxxxxxxx - Xxxxx - Xxxxx LLP, 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
XX, X0X 0X0, Attention: Xxxxxxx Xxxxx, Telephone No.: (000) 000 0000 Facsimile
No.: (000) 000 0000.
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of receipt thereof unless
such day is not a Business Day in which case it shall be deemed to have been
given and received upon the immediately following Business Day.
14.4 Notice to Vendors
Any and all notices to be given and any documents to be sent to any Vendors may
be given or sent to the address of such Vendor shown on the register of holders
of Exchangeable Shares in any manner permitted by the articles and by-laws of
Exchangeco from time to time in force in respect of notices to shareholders and
shall be deemed to be received (if given or sent in such manner) at the time
specified in such by-laws, the provisions of which by-laws shall apply mutatis
mutandis to notices or documents as aforesaid sent to such Vendors.
14.5 Counterparts
This Agreement may be executed in one or more counterparts by original or by
facsimile, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
14.6 Jurisdiction
This Agreement shall be construed and enforced in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein.
14.7 Attornment
Each of the Agent and Parent and Exchangeco agrees that any action or proceeding
arising out of or relating to this Agreement may be instituted in the courts of
Ontario, waives any objection which it may have now or hereafter to the venue of
any such action or proceeding, irrevocably submits to the jurisdiction of the
said courts in any such action or proceeding, agrees to be bound by any final
judgment of the said courts and not to
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Voting And Exchange Agency Agreement
seek, and hereby waives, any review of the merits of any such judgment by the
courts of any other jurisdiction and hereby appoints Exchangeco at its
registered office in the Province of Ontario as attorney for service of process.
[Signature Page Follows]
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Voting And Exchange Agency Agreement
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
WIRELESS AGE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
1588102 ONTARIO INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
XXXXX - XXXXXXXX - XXXXX - XXXXX LLP
As Agent
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Partner
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Voting And Exchange Agency Agreement
Schedule "A"
Compensation Schedule for Agent
The Compensation shall be based on the customary hourly rates of the partners
and employees of the Agent in fulfilling its obligations as set forth in this
Agreement.
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