Exhibit 99.3
SUPPORT AGREEMENT
THIS AGREEMENT is made the 4th day of March, 2005,
BETWEEN:
WIRELESS AGE COMMUNICATIONS, INC., a corporation incorporated under the
laws of the State of Nevada, having its principal office at 00000 Xxxx
Xx., Xxxx Xxxx, Xxxxxxx, X0X 0X0 ("WACI")
AND:
1588102 ONTARIO INC., a corporation incorporated pursuant to the laws of
the Province of Ontario with its principal office at 00000 Xxxx Xx., Xxxx
Xxxx, Xxxxxxx, X0X 0X0 ("Exchangeco")
AND:
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 pursuant to a share exchange agreement dated as of even date
hereof (the "Share Exchange Agreement"), Exchangeco has agreed to acquire all of
the Class A Common Shares (the "Class A Common Shares") of mmwave Technologies
Inc. (the "Company") held by Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx,
Xxxx Xxxxxx Holdings Inc., Xxxxx Xxxxxx Holdings Inc., and Xxxxxxx Xxxxxxxxxx
Holdings Inc. (the "Vendors") in exchange for the issuance to the Vendors of
Class B Shares in the capital of Exchangeco (the "Exchangeable Shares");
AND WHEREAS in accordance with the Share Exchange Agreement, WACI and
Exchangeco have agreed to enter into this support agreement (the "Agreement");
AND WHEREAS in accordance with the Share Exchange Agreement, WACI and
Exchangeco have agreed to enter into a voting and exchange agency agreement (the
"Voting And Exchange Agency Agreement") with 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
Support Agreement
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning ascribed thereto in the share provisions
of the Exchangeable Shares (the "Share Provisions"), a copy of which are
attached hereto as Schedule "A".
1.2 Interpretation Not Affected by Headings
The division of this Agreement into Articles, sections and other portions
and the insertion of headings are for convenience of reference only and shall
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
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
COVENANTS OF WACI AND EXCHANGECO
2.1 Covenants Regarding Exchangeable Shares
So long as any Exchangeable Shares not owned by WACI or its Affiliates are
outstanding, WACI shall:
(a) not declare or pay any dividend on WACI Common Shares unless (i)
Exchangeco shall simultaneously declare or pay, as the case may be,
an equivalent dividend (as provided for in the Share Provisions) on
the Exchangeable Shares and (ii) Exchangeco shall have sufficient
money or other assets available to enable the due declaration and
the due and punctual payment, in accordance with applicable law, of
any such dividend on the Exchangeable Shares;
(b) advise Exchangeco sufficiently in advance of the declaration by WACI
of any dividend on WACI Common Shares and take all such other
actions, including payment or transfer of monies, as are necessary,
in co-operation with Exchangeco,
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to ensure that the respective declaration date, record date and
payment date for a dividend on the Exchangeable Shares shall be the
same as the declaration date, record date and payment date for the
corresponding dividend on WACI Common Shares;
(c) ensure that the record date for any dividend declared on WACI Common
Shares is not less than ten (10) Business Days after the declaration
date of such dividend;
(d) take all such actions, including payment or transfer of monies, and
do all such things as are reasonably necessary or desirable to
enable and permit Exchangeco, in accordance with applicable law, to
pay and otherwise perform its obligations with respect to the
satisfaction of the Liquidation Amount, the Retraction Price or the
Redemption Price in respect of each issued and outstanding
Exchangeable Share upon a Liquidation Distribution, the delivery of
a Retraction Request by a holder of Exchangeable Shares or a
redemption of Exchangeable Shares by Exchangeco, as the case may be,
including, without limitation, all such actions and all such things
as are necessary or desirable to enable and permit Exchangeco to
instruct the Agent to cause the WACI Common Shares to be delivered
directly to the holders of Exchangeable Shares by the Agent in
accordance with the provisions of Section 5, 6 or 7, as the case may
be, of the Share Provisions;
(e) take all such actions and do all such things as are necessary or
desirable to enable and permit it, in accordance with applicable
law, to perform its obligations arising upon the exercise by it of
the Liquidation Call Right, the Retraction Call Right or the
Redemption Call Right including, without limitation, all such
actions and all such things as are necessary or desirable to enable,
permit and instruct the Agent to cause the WACI Common Shares to be
delivered directly to the holders of Exchangeable Shares by the
Agent, in accordance with the provisions of Section 8 of the Share
Provisions; and
(f) not exercise its vote as a direct or indirect shareholder to
initiate the voluntary liquidation, dissolution or winding-up of
Exchangeco nor take any action or omit to take any action that is
designed to result in the liquidation, dissolution or winding-up of
Exchangeco.
(g) For purposes of clarity, it is expressly understood that
notwithstanding anything to the contrary herein, the exercise of any
and all rights of the Vendors pertaining to the delivery of WACI
Common Stock in respect of the exercise of their respective exchange
of Exchangeable Shares shall be executed solely by instruction of
WACI to the Agent for delivery of all such WACI Common Stock to be
made by the Agent out of escrow directly to the respective Vendors
exercising such rights and the execution of such instruction shall
not be construed as a dividend or distribution of Exchangeco assets
or property.
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2.2 Segregation of Funds
WACI will cause Exchangeco (and shall fund Exchangeco to the extent
necessary) to deposit a sufficient amount of funds in a separate account of
Exchangeco and segregate a sufficient amount of such other assets and property
as is necessary to enable Exchangeco to pay dividends when due and to pay or
otherwise satisfy its respective obligations under Sections 5, 6 or 7 of the
Share Provisions, as applicable, and Exchangeco will use such funds or other
assets exclusively to pay such dividends or satisfy its obligations under
Sections 3, 5, 6 or 7 of the Share Provisions.
2.3 Issuance and Custody of WACI Common Shares
WACI hereby represents, warrants and covenants in favour of Exchangeco
that pursuant to the terms of the Voting And Exchange Agency Agreement, dated as
of even date herewith, by and among WACI, Exchangeco and the Agent that WACI has
issued an aggregate of 4,500,000 shares of WACI Common Shares (the "Escrow
Shares") to the custody of such Agent to be held in escrow for the benefit of
each of the Vendors, and WACI undertakes that it shall furthermore, at all times
while any Exchangeable Shares are outstanding, issue to the Agent to supplement
such escrow, such number of additional WACI Common Shares out of its authorized
and unissued capital stock as necessary so that the Agent at all times holds
such number of WACI Common Shares (1) as is equal to the sum of (i) the number
of Exchangeable Shares issued and outstanding from time to time and (ii) the
number of Exchangeable Shares issuable upon the exercise of all rights to
acquire Exchangeable Shares outstanding from time to time (if any) and (2) as
are now and may hereafter be required to enable and permit WACI to meet its
obligations hereunder and under any other security or commitment pursuant to
which WACI may now or hereafter be required to issue WACI Common Shares, to
enable and permit WACI and Exchangeco to meet their respective obligations
hereunder and under the Share Provisions.
2.4 Notification of Certain Events
In order to assist and permit WACI to exercise the Liquidation Call Right,
Retraction Call Right and Redemption Call Right, Exchangeco will notify WACI of
each of the following events at the time set forth below:
(a) in the event of any determination by the Board of Directors of
Exchangeco to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to Exchangeco or to effect any
other distribution of the assets of Exchangeco among its
shareholders for the purpose of winding up its affairs, at least
sixty (60) days prior to the proposed effective date of such
liquidation, dissolution, winding-up or other distribution;
(b) promptly, upon the earlier of receipt by Exchangeco of notice of and
Exchangeco otherwise becoming aware of any threatened or instituted
claim, suit, petition or other proceedings with respect to the
involuntary liquidation, dissolution or winding-up of Exchangeco or
to effect any other distribution of the assets of Exchangeco among
its shareholders for the purpose of winding up its affairs;
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(c) immediately, upon receipt by Exchangeco of a Retraction Request;
(d) on the same date on which notice of redemption is given to holders
of Exchangeable Shares, upon the determination of a Redemption Date
in accordance with the Share Provisions; and
(e) as soon as practicable upon the issuance by Exchangeco of any
Exchangeable Shares or rights to acquire Exchangeable Shares.
2.5 Delivery of WACI Common Shares
Upon any event that requires WACI Common Shares be delivered to any holder
of Exchangeable Shares, and subject to WACI's exercise of the Liquidation Call
Right, the Retraction Call Right or the Redemption Call Right, the Agent shall
forthwith deliver or cause to be delivered the requisite number of WACI Common
Shares to be received by, and issued to or to the order of, the former holder of
the surrendered Exchangeable Shares, as the respective Vendor shall direct. All
such WACI Common Shares shall be duly authorized and validly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance except with respect to restrictions and legends required for
purposes of compliance with U.S. federal securities laws. In consideration of
the issuance and delivery of each such WACI Common Share, Agent shall tender to
WACI, or as WACI shall direct, the Class B shares in the capital of Exchangeco
having equivalent value. .
2.6 Economic Equivalence
(a) WACI will not without the prior approval of Exchangeco and the prior
approval of the holders of the Exchangeable Shares given in
accordance with Section 11 of the Share Provisions:
(i) issue or distribute WACI Common Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire WACI Common Shares) to the holders of all or
substantially all of the then outstanding WACI Common Shares
by way of stock dividend or other distribution, other than an
issue of WACI Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire WACI Common
Shares) to holders of WACI Common Shares who exercise an
option to receive dividends in WACI Common Shares (or
securities exchangeable for or convertible into or carrying
rights to acquire WACI Common Shares) in lieu of receiving
cash dividends; or
(ii) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding WACI
Common Shares entitling them to subscribe for or to purchase
WACI Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire WACI Common
Shares); or
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(iii) issue or distribute to the holders of all or substantially all
of the then outstanding WACI Common Shares (A) shares or
securities of WACI of any class other than WACI Common Shares
(other than shares convertible into or exchangeable for or
carrying rights to acquire WACI Common Shares), (B) rights,
options or warrants other than those referred to in section
2.6(a)(ii) above, (C) evidences of indebtedness of WACI or (D)
assets of WACI,
unless (a) WACI is permitted under applicable law to issue or
distribute the economic equivalent on a per share basis of such
rights, options, securities, shares, evidences of indebtedness or
other assets to holders of the Exchangeable Shares; and (b) the
economic equivalent on a per share basis of such rights, options,
securities, shares, evidences of indebtedness or other assets is
issued or distributed simultaneously to holders of the Exchangeable
Shares; provided that, for greater certainty, the above restrictions
shall not apply to any securities issued or distributed by WACI in
order to give effect to and to consummate the transactions
contemplated by, and in accordance with, the Share Exchange
Agreement, or as otherwise permitted by the parties to the Share
Exchange Agreement.
(b) WACI will not without the prior approval of Exchangeco and the prior
approval of the holders of the Exchangeable Shares given in
accordance with Section 11 of the Share Provisions:
(i) subdivide, redivide or change the then outstanding WACI Common
Shares into a greater number of WACI Common Shares; or
(ii) reduce, combine, consolidate or change the then outstanding
WACI Common Shares into a lesser number of WACI Common Shares;
or
(iii) reclassify or otherwise change WACI Common Shares or effect an
amalgamation, merger, reorganization or other transaction
affecting WACI Common Shares,
unless (a) WACI is permitted under applicable law to issue or
distribute the economic equivalent on a per share basis of such
rights, options, securities, shares, evidences of indebtedness or
other assets to holders of the Exchangeable Shares; and (b) the same
or an economically equivalent change shall simultaneously be made
to, or in the rights of the holders of, the Exchangeable Shares.
(c) WACI will ensure that the record date for any event referred to in
section 2.6(a) or 2.6(b) above, or, if no record date is applicable
for such event, the effective date for any such event, is not less
than ten (10) Business Days after the date on which such event is
declared or announced by WACI (with contemporaneous
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notification thereof by WACI to Exchangeco).
(d) The Board of Directors of WACI shall determine, in good faith and in
its sole discretion acting reasonably (with the assistance of such
reputable and qualified independent financial advisors and/or other
experts as the Board of Directors may determine necessary or
desirable), economic equivalence for the purposes of any event
referred to in section 2.6(a) or 2.6(b) above and each such
determination shall be conclusive and binding on WACI. In making
each such determination, the following factors shall, without
excluding other factors determined by the Board of Directors to be
relevant, be considered by the Board of Directors:
(i) in the case of any stock dividend or other distribution
payable in WACI Common Shares, the number of such shares
issued in proportion to the number of WACI Common Shares
previously outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase WACI Common
Shares (or securities exchangeable for or convertible into or
carrying rights to acquire WACI Common Shares), the
relationship between the exercise price of each such right,
option or warrant and the Current Market Price;
(iii) in the case of the issuance or distribution of any other form
of property (including, without limitation, any shares or
securities of WACI of any class other than WACI Common Shares,
any rights, options or warrants other than those referred to
in section 2.6(d)(ii) above, any evidences of indebtedness of
WACI or any assets of WACI), the relationship between the fair
market value (as determined by the Board of Directors in good
faith acting reasonably) of such property to be issued or
distributed with respect to each outstanding WACI Common Share
and the Current Market Price;
(iv) in the case of any subdivision, redivision or change of the
then outstanding WACI Common Shares into a greater number of
WACI Common Shares or the reduction, combination,
consolidation or change of the then outstanding WACI Common
Shares into a lesser number of WACI Common Shares or any
amalgamation, merger, reorganization or other transaction
affecting WACI Common Shares, the effect thereof upon the then
outstanding WACI Common Shares; and
(v) in all such cases, the general taxation consequences of the
relevant event to holders of Exchangeable Shares to the extent
that such consequences may differ from the taxation
consequences to holders of WACI Common Shares as a result of
differences between taxation laws of Canada and the United
States (except for any differing consequences arising as a
result of differing marginal taxation rates and without regard
to the individual circumstances of holders of Exchangeable
Shares).
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(e) Exchangeco agrees that, to the extent required, upon due notice from
WACI, Exchangeco will use its best efforts to take or cause to be
taken such steps as may be necessary for the purposes of ensuring
that appropriate dividends are paid or other distributions are made
by Exchangeco, or subdivisions, redivisions or changes are made to
the Exchangeable Shares, in order to implement the required economic
equivalent with respect to WACI Common Shares and the Exchangeable
Shares as provided for in this section 2.6.
2.7 Tender Offers
In the event that a tender offer, share exchange offer, issuer bid,
take-over bid or similar transaction with respect to WACI Common Shares (an
"Offer") is proposed by WACI or is proposed to WACI or its shareholders and is
recommended by the Board of Directors of WACI, or is otherwise effected or to be
effected with the consent or approval of the Board of Directors of WACI, and the
Exchangeable Shares are not redeemed by Exchangeco or purchased by WACI as
contemplated by and in compliance with the Share Provisions, then WACI will use
its reasonable efforts expeditiously and in good faith to take all such actions
and do all such things as are necessary or desirable to enable and permit
holders of the Exchangeable Shares to participate in such Offer to the same
extent and on an economically equivalent basis as the holders of WACI Common
Shares, without discrimination. Without limiting the generality of the
foregoing, WACI will use its reasonable efforts expeditiously and in good faith
(in the case of a transaction by WACI or where WACI is a participant in the
negotiation thereof) to ensure that holders of the Exchangeable Shares may
participate in all such Offers without being required to retract the
Exchangeable Shares as against Exchangeco (or, if so required, to ensure that
any such retraction, shall be effective only upon, and shall be conditional
upon, the closing of the Offer and only to the extent necessary to tender or
deposit to the Offer). Nothing herein shall affect the rights of Exchangeco
under the Share Provisions to redeem (or WACI to purchase pursuant to the
Redemption Call Right) the Exchangeable Shares, in the event of a WACI Control
Transaction.
2.8 Ownership of Voting Outstanding Shares of Exchangeco
Without the prior approval of Exchangeco and the prior approval of the
holders of the Exchangeable Shares given in accordance with Section 11 of the
Share Provisions, WACI covenants and agrees in favour of Exchangeco that, as
long as any of the Exchangeable Shares outstanding are owned by any person or
entity other than WACI or any of its Affiliates, WACI will be and shall remain
the direct or indirect beneficial owner of all issued and outstanding voting
shares in the capital of Exchangeco.
2.9 WACI and Affiliates Not to Vote Exchangeable Shares
WACI covenants and agrees that it will appoint and cause to be appointed
proxy holders with respect to all of the Exchangeable Shares held by it and its
Affiliates for the sole purpose of attending each meeting of holders of the
Exchangeable Shares in order to be counted as part of the quorum for each such
meeting. WACI further covenants and agrees that it will not, and will
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cause its Affiliates not to, exercise any voting rights which may be exercisable
by holders of the Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the Act (or any successor or other
corporate statute by which Exchangeco may in the future be governed) with
respect to any of the Exchangeable Shares held by it or by its Affiliates in
respect of any matter considered at any meeting of holders of the Exchangeable
Shares.
2.10 Rule 10b-18 Purchases
For certainty, nothing contained in this Agreement, including without
limitation the obligations of WACI contained in section 2.7 hereof, shall limit
the ability of WACI or Exchangeco to make a "Rule 10b-18 Purchase" of WACI
Common Shares pursuant to Rule 10b-18 of the U.S. Securities Exchange Act of
1934, as amended, or any successor provisions thereof.
2.11 Special WACI Representations and Covenants
(a) Each of WACI and Exchangeco, jointly and severally, represent to the
other such party and all other third party beneficiaries of this Agreement, that
(i) the authorized capital of Exchangeco as of the date hereof is as set forth
on Annex A attached hereto and no change has been made or occurred with respect
to such authorized capital prior to closing of this Agreement; (ii) immediately
prior to issuance of the Exchange Shares, Exchangeco has no issued or
outstanding capital stock other than the Class A shares, all of which are owned
by WACI; (iii) there are no Claims pending or overtly threatened against WACI or
Exchangeco in regard to any prior exchange transaction or any other matters; and
(iv) there are no continuing, residual or future obligations required to be
maintained or performed by Exchangeco with respect to any prior shareholders of
Exchangeco or any prior exchange transaction other than in regard to WACI in its
capacity as the sole holder of all Class A shares of Exchangeco.
(b) WACI undertakes, covenants and agrees that unless and until the first
business day immediately following exchange of all of the Exchangeable Shares:
(i) WACI shall be and remain the sole holder of record of the Class A Shares of
Exchangeco; and (ii) WACI shall be and remain in sole control of Exchangeco.
(c) Each of WACI and Exchangeco covenant and agree that Exchangeco will
not be used for any future transaction unless and until all Exchangeable Shares
have been exchanged and/or the rights of the holders of the Exchangeable Shares
have otherwise terminated in accordance with the Share Provisions.
ARTICLE 3
WACI SUCCESSORS
3.1 Certain Requirements in Respect of Combination, etc.
Except as contemplated in the Share Exchange Agreement, WACI shall not
consummate any transaction (whether by way of reconstruction, reorganization,
consolidation, merger,
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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:
(a) such other person or continuing corporation (the "WACI 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, an
agreement supplemental hereto and such other instruments (if any) as
are reasonably necessary or advisable to evidence the assumption by
the WACI Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such WACI 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 WACI under
this Agreement; and
(b) such transaction shall 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 other
Parties hereunder.
3.2 Vesting of Powers in Successor
Whenever the conditions of section 3.1 have been duly observed and
performed, the Parties, if required by section 3.1, shall execute and deliver a
supplemental agreement hereto and thereupon the WACI Successor shall possess and
from time to time may exercise each and every right and power of WACI under this
Agreement in the name of WACI or otherwise and any act or proceeding by any
provision of this Agreement required to be done or performed by the Board of
Directors of WACI or any officers of WACI may be done and performed with like
force and effect by the directors or officers of such WACI Successor.
3.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger
of any direct or indirect subsidiary of WACI, except for Exchangeco, with or
into WACI or the winding-up, liquidation or dissolution of any direct or
indirect subsidiary of WACI, except for Exchangeco, provided that all of the
assets of such subsidiary are transferred to WACI or another wholly-owned direct
or indirect subsidiary of WACI and any such transactions are expressly permitted
by this Article 3. Nothing herein shall be construed as preventing the sale of
any direct or indirect subsidiary of WACI contemplated in the Share Exchange
Agreement.
ARTICLE 4
GENERAL
4.1 Term
This Agreement shall come into force and be effective as of the date
hereof and shall terminate and be of no further force and effect at such time as
no Exchangeable Shares (or securities or rights convertible into or exchangeable
for or carrying rights to acquire
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Exchangeable Shares) are held by any person or entity other than WACI and any of
its Affiliates.
4.2 Changes in Capital of WACI and Exchangeco
At all times after the occurrence of any event contemplated pursuant to
sections 2.6 and 2.7 hereof 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 the 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 an agreement in
writing giving effect to and evidencing such necessary amendments and
modifications.
4.3 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 this
Agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
4.4 Amendments and Modifications
This Agreement may not be amended or modified except by an agreement in
writing executed by WACI and Exchangeco and, subject to section 4.5 hereof, with
the approval of the holders of Exchangeable Shares (or their duly appointed
attorney or agent) obtained in accordance with section 11 of the Share
Provisions.
4.5 Administrative Amendments
Notwithstanding the provisions of section 4.4 hereof, the Parties to this
Agreement may in writing at any time and from time to time, without the approval
of the holders of the Exchangeable Shares, amend or modify this Agreement for
the purposes of:
(a) adding to the covenants of WACI and Exchangeco, provided that the
Board of Directors of each of WACI and Exchangeco shall be of the
good faith and reasonable opinion that such additions will not be
prejudicial to the rights or interests of the holders of the
Exchangeable Shares;
(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 WACI and Exchangeco, it may be expedient to
make, provided that each such Board of Directors shall be of the
good faith and reasonable opinion that such amendments or
modifications will not be prejudicial to the rights or interests of
the holders of the Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of counsel
to WACI and
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Exchangeco 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 Board of Directors
of each of WACI and Exchangeco shall be of the good faith and
reasonable opinion that such changes or corrections will not be
prejudicial to the rights or interests of the holders of the
Exchangeable Shares.
4.6 Meeting to Consider Amendments
Exchangeco, at the request of WACI, shall call a meeting or meetings of
the holders of the Exchangeable Shares for the purpose of considering any
proposed amendment or modification requiring approval pursuant to section 4.4
hereof. Any such meeting or meetings shall be called and held in accordance with
the bylaws of Exchangeco, the Share Provisions and all applicable laws.
4.7 Enforceability and Enurement
This Agreement shall be binding upon and enure to the benefit of the
Parties hereto and their respective successors and assigns. This Agreement has
been incorporated by reference into the Share Exchange Agreement and the
Vendors, jointly and severally, are each an express third-party beneficiary of
this Agreement and as such have any and all rights of direct rights of
enforcement of this Agreement to the same and full extent as if a signatory
party hereto.
4.8 Notices to Parties
All notices, requests, demands and other communications hereunder must be
made in writing and will be deemed to have been duly given if delivered
personally or by courier to the addressee at the address appearing on the first
page hereof or to such other address as may be given in writing by the Party.
Any notice given by personal delivery shall be deemed to be received on the date
of delivery. Any notice sent by courier shall be deemed to be received on the
next Business Day following the deposit of the communication with the courier
service.
4.9 Counterparts and Facsimile
This Agreement may be executed in counterparts by original or facsimile
signature, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
4.10 Governing Law
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Nevada without giving effect to provisions of conflicts of
law thereto. Each Party irrevocably submits to the non-exclusive jurisdiction of
the courts of the Province of Ontario with respect to any matter arising
hereunder or related hereto.
[Signature Page Follows]
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IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed as
of the date first above written.
WIRELESS AGE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
1588102 ONTARIO INC.
By: /s/ Xxxx Xxxxxxxx
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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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Support Agreement
SCHEDULE "A"
The Class B shares of 1588102 Ontario Inc. (the "Corporation") shall have
attached thereto, as a class, the following rights, privileges, restrictions,
and conditions:
SECTION 1
INTERPRETATION
1.1 For the purposes of these Share Provisions:
(a) "Act" means the Business Corporations Act (Ontario), as amended.
(b) "Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common 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.
(c) "Board of Directors" means the board of directors of the Corporation.
(d) "Bulletin Board" means the Over-the-Counter Bulletin Board, an
over-the-counter securities market operated by the National Association of
Securities Dealers.
(e) "Business Day" means any day on which commercial banks are open for
business in the Province of Ontario other than a Saturday, a Sunday or a
day observed as a holiday under the laws of the Province of Ontario or the
federal laws of Canada.
(f) "Canadian Dollar Equivalent" means in respect of an amount expressed in a
foreign currency (the "Foreign Currency Amount") at any date the product
obtained by multiplying:
(i) the Foreign Currency Amount by,
(ii) the noon spot exchange rate on such date for such foreign currency
expressed in Canadian dollars as reported by the Bank of Canada or,
in the event such spot exchange rate is not available, such spot
exchange rate on such date for such foreign currency expressed in
Canadian dollars as may be deemed by the Board of Directors, acting
reasonably to be appropriate for such purpose.
(g) "Common Shares" means Class A shares in the capital of the Corporation.
(h) "Current Market Price" means the Canadian Dollar Equivalent of the average
of the closing bid and ask prices of a WACI Common Share during a period
of twenty (20) consecutive trading days ending not more than three (3)
trading days before such date on
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Support Agreement
the Bulletin Board, or if the WACI Shares are no longer quoted on the
Bulletin Board, then on such other stock exchange or automated quotation
system on which the WACI Common Shares are listed or quoted, as the case
may be, as may be selected by the Board of Directors for such purpose;
provided, however, that if, in the opinion of the Board of Directors, the
public distribution or trading activity of WACI Common Shares during such
period does not create a market which reflects the fair market value of a
WACI Common Share, then the Current Market Price of a WACI Common Share
shall be determined by the Board of Directors, in good faith and acting
reasonably, based upon the advice of such qualified independent financial
advisors as the Board of Directors may deem appropriate, and in its sole
discretion, and provided further that any such selection, opinion or
determination by the Board of Directors shall be conclusive and binding.
(i) "Exchange Right" has the meaning ascribed thereto in section 6.6 of these
Share Provisions.
(j) "Exchangeable Shares" means the Class B shares in the capital of the
Corporation, being non-voting exchangeable shares having the rights,
privileges, restrictions, and conditions set forth herein.
(k) "Exchangeable Share Voting Event" means any matter in respect of which
holders of Exchangeable Shares are entitled to vote as shareholders of the
Corporation, other than an Exempt Exchangeable Share Voting Event.
(l) "Exempt Exchangeable Share Voting Event" means any matter in respect of
which holders of Exchangeable Shares are entitled to vote as shareholders
of the Corporation in order to approve any change to, or in the rights of
the holders of, the Exchangeable Shares, where the approval or
disapproval, as applicable, of such change would be required to maintain
the equivalence of the Exchangeable Shares and the WACI Common Shares.
(m) "Liquidation Amount" has the meaning ascribed thereto in section 5.1 of
these Share Provisions.
(n) "Liquidation Call Purchase Price" has the meaning ascribed thereto in
section 8.1(a) of these Share Provisions.
(o) "Liquidation Call Right" has the meaning ascribed thereto in section
8.1(a) of these Share Provisions.
(p) "Liquidation Date" has the meaning ascribed thereto in section 5.1 of
these Share Provisions.
(q) "Liquidation Distribution" means a distribution of assets of the
Corporation among its shareholders arising on the liquidation,
dissolution, or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation
among its shareholders for the purpose of winding-up its affairs.
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(r) "Person" includes any individual, firm, partnership, joint venture,
venture capital fund, association, trust, agent, executor, administrator,
legal personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, government body, syndicate or
other entity, whether or not having legal status.
(s) "Purchase Price" has the meaning ascribed thereto in section 6.3 of these
Share Provisions.
(t) "Redemption Call Purchase Price" has the meaning ascribed thereto in
section 8.2 of these Share Provisions.
(u) "Redemption Call Right" has the meaning ascribed thereto by section 8.2 of
these Share Provisions.
(v) "Redemption Date" means the date, established by the Board of Directors
for the redemption by the Corporation of all but not less than all of the
outstanding Exchangeable Shares pursuant to section 7 of these Share
Provisions, which date shall be the fifth anniversary of the date of
issuance of the Exchangeable Shares, unless:
(i) the number of Exchangeable Shares outstanding (other than
Exchangeable Shares held by WACI and its Affiliates, and as such
number of shares may be adjusted as deemed appropriate by the Board
of Directors to give effect to any subdivision or consolidation of
or stock dividend on the Exchangeable Shares, any issue or
distribution of rights to acquire Exchangeable Shares or securities
exchangeable for or convertible into Exchangeable Shares, any issue
or distribution of other securities or rights or evidences of
indebtedness or assets, or any other capital reorganization or other
transaction affecting the Exchangeable Shares) is less than 10% of
the number of Exchangeable Shares issued upon the first issuance of
Exchangeable Shares, in which case the Board of Directors may
accelerate such redemption date to such earlier date as it may
determine, upon at least sixty (60) days' prior written notice to
the registered holders of the Exchangeable Shares;
(ii) a WACI Control Transaction occurs, in which case, provided that the
Board of Directors determines, in good faith and in its sole
discretion, that it is not reasonably practicable to substantially
replicate the terms and conditions of the Exchangeable Shares in
connection with such WACI Control Transaction and that the
redemption of all but not less than all of the outstanding
Exchangeable Shares is necessary to enable the completion of such
WACI Control Transaction in accordance with its terms, the Board of
Directors may accelerate such redemption date to such earlier date
as it may determine, upon such number of days prior written notice
to the registered holders of the Exchangeable Shares as the Board of
Directors may determine to be reasonably practicable in such
circumstances;
(iii) an Exchangeable Share Voting Event is proposed, in which case, the
redemption date shall be the Business Day prior to the record date
for any meeting or vote of
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the holders of the Exchangeable Shares to consider the Exchangeable
Share Voting Event and the Board of Directors shall give such number
of days' prior written notice of such redemption to the registered
holders of the Exchangeable Shares as the Board of Directors may
determine to be reasonably practicable in such circumstances
(provided that the Board of Directors has determined, in good faith
and in its sole discretion, that it is not reasonably practicable to
accomplish the business purpose intended by the Exchangeable Share
Voting Event, which business purpose must be bona fide and not for
the primary purpose of causing the occurrence of a Redemption Date,
in any other commercially reasonable manner that does not result in
an Exchangeable Share Voting Event);
(iv) an Exempt Exchangeable Share Voting Event is proposed and the
holders of the Exchangeable Shares fail to take the necessary action
at a meeting or other vote of holders of Exchangeable Shares to
approve the Exempt Exchangeable Share Voting Event, in which case
the redemption date shall be the Business Day following the day on
which the holders of the Exchangeable Shares failed to take such
action and the Board of Directors shall be deemed to have given such
prior written notice of such redemption to the registered holders of
the Exchangeable Shares or the Board of Directors may establish
another Business Day as it may determine to be reasonably
practicable in such circumstances,
provided, however, that the accidental failure or omission to give any
notice of redemption under clauses (i), (ii), (iii) or (iv) above to less
than 10% of such holders of Exchangeable Shares shall not affect the
validity of any such redemption.
(w) "Redemption Price" has the meaning ascribed thereto in section 7.1 of
these Share Provisions.
(x) "Retracted Shares" has the meaning ascribed thereto in section 6.1(a) of
these Share Provisions.
(y) "Retraction Call Right" has the meaning ascribed thereto in section 6.1(c)
of these Share Provisions.
(z) "Retraction Date" has the meaning ascribed thereto in section 6.1(b) of
these Share Provisions.
(aa) "Retraction Price" has the meaning ascribed thereto in section 6.1 of
these Share Provisions.
(bb) "Retraction Request" has the meaning ascribed thereto in section 6.1 of
these Share Provisions.
(cc) "Share Provisions" means these share provisions.
(dd) "Support Agreement" means the exchangeable share support agreement between
WACI
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Support Agreement
and the Corporation entered into in support of the holders of Exchangeable
Shares.
(ee) "Transfer Agent" means such Person as may from time to time be appointed
by the Corporation as the registrar and transfer agent for the
Exchangeable Shares, and if no such Person has been appointed, shall mean
the Corporation.
(ff) "Unpaid Dividend Amount" means the full amount of any and all declared and
unpaid dividends on the Exchangeable Shares.
(gg) "WACI" means Wireless Age Communications Inc., a corporation existing
under the laws of the State of Nevada, and any successor corporation
thereto.
(hh) "WACI Call Notice" has the meaning ascribed thereto in section 6.3 of
these Share Provisions.
(ii) "WACI Common Shares" means the shares of common stock in the capital of
WACI, as consolidated or subdivided from time to time, and any other
securities into which such shares may be reclassified or changed.
(jj) "WACI Control Transaction" means any merger, amalgamation, tender offer,
material sale of shares or rights or interests therein or thereto, or a
sale of all or substantially all of the assets of WACI, or similar
transactions involving WACI, or any proposal to do so, in any arms length
transaction.
(kk) "WACI Dividend Declaration Date" means the date on which the Board of
Directors of WACI declares any dividend on the WACI Common Shares.
SECTION 2
RANKING OF EXCHANGEABLE SHARES
2.1 The Exchangeable Shares shall be entitled to a preference over the Common
Shares and any other shares of the Corporation with respect to the payment of
dividends and on a Liquidation Distribution to the extent provided for in
section 5 hereof.
SECTION 3
DIVIDENDS
3.1 (a) The Board of Directors shall, subject to applicable law, on each WACI
Dividend Declaration Date, declare a dividend on each Exchangeable Share as
follows:
(i) in the case of a cash dividend declared on the WACI Common
Shares, a cash dividend in U.S. dollars, or the Canadian
Dollar Equivalent thereof, on the WACI Dividend Declaration
Date, equal to the cash dividend declared on each WACI Common
Share;
(ii) in the case of a dividend declared on the WACI Common Shares
in
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Support Agreement
property other than cash or WACI Common Shares, a dividend in
such type and amount of property for each Exchangeable Share
as is the same as or economically equivalent to the type and
amount of property declared as a dividend on each WACI Common
Share (to be determined by the Board of Directors as
contemplated by section 3.5 hereof); and
(iii) Such dividends shall be paid out of money, assets or property
of the Corporation properly applicable to the payment of
dividends, or out of authorized but unissued Exchangeable
Shares of the Corporation, as applicable.
(b) In the case of a stock dividend or other distribution declared on the
WACI Common Shares to be paid in WACI Common Shares, a supplemental amount of
WACI stock shall be issued to the Agent for each Exchangeable Share as is equal
to the number of WACI Common Shares to be paid on each WACI Common Share. For
purposes of clarity, such supplements of WACI Common Shares to be paid to the
Agent shall not be construed as dividends of Exchangeco.
3.2 Cheques of the Corporation payable at par at any branch of the bankers of
the Corporation shall be issued in respect of any cash dividends contemplated by
section 3.1(a) hereof and the sending of such a cheque to each holder of an
Exchangeable Share shall satisfy the cash dividend represented thereby unless
the cheque is not paid on presentation. Certificates registered in the name of
the Agent shall be issued or transferred in respect of any WACI stock dividends
contemplated by section 3.1(b) hereof and the sending of such a certificate to
the Agent with notice to each holder of an Exchangeable Share, which shall
satisfy the WACI stock dividend represented thereby. Such other type and amount
of property in respect of any dividends contemplated by section 3.1 hereof shall
be issued, distributed or transferred by the Corporation in such manner as it
shall determine and the issuance, distribution or transfer thereof by the
Corporation to each holder of an Exchangeable Share shall satisfy the dividend
represented thereby, provided, however, that no such dividend and/or
distribution shall be constituted of WACI Common Shares, all of which shall be
delivered by WACI directly to the Agent. No holder of an Exchangeable Share
shall be entitled to recover by action or other legal process against the
Corporation any dividend that is represented by a cheque that has not been duly
presented to the Corporation's bankers for payment or that otherwise remains
unclaimed for a period of six years from the date on which such dividend was
payable.
3.3 The record date for the determination of the holders of Exchangeable Shares
entitled to receive payment of, and the payment date for, any dividend declared
on the Exchangeable Shares under section 3.1 hereof shall be the same dates as
the record date and payment date, respectively, for the corresponding dividend
declared on the WACI Common Shares.
3.4 If on any payment date for any dividends declared on the Exchangeable Shares
under section 3.1 hereof the dividends are not paid in full on all of the
Exchangeable Shares then outstanding, any such dividends that remain unpaid
shall be paid on a subsequent date or dates determined by the Board of Directors
on which the Corporation shall have sufficient moneys, assets or property
properly applicable to the payment of such dividends.
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Support Agreement
3.5 The Board of Directors shall determine, in good faith and in its sole
discretion, acting reasonably (with the assistance of such reputable and
qualified independent financial advisors and/or other experts as the Board of
Directors may determine necessary or desirable) economic equivalence for the
purposes of section 3.1(c) hereof, and each such determination shall be
conclusive and binding on the Corporation and its shareholders absent manifest
error. In making each such determination, the following factors shall, without
excluding other factors determined by the Board of Directors to be relevant, be
considered by the Board of Directors, and shall be acted upon in accordance with
the provisions herewith:
(a) in the case of any stock dividend or other distribution payable to
the Agent in WACI Common Shares, the number of such shares issued in
proportion to the number of WACI Common Shares previously
outstanding, and all such issuances and distributions in respect of
the Exchangeable Shares shall be made solely by WACI directly to the
Agent;
(b) in the case of the issuance or distribution of any rights, options
or warrants to subscribe for or purchase WACI Common Shares (or
securities exchangeable for or convertible into or carrying rights
to acquire WACI Common Shares), the relationship between the
exercise price of each such right, option or warrant and the Current
Market Price, and all such issuances and distributions constituting
a security of WACI shall in respect of the Exchangeable Shares be
made solely by WACI directly to the Agent;
(c) in the case of the issuance or distribution of any other form of
property (including, without limitation, any shares or securities of
WACI of any class other than WACI Common Shares, any rights, options
or warrants other than those referred to in section 3.5(a) above,
any evidences of indebtedness of WACI or any assets of WACI), the
relationship between the fair market value (as determined by the
Board of Directors in good faith acting reasonably) of such property
to be issued or distributed with respect to each outstanding WACI
Common Share and the Current Market Price, and all such issuances
and distributions constituting a security of WACI shall in respect
of the Exchangeable Shares be made solely by WACI directly to the
Agent;
(d) in the case of any subdivision, re-division or change of the then
outstanding WACI Common Shares into a greater number of WACI Common
Shares or the reduction, combination or consolidation or change of
the then outstanding WACI Common Shares into a lesser number of WACI
Common Shares or any amalgamation, merger, reorganization or other
transaction effecting the WACI Common Shares, the effect thereof on
the then outstanding shares of WACI Common Shares; and
(e) in all such cases, the general taxation consequences of the relevant
event to holders of Exchangeable Shares to the extent that such
consequences may differ from the taxation consequences to holders of
WACI Common Shares as a result of differences between taxation laws
of Canada and the United States of America (except for any differing
consequences arising as a result of differing marginal taxation
rates and without regard to the individual circumstances of holders
of Exchangeable Shares).
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Support Agreement
SECTION 4
CERTAIN RESTRICTIONS
4.1 So long as any of the Exchangeable Shares are outstanding, the Corporation
shall not at any time without the approval of the holders of the Exchangeable
Shares given as specified in section 11.2 of these Share Provisions:
(a) pay any dividends on the Common Shares or any shares other than the
Exchangeable Shares, other than stock dividends payable in Common Shares
or any such other shares ranking junior to the Exchangeable Shares, as the
case may be;
(b) redeem or purchase or make any capital distribution in respect of Common
Shares or any shares other than the Exchangeable Shares;
(c) redeem or purchase any shares of the Corporation other than the
Exchangeable Shares; or
(d) issue any Exchangeable Shares or any other shares of the Corporation other
than by way of stock dividends to the holders of such Exchangeable Shares.
SECTION 5
DISTRIBUTION ON LIQUIDATION
5.1 In the event of a Liquidation Distribution, a holder of Exchangeable Shares
shall be entitled, subject to applicable law, to receive from the assets of the
Corporation in respect of each Exchangeable Share held by such holder on the
effective date (the "Liquidation Date") of the Liquidation Distribution, before
any distribution of any part of the assets of the Corporation among the holders
of the Common Shares or any other shares of the Corporation, an amount per
Exchangeable Share (the "Liquidation Amount") equal to (i) the Current Market
Price of a WACI Common Share on the last Business Day prior to the Liquidation
Date (which may be satisfied in full by the Corporation causing an instruction
to be given to the Agent to disburse, in respect of each Exchangeable Share held
by each respective holder thereof, one WACI Common Share, and obtaining written
confirmation of such disbursement by the Agent), plus (ii) the Unpaid Dividend
Amount, if any, on any Exchangeable Share held by such holder on any dividend
record date which occurred prior to the Liquidation Date.
5.2 WACI shall notify all holders of the Exchangeable Shares, of any proposed
liquidation, dissolution or winding-up of the Corporation, at least 60 days
before the Liquidation Date in the case of a voluntary liquidation, dissolution
or winding-up of the Corporation, and promptly upon receiving notice of or
becoming aware of any claim, suit, petition or other proceeding with respect to
an involuntary liquidation, dissolution or winding-up of the Corporation.
5.3 On or promptly after the Liquidation Date, and subject to the exercise by
WACI of the Liquidation Call Right, the Corporation shall issue an instruction
to WACI and to the Agent to cause to be delivered to the holders of the
Exchangeable Shares the Liquidation Amount for each such Exchangeable Share upon
presentation and surrender of the certificates representing such
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Exchangeable Shares, together with such other documents and instruments as may
be required to effect a transfer of Exchangeable Shares under the Act and the
articles and by-laws of the Corporation and such additional documents and
instruments as the Agent and Transfer Agent may reasonably require, at the
registered office of WACI or at any office of the Agent or Transfer Agent as may
be specified by the Corporation by notice to the holders of the Exchangeable
Shares. Payment of the total Liquidation Amount for such Exchangeable Shares
shall be made by delivery to each holder, at the address of the holder recorded
in the securities register of the Corporation for the Exchangeable Shares or by
holding for pick-up by the holder at the registered office of WACI or at any
office of the Agent or Transfer Agent as may be specified by the Corporation by
notice to the holders of Exchangeable Shares, of the certificates representing
WACI Common Shares (which shares shall be duly issued as fully paid and non-
assessable and shall be free and clear of any lien, claim or encumbrance except
with respect to restrictions and legends required for purposes of compliance
with U.S. federal securities laws) and a cheque of the Corporation payable at
par at any branch of the bankers of the Corporation in respect of the remaining
portion, if any, of the total Liquidation Amount (in each case less any amounts
withheld on account of tax required to be deducted and withheld therefrom). On
and after the Liquidation Date, the holders of the Exchangeable Shares shall
cease to be holders of such Exchangeable Shares and shall not be entitled to
exercise any of the rights of holders in respect thereof, other than the right
to receive their proportionate part of the total Liquidation Amount, unless
payment of the total Liquidation Amount for such Exchangeable Shares shall not
be made upon presentation and surrender of share certificates in accordance with
the foregoing provisions, in which case the rights of the holders shall remain
unaffected until the total Liquidation Amount has been paid in the manner
hereinbefore provided. The Corporation shall have the right at any time after
the Liquidation Date to deposit or cause to be deposited the total Liquidation
Amount in respect of the Exchangeable Shares represented by certificates that
have not at the Liquidation Date been surrendered by the holders thereof in a
custodial account with any chartered bank or trust company in Canada less any
amounts withheld on account of tax required to be deducted and withheld
therefrom. Upon such deposit being made, the rights of the holders of
Exchangeable Shares after such deposit shall be limited to receiving their
proportionate part of the total Liquidation Amount (in each case less such
amounts withheld on account of tax required to be deducted and withheld
therefrom) for such Exchangeable Shares so deposited, against presentation and
surrender of the said certificates held by them, respectively, in accordance
with the foregoing provisions. Upon such payment or deposit of the total
Liquidation Amount, the holders of the Exchangeable Shares shall thereafter be
considered and deemed for all purposes to be holders of the WACI Common Shares
delivered to them or the custodian on their behalf.
5.4 After the Corporation has satisfied its obligations to pay the holders of
the Exchangeable Shares the Liquidation Amount per Exchangeable Share pursuant
to section 5.1 of these Share Provisions, such holders shall not be entitled to
share in any further distribution of the assets of the Corporation.
SECTION 6
RETRACTION OF EXCHANGEABLE SHARES BY HOLDER
6.1 A holder of Exchangeable Shares shall be entitled at any time, subject to
the exercise by
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WACI of the Retraction Call Right and otherwise upon compliance with the
provisions of this section 6, to require the Corporation to redeem any or all of
the Exchangeable Shares registered in the name of such holder for an amount per
Exchangeable Share (the "Retraction Price") equal to (i) the Current Market
Price of a WACI Common Share on the last Business Day prior to the Retraction
Date (which may be satisfied in full by the Corporation causing an instruction
to be given to the Agent to disburse from escrow, in respect of each
Exchangeable Share held by each respective holder thereof, one WACI Common
Share, and obtaining written confirmation of such disbursement by the Agent),
plus (ii) the Unpaid Dividend Amount, if any, on any such Exchangeable Share
held by such holder on any dividend record date which occurred prior to the
Retraction Date. To effect such redemption, the holder shall present and
surrender at the registered office of WACI or at any office of the Agent or
Transfer Agent as may be specified by the Corporation by notice to the holders
of Exchangeable Shares the certificate or certificates representing the
Exchangeable Shares which the holder desires to have the Corporation redeem,
together with such other documents and instruments as may be required to effect
a transfer of Exchangeable Shares under the Act and the articles and by-laws of
the Corporation and such additional documents and instruments as the Agent and
Transfer Agent may reasonably require, and together with a duly executed
statement (the "Retraction Request") in the form attached hereto as Appendix 1,
or in such other form as may be acceptable to the Corporation:
(a) specifying that the holder desires to have all or any number specified
therein of the Exchangeable Shares represented by such certificate or
certificates (the "Retracted Shares") redeemed by the Corporation;
(b) stating the Business Day on which the holder desires to have the
Corporation redeem the Retracted Shares (the "Retraction Date"), provided
that the Retraction Date shall be not less than 10 Business Days nor more
than 15 Business Days after the date on which the Retraction Request is
delivered to the Corporation and further provided that, in the event that
no such Business Day is specified by the holder in the Retraction Request,
the Retraction Date shall be deemed to be the 15th Business Day after the
date on which the Retraction Request is delivered to the Corporation; and
(c) acknowledging the overriding right of WACI (the "Retraction Call Right")
to purchase all but not less than all the Retracted Shares directly from
the holder, and that the Retraction Request shall be deemed to be a
revocable offer by the holder to sell the Retracted Shares to WACI in
accordance with the Retraction Call Right on the terms and conditions set
out in section 6.3 hereof.
6.2 Subject to the exercise of the Retraction Call Right by WACI, upon receipt
by the Corporation or the Agent or Transfer Agent in the manner specified in
section 6.1 hereof of a certificate or certificates representing the number of
Exchangeable Shares which the holder desires to have the Corporation redeem,
together with a Retraction Request, and provided that the Retraction Request is
not revoked by the holder in the manner specified in section 6.7 hereof, the
Corporation shall redeem the Retracted Shares effective at the close of business
(Toronto time) on the Retraction Date and shall cause to be delivered to such
holder the total Retraction Price with respect to such shares, provided that all
declared and unpaid dividends for which the record date has occurred prior to
the Retraction Date shall be paid on the payment date for such
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dividends, less any amounts withheld on account of tax required to be deducted
and withheld therefrom. If only a part of the Exchangeable Shares represented by
any certificate is redeemed, a new certificate for the balance of such
Exchangeable Shares shall be issued to the holder at the expense of the
Corporation.
6.3 Upon receipt by the Corporation of a Retraction Request, the Corporation
shall immediately provide notice thereof to WACI. In order to exercise the
Retraction Call Right, WACI must notify the Corporation of its determination to
do so (the "WACI Call Notice") within five (5) Business Days of notification to
WACI by the Corporation of the receipt by the Corporation of the Retraction
Request. If WACI does not so notify the Corporation within such five Business
Day period, the Corporation will notify the holder as soon as possible
thereafter that WACI will not exercise the Retraction Call Right. If WACI
delivers the WACI Call Notice within such five Business Day period, and provided
that the Retraction Request is not revoked by the holder in the manner specified
in section 6.7, the Retraction Request shall thereupon be deemed to be an offer
by the holder to sell the Retracted Shares to WACI in accordance with the
Retraction Call Right. In such event, the Corporation shall not redeem the
Retracted Shares and WACI shall purchase from such holder and such holder shall
sell to WACI on the Retraction Date the Retracted Shares for an amount per
Retracted Share (the "Purchase Price") equal to (i) the Current Market Price of
a WACI Common Share on the last Business Day prior to the Retraction Date (which
may be satisfied in full by WACI instructing the Agent to deliver to such holder
one WACI Common Share for each Exchangeable Share presented and surrendered by
the holder), plus (ii) the Unpaid Dividend Amount, if any, on those Retracted
Shares held by such holder on any dividend record date which occurred prior to
the Retraction Date. For the purposes of completing a purchase pursuant to the
Retraction Call Right, in addition to giving instructions to the Agent, WACI
shall deposit with the Agent a cheque or cheques of WACI payable at par at any
branch of the bankers of WACI representing the Unpaid Dividend Amount, if any,
less any amounts withheld on account of tax required to be deducted and withheld
therefrom. Provided that WACI has complied with the immediately preceding
sentence, the closing of the purchase and sale of the Retracted Shares pursuant
to the Retraction Call Right shall be deemed to have occurred as at the close of
business on the Retraction Date and, for greater certainty, no redemption by the
Corporation of such Retracted Shares shall take place on the Retraction Date. In
the event that WACI does not deliver a WACI Call Notice within such five
Business Day period, and provided that the Retraction Request is not revoked by
the holder in the manner specified in section 6.7 hereof, the Corporation shall
redeem the Retracted Shares on the Retraction Date and in the manner otherwise
contemplated in this section 6.
6.4 The Corporation or WACI, as the case may be, shall instruct the Agent to
deliver, to the relevant holder, at the address of the holder recorded in the
securities register of the Corporation for the Exchangeable Shares or at the
address specified in the holder's Retraction Request or by holding for pick-up
by the holder at the registered office of WACI or at any office of the Agent or
Transfer Agent as may be specified by the Corporation by notice to the holders
of Exchangeable Shares, certificates representing the WACI Common Shares (which
shares shall be duly issued as fully paid and non-assessable and shall be free
and clear of any lien, claim or encumbrance except with respect to restrictions
and legends required for purposes of compliance with U.S. federal securities
laws) registered in the name of the holder or in such other name as the holder
may request, and, if applicable and on or before the payment date therefore, a
cheque
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payable at par at any branch of the bankers of the Corporation or WACI, as
applicable, representing the aggregate Unpaid Dividend Amount, if any, in
payment of the total Retraction Price or the total Purchase Price, as the case
may be, in each case less any amounts withheld on account of tax required to be
deducted and withheld therefrom, and such delivery of such certificates by the
Agent and cheques on behalf of the Corporation or by WACI, as the case may be,
or by the Agent or Transfer Agent, shall be deemed to be payment of and shall
satisfy and discharge all liability for the total Retraction Price or the total
Purchase Price, as the case may be, to the extent that the same is represented
by such share certificates and cheques (plus any tax deducted and withheld
therefrom).
6.5 On and after the close of business on the Retraction Date, the holder of the
Retracted Shares shall cease to be a holder of such Retracted 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 Retraction
Price or the total Purchase Price, as the case may be, unless upon presentation
and surrender of certificates in accordance with the foregoing provisions,
payment of the total Retraction Price or the total Purchase Price, as the case
may be, shall not be made as provided in section 6.4, in which case the rights
of such holder shall remain unaffected until the total Retraction Price or the
total Purchase Price, as the case may be, has been paid in the manner
hereinbefore provided. On and after the close of business on the Retraction
Date, provided that presentation and surrender of certificates and payment of
the total Retraction Price or the total Purchase Price, as the case may be, has
been made in accordance with the foregoing provisions, the holder of the
Retracted Shares so redeemed by the Corporation shall thereafter be considered
and deemed for all purposes to be a holder of the WACI Common Shares so
delivered.
6.6 Notwithstanding any other provision of this section 6, the Corporation shall
not be obligated to redeem Retracted Shares specified by a holder in a
Retraction Request to the extent that such redemption of Retracted Shares would
be contrary to solvency requirements or other provisions of applicable law. If
the Corporation believes that on any Retraction Date it would not be permitted
by any of such provisions to redeem the Retracted Shares tendered for redemption
on such date, and provided that WACI shall not have exercised the Retraction
Call Right with respect to the Retracted Shares, the Corporation shall only be
obligated to redeem Retracted Shares specified by a holder in a Retraction
Request to the extent of the maximum number that may be so redeemed (rounded
down to a whole number of shares) as would not be contrary to such provisions
and shall notify the holder at least two Business Days prior to the Retraction
Date as to the number of Retracted Shares which will not be redeemed by the
Corporation. In any case in which the redemption by the Corporation of Retracted
Shares would be contrary to solvency requirements or other provisions of
applicable law, the Corporation shall redeem the maximum number of Retracted
Shares in accordance with section 6.2 of these Share provisions which the Board
of Directors determine the Corporation is, on the Retraction Date, permitted to
redeem, on a pro rata basis (disregarding fractions) in proportion to the total
number of Exchangeable Shares tendered for retraction by each holder thereof,
and the Corporation shall issue to each holder of Retracted Shares a new
certificate, at the expense of the Corporation, representing the Retracted
Shares not redeemed by the Corporation pursuant to section 6.2 hereof. Provided
that the Retraction Request is not revoked by the holder in the manner specified
in section 6.7 hereof, the holder of any such Retracted Shares not redeemed by
the Corporation pursuant to section 6.2 hereof as a result of solvency
requirements or other
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provisions of applicable law shall be deemed by giving the Retraction Request to
require WACI to purchase such Retracted Shares from such holder on the
Retraction Date or as soon as practicable thereafter on payment by WACI to such
holder of the Purchase Price for such Retracted Share (the "Exchange Right").
6.7 A holder of Retracted Shares may, by notice in writing given by the holder
to the Corporation before the close of business on the Business Day immediately
preceding the Retraction Date, withdraw the Retraction Request, in which event
such Retraction Request shall be null and void and, for greater certainty, the
revocable offer constituted by the Retraction Request to sell the Retracted
Shares to the Corporation or WACI, as the case may be, shall be deemed to have
been revoked.
SECTION 7
REDEMPTION OF EXCHANGEABLE SHARES BY THE CORPORATION
7.1 Subject to applicable law, and provided WACI has not exercised the
Redemption Call Right, the Corporation shall on the Redemption Date redeem all
but not less than all of the then outstanding Exchangeable Shares for an amount
per Exchangeable Share (the "Redemption Price") equal to (i) the Current Market
Price of a WACI Common Share on the last Business Day prior to the Redemption
Date (which may be satisfied in full by the Corporation causing an instruction
to be given to the Agent to disburse, in respect of each Exchangeable Share held
by each respective holder thereof, one WACI Common Share, and obtaining written
confirmation of such disbursement by the Agent), plus (ii) the Unpaid Dividend
Amount, if any, on each such Exchangeable Share held by such holder on any
dividend record date which occurred prior to the Redemption Date.
7.2 In any case of a redemption of Exchangeable Shares under this section 7, the
Corporation shall send or cause to be sent to each holder of Exchangeable Shares
a notice in writing of the redemption by the Corporation or the purchase by WACI
under the Redemption Call Right, as the case may be, of the Exchangeable Shares
held by such holder. In the case of a Redemption Date established in connection
with a WACI Control Transaction, an Exchangeable Share Voting Event and an
Exempt Exchangeable Share Voting Event, the written notice of redemption by the
Corporation or the purchase by WACI under the Redemption Call Right will be sent
on or before the Redemption Date, on as many days prior written notice as may be
determined by the Board of Directors of the Corporation to be reasonably
practicable in the circumstances, and in all other cases such notice shall be
sent at least 60 days before the Redemption Date. In any such case, such notice
shall set out the formula for determining the Redemption Price or the Redemption
Call Purchase Price, as the case may be, the Redemption Date and, if applicable,
particulars of the Redemption Call Right.
7.3 On or after the Redemption Date and subject to the exercise by WACI of the
Redemption Call Right, the Corporation shall cause to be delivered to the
holders of the Exchangeable Shares to be redeemed the Redemption Price for each
such Exchangeable Share, upon presentation and surrender at the registered
office of the Corporation or at any office of the Agent or Transfer Agent as may
be specified by the Corporation in such notice of the certificates representing
such Exchangeable Shares, together with such other documents and instruments as
may be required to
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effect a transfer of Exchangeable Shares under the Act and the articles and
by-laws of the Corporation and such additional documents and instruments as the
Transfer Agent may reasonably require. Payment of the total Redemption Price for
such Exchangeable Shares shall be made by instruction to the Agent to deliver to
each holder, at the address of the holder recorded in the securities register of
the Corporation or by holding for pick-up by the holder at the registered office
of the WACI or at any office of the Agent or Transfer Agent as may be specified
by the Corporation in such notice, of certificates representing WACI Common
Shares (which shares shall be duly issued as fully paid and non-assessable and
shall be free and clear of any lien, claim or encumbrance except with respect to
restrictions and legends required for purposes of compliance with U.S. federal
securities laws) and, if applicable, a cheque of the Corporation payable at par
at any branch of the bankers of the Corporation in payment of any such Unpaid
Dividend Amount, in each case, less any amounts withheld on account of tax
required to be deducted and withheld therefrom. On and after the Redemption
Date, the holders of the Exchangeable Shares called for redemption shall cease
to be holders of such Exchangeable Shares and shall not be entitled to exercise
any of the rights of holders in respect thereof, other than the right to receive
their proportionate part of the total Redemption Price, unless payment of the
total Redemption Price for such Exchangeable Shares shall not be made upon
presentation and surrender of certificates in accordance with the foregoing
provisions, in which case the rights of the holders shall remain unaffected
until the total Redemption Price have been paid in the manner hereinbefore
provided. The Corporation shall have the right at any time after the sending of
notice of its intention to redeem the Exchangeable Shares as aforesaid to
deposit or cause to be deposited the total Redemption Price for the Exchangeable
Shares so called for redemption, or of such of the said Exchangeable Shares
represented by certificates that have not at the date of such deposit been
surrendered by the holders thereof in connection with such redemption, in a
custodial account with any chartered bank or agent named in such notice, less
any amounts withheld on account of tax required to be deducted and withheld
therefrom. Upon the later of such deposit being made and the Redemption Date,
the Exchangeable Shares in respect whereof such deposit shall have been made
shall be redeemed and the rights of the holders thereof after such deposit or
Redemption Date, as the case may be, shall be limited to receiving their
proportionate part of the total Redemption Price, for such Exchangeable Shares
so deposited, against presentation and surrender of the said certificates held
by them, respectively, in accordance with the foregoing provisions. Upon such
payment or deposit of the total Redemption, less any amounts withheld on account
of tax required to be deducted and withheld therefrom, the holders of the
Exchangeable Shares shall thereafter be considered and deemed for all purposes
to be holders of the WACI Common Shares delivered to them or the custodian on
their behalf.
SECTION 8
CERTAIN RIGHTS OF WACI TO
ACQUIRE EXCHANGEABLE SHARES
8.1 WACI Liquidation Call Right.
(a) WACI shall have the overriding right (the "Liquidation Call Right"), in
the event of and notwithstanding the proposed liquidation, dissolution or
winding-up of the Corporation pursuant to section 5 of these Share
Provisions, to purchase from all but not less than all
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of the holders of Exchangeable Shares (other than any holder of
Exchangeable Shares which is an Affiliate of WACI) on the Liquidation Date
all but not less than all of the Exchangeable Shares held by each such
holder on payment by WACI of an amount per Exchangeable Share (the
"Liquidation Call Purchase Price") equal to (i) the Current Market Price
of a WACI Common Share on the last Business Day prior to the Liquidation
Date (which may be satisfied in full by WACI causing an instruction to the
Agent to deliver to such holder one WACI Common Share), plus (ii) the
Unpaid Dividend Amount, if any, on each such Exchangeable Share held by
such holder on any dividend record date which occurred prior to the date
of purchase by WACI. In the event of the exercise of the Liquidation Call
Right by WACI on the Liquidation Date on payment by WACI to the holder of
the Liquidation Call Purchase Price for each such share, the Corporation
shall have no obligation to redeem such shares so purchased by WACI.
(b) To exercise the Liquidation Call Right, WACI must notify the Agent, as
agent for the holders of Exchangeable Shares, and the Corporation, of
WACI's intention to exercise such right at least 45 days before the
Liquidation Date in the case of a voluntary liquidation, dissolution or
winding-up of the Corporation and at least five Business Days before the
Liquidation Date in the case of an involuntary liquidation, dissolution or
winding-up of the Corporation. The Corporation will notify the holders of
Exchangeable Shares as to whether or not WACI has exercised the
Liquidation Call Right forthwith after the expiry of the period during
which the same may be exercised by WACI. If WACI exercises the Liquidation
Call Right, then on the Liquidation Date WACI will purchase and the
holders will sell all of the Exchangeable Shares then outstanding for a
price per share equal to the Liquidation Call Purchase Price.
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Liquidation Call Right, WACI shall provide that the Agent
holds, on or before the Liquidation Date, sufficient certificates
representing the aggregate number of WACI Common Shares deliverable in
respect of the Liquidation Call Right and a cheque or cheques of WACI
payable at par at any branch of the bankers of WACI representing the
aggregate Unpaid Dividend Amount in payment of the total Liquidation Call
Purchase Price, in each case, less any amounts withheld on account of tax
required to be deducted and withheld therefrom. Provided that WACI has
complied with the immediately preceding sentence, on and after the
Liquidation Date the rights of each holder of Exchangeable Shares will be
limited to receiving such holder's proportionate part of the total
Liquidation Call Purchase Price payable by WACI upon presentation and
surrender by the holder of certificates representing the Exchangeable
Shares held by such holder and the holder shall on and after the
Liquidation Date be considered and deemed for all purposes to be the
holder of the WACI Common Shares to which it is entitled. Upon surrender
to the Transfer Agent of a certificate or certificates representing
Exchangeable Shares, together with such other documents and instruments as
may be required to effect a transfer of Exchangeable Shares under the Act
and the articles and by-laws of the Corporation and such additional
documents and instruments as the Transfer Agent may reasonably require,
the holder of such surrendered certificate or certificates shall be
entitled to receive in exchange therefore, and the Transfer Agent on
behalf of WACI shall
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Support Agreement
deliver to such holder, certificates representing the WACI Common Shares
to which the holder is entitled and a cheque or cheques of WACI payable at
par at any branch of the bankers of WACI in payment of the remaining
portion, if any, of the total Liquidation Call Purchase Price, in each
case, less any amounts withheld on account of tax required to be deducted
and withheld therefrom. If WACI does not exercise the Liquidation Call
Right in the manner described above, on the Liquidation Date the holders
of the Exchangeable Shares will be entitled to receive in exchange
therefore the liquidation price otherwise payable by the Corporation in
connection with the liquidation, dissolution or winding up of the
Corporation pursuant to section 5 of these Share Provisions.
(d) WACI shall at any time be entitled to assign all of its rights in this
Section to an Affiliate of WACI provided that such company assumes all of
WACI's obligations under this Section.
8.2 WACI Redemption Call Right.
(a) WACI shall have the overriding right (the "Redemption Call Right"),
notwithstanding the proposed redemption of the Exchangeable Shares by the
Corporation pursuant to section 7 of these Share Provisions, to purchase
from all but not less than all of the holders of Exchangeable Shares
(other than any holder of Exchangeable Shares which is an Affiliate of
WACI) on the Redemption Date all but not less than all of the Exchangeable
Shares held by each such holder on payment by the Corporation to each
holder of an amount per Exchangeable Share (the "Redemption Call Purchase
Price") equal to (i) the Current Market Price of a WACI Common Share on
the last Business Day prior to the Redemption Date (which may be satisfied
in full by WACI instructing the Agent to deliver to such holder one WACI
Common Share), plus (ii) the Unpaid Dividend Amount, if any, on each
Exchangeable Share held by such holder on any dividend record date which
occurred prior to the Redemption Date. In the event of the exercise of the
Redemption Call Right by WACI, each holder shall be obligated to sell all
the Exchangeable Shares held by the holder to WACI on the Redemption Date
on payment by WACI to the holder of the Redemption Call Purchase Price for
each such share, and the Corporation shall have no obligation to redeem
such shares so purchased by WACI.
(b) To exercise the Redemption Call Right, WACI must notify the Agent, as
agent for the holders of Exchangeable Shares, and the Corporation, of
WACI's intention to exercise such right at least 45 days before the
Redemption Date, except in the case of a redemption occurring as a result
of a WACI Control Transaction, an Exchangeable Share Voting Event or an
Exempt Exchangeable Share Voting Event or such shorter period as may be
agreed, in writing, by the Corporation, WACI and the holders of the
Exchangeable Shares, in which case WACI shall so notify the Transfer Agent
and the Corporation on or before the Redemption Date. The Corporation will
notify the holders of Exchangeable Shares as to whether or not WACI has
exercised the Redemption Call Right forthwith after the expiry of the
period during which the same may be exercised by WACI. If WACI exercises
the Redemption Call Right, on the Redemption Date WACI will purchase and
the holders will sell all of the Exchangeable Shares then outstanding for
a price per share equal to the Redemption Call Purchase Price.
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Support Agreement
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, WACI shall assure that the Agent
holds, on or before the Redemption Date, sufficient certificates
representing the aggregate number of WACI Common Shares in respect of the
Redemption Call Right and a cheque or cheques of WACI payable at par at
any branch of the bankers of WACI representing the aggregate Unpaid
Dividend Amount in payment of the total Redemption Call Purchase Price, in
each case, less any amounts withheld on account of tax required to be
deducted and withheld therefrom. Provided that WACI has complied with the
immediately preceding sentence, on and after the Redemption Date the
rights of each holder of Exchangeable Shares will be limited to receiving
such holder's proportionate part of the total Redemption Call Purchase
Price payable by WACI upon presentation and surrender by the holder of
certificates representing the Exchangeable Shares held by such holder and
the holder shall on and after the Redemption Date be considered and deemed
for all purposes to be the holder of the WACI Common Shares to which it is
entitled. Upon surrender to the Agent of a certificate or certificates
representing Exchangeable Shares, together with such other documents and
instruments as may be required to effect a transfer of Exchangeable Shares
under the Act and the articles and by-laws of the Corporation and such
additional documents and instruments as the Agent may reasonably require,
the holder of such surrendered certificate or certificates shall be
entitled to receive in exchange therefore, and the Agent on behalf of WACI
shall deliver to such holder, certificates representing the WACI Common
Shares to which the holder is entitled and a cheque or cheques of WACI
payable at par at any branch of the bankers of WACI in payment of the
remaining portion, if any, of the total Redemption Call Purchase Price, in
each case, less any amounts withheld on account of tax required to be
deducted and withheld therefrom. If WACI does not exercise the Redemption
Call Right in the manner described above, on the Redemption Date the
holders of the Exchangeable Shares will be entitled to receive in exchange
therefore the redemption price otherwise payable by the Corporation in
connection with the redemption of the Exchangeable Shares pursuant to
section 7 of these Share Provisions.
(d) WACI shall at any time be entitled to assign all of its rights in this
Section to an Affiliate of WACI provided that such company assumes all of
WACI's obligations under this Section.
SECTION 9
PURCHASE FOR CANCELLATION
9.1 Subject to applicable law and the articles of the Corporation, the
Corporation may at any time and from time to time offer to purchase for
cancellation all or any part of the outstanding Exchangeable Shares at any price
by tender to all the holders of record of Exchangeable Shares then outstanding
or through the facilities of any stock exchange on which the Exchangeable Shares
are listed or quoted at any price per share together with an amount equal to the
Unpaid Dividend Amount. If in response to an invitation for tenders under the
provisions of this section 9, more Exchangeable Shares are tendered at a price
or prices acceptable to the Corporation than the Corporation is prepared to
purchase, the Exchangeable Shares to be purchased by the
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Corporation shall be purchased as nearly as may be pro rata according to the
number of shares tendered by each holder who submits a tender to the
Corporation, provided that when shares are tendered at different prices, the pro
rating shall be effected (disregarding fractions) only with respect to the
shares tendered at the price at which more shares were tendered than the
Corporation is prepared to purchase after the Corporation has purchased all the
shares tendered at lower prices. If part only of the Exchangeable Shares
represented by any certificate shall be purchased, a new certificate for the
balance of such shares shall be issued at the expense of the Corporation.
SECTION 10
VOTING RIGHTS
10.1 Except as required by applicable law and by sections 11, 12 and 13 hereof,
and by the provisions of the Support Agreement referred to in section 12 hereof,
the holders of the Exchangeable Shares shall not be entitled as such to receive
notice of or to attend any meeting of the shareholders of the Corporation or to
vote at any such meeting. The holders of Exchangeable Shares shall, however, be
entitled to notice of meetings of the shareholders called for the purpose of
authorizing the liquidation, dissolution or winding up of the Corporation or the
sale, lease, or exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business of the Corporation.
Nothing herein shall be construed to limit the voting rights of any issued and
outstanding WACI Common Shares held in escrow by the Agent or otherwise limit
rights reserved to the holders of the Exchangeable Shares pursuant to the terms
of the Voting Agreement and Exchange Agency Agreement.
SECTION 11
AMENDMENT AND APPROVAL
11.1 The rights, privileges, restrictions, and conditions attaching to the
Exchangeable Shares may be added to, changed or removed but only with the
approval of the holders of the Exchangeable Shares given as hereinafter
specified.
11.2 Any approval given by the holders of the Exchangeable Shares to add to,
change or remove any right, privilege, restriction or condition attaching to the
Exchangeable Shares or any other matter requiring the approval or consent of the
holders of the Exchangeable Shares shall be deemed to have been sufficiently
given if it shall have been given in accordance with applicable law subject to a
minimum requirement that such approval be evidenced by resolution passed by not
less than two-thirds (2/3) of the votes cast on such resolution at a meeting of
holders of Exchangeable Shares duly called and held at which the holders of at
least two-thirds (2/3) of the outstanding Exchangeable Shares at that time are
present or represented by proxy; provided that, if at any such meeting the
holders of at least two-thirds (2/3) of the outstanding Exchangeable Shares at
that time are not present or represented by proxy within one-half hour after the
time appointed for such meeting, then the meeting shall be adjourned to such
date not less than five (5) days thereafter and to such time and place as may be
designated by the Chairman of such meeting. At such adjourned meeting the
holders of Exchangeable Shares present or represented by proxy thereat may
transact the business for which the meeting was originally called and a
resolution passed thereat by the affirmative vote of not less than two-thirds
(2/3) of the votes cast
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on such resolution at such meeting shall constitute the approval or consent of
the holders of the Exchangeable Shares.
SECTION 12
RECIPROCAL CHANGES, ETC. IN RESPECT
OF PARENT COMMON SHARES
12.1 Each holder of an Exchangeable Share acknowledges that the Support
Agreement provides that WACI will not without the prior approval of the
Corporation and the prior approval of the holders of the Exchangeable Shares
given in accordance with section 11.2 of these Share Provisions:
(a) issue or distribute WACI Common Shares (or securities exchangeable for or
convertible into or carrying rights to acquire WACI Common Shares) to the
holders of all or substantially all of the then outstanding WACI Common
Shares by way of stock dividend or other distribution, other than an issue
of WACI Common Shares (or securities exchangeable for or convertible into
or carrying rights to acquire WACI Common Shares) to holders of WACI
Common Shares who exercise an option to receive dividends in WACI Common
Shares (or securities exchangeable for or convertible into or carrying
rights to acquire WACI Common Shares) in lieu of receiving cash dividends;
(b) issue or distribute rights, options or warrants to the holders of all or
substantially all of the then outstanding WACI Common Shares entitling
them to subscribe for or to purchase WACI Common Shares (or securities
exchangeable for or convertible into or carrying rights to acquire WACI
Common Shares); or
(c) issue or distribute to the holders of all or substantially all of the then
outstanding WACI Common Shares:
(i) shares or securities of WACI of any class other than WACI Common
Shares (other than shares convertible into or exchangeable for or
carrying rights to acquire WACI Common Shares);
(ii) rights, options or warrants other than those referred to in section
12.1(b) above;
(iii) evidences of indebtedness of WACI; or
(iv) assets of WACI,
unless (a) WACI is permitted under applicable law to issue or distribute the
economic equivalent on a per share basis of such rights, options, securities,
shares, evidences of indebtedness or other assets to holders of the Exchangeable
Shares in which any and all such cases, such rights, options, securities,
shares, evidences of indebtedness or other assets shall be disbursed by WACI to
the Agent; and (b) the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets is issued
or distributed substantially simultaneously by the Agent to holders of the
Exchangeable Shares.
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12.2 Each holder of an Exchangeable Share acknowledges that the Support
Agreement further provides that WACI will not without the prior approval of the
Corporation and the prior approval of the holders of the Exchangeable Shares
given in accordance with section 11.2 of these Share Provisions:
(a) subdivide, redivide or change the then outstanding WACI Common Shares into
a greater number of WACI Common Shares;
(b) reduce, combine, consolidate or change the then outstanding WACI Common
Shares into a lesser number of WACI Common Shares; or
(c) reclassify or otherwise change the WACI Common Shares or effect an
amalgamation, merger, reorganization or other transaction affecting the
WACI Common Shares,
unless (a) WACI is permitted under applicable law to issue or distribute the
economic equivalent on a per share basis of such rights, options, securities,
shares, evidences of indebtedness or other assets to holders of the Exchangeable
Shares in which any and all such cases such rights, options, securities, shares,
evidences of indebtedness or other assets shall be disbursed by WACI to the
Agent; and (b) the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets is issued
or distributed substantially simultaneously by the Agent to holders of the
Exchangeable Shares.
12.3 Each holder of an Exchangeable Share acknowledges that the Support
Agreement further provides that the aforesaid provisions of the Support
Agreement shall not be changed without the approval of the holders of the
Exchangeable Shares given in accordance with section 11.2 of these Share
Provisions.
SECTION 13
ACTIONS BY THE CORPORATION UNDER THE SUPPORT AGREEMENT
13.1 The Corporation will take all such actions and do all such things as shall
be necessary or advisable to perform and comply with and to ensure performance
and compliance by WACI and the Corporation with all provisions of the Support
Agreement and the Share Provisions applicable to WACI, the Corporation and the
holders of the Exchangeable Shares, in accordance with the terms thereof
including, without limitation, taking all such actions and doing all such things
as shall be necessary or advisable to enforce to the fullest extent possible for
the direct benefit of the Corporation and the holders of the Exchangeable Shares
all rights and benefits in favour of the Corporation and the holders of the
Exchangeable Shares under or pursuant to such agreement.
13.2 The Corporation shall not propose, agree to or otherwise give effect to any
amendment to, or waiver or forgiveness of its rights or obligations under, the
Support Agreement without the approval of the holders of the Exchangeable Shares
given in accordance with section 11.2 of these Share Provisions, other than such
amendments, waivers and/or forgiveness as may be necessary or advisable for the
purposes of:
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(a) adding to the covenants of WACI to such agreement for the protection
of the Corporation or the holders of the Exchangeable Shares
thereunder;
(b) making such provisions or modifications not inconsistent with such
agreement as may be necessary or desirable with respect to matters
or questions arising thereunder which, in the good faith opinion of
the Board of Directors, it may be expedient to make, provided that
the Board of Directors shall be of the good faith and reasonable
opinion, after consultation with counsel, that such provisions and
modifications will not be prejudicial to the interests of the
holders of the Exchangeable Shares; or
(c) making such changes in or corrections to such agreement which, on
the advice of counsel to the Corporation, are required for the
purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or manifest
error contained therein, provided that the Board of Directors shall
be of the good faith and reasonable opinion, that such changes or
corrections will not be prejudicial to the interests of the holders
of the Exchangeable Shares.
SECTION 14
LEGEND; CALL RIGHTS
14.1 The certificates evidencing the Exchangeable Shares shall contain or have
affixed thereto a legend in form and on terms approved by the Board of
Directors, with respect to the Support Agreement, the provisions herein relating
to the Liquidation Call Right, the Retraction Call Right and the Redemption Call
Right as well as restricted transfer legends required for purposes of compliance
with U.S. federal securities laws.
14.2 Each holder of an Exchangeable Share, whether of record or beneficial, by
virtue of becoming and being such a holder shall be deemed to acknowledge each
of the Liquidation Call Right, the Retraction Call Right and the Redemption Call
Right, in each case, in favour of WACI, and the overriding nature thereof in
connection with the liquidation, dissolution or winding-up of the Corporation or
the retraction or redemption of Exchangeable Shares, as the case may be, and to
be bound thereby in favour of WACI as therein provided.
SECTION 15
NOTICES
15.1 Any notice, request or other communication to be given to the Corporation
by a holder of Exchangeable Shares shall be in writing and shall be valid and
effective if given by personal or courier delivery to the registered office of
the Corporation and addressed to the attention of the President. Any such
notice, request or other communication shall only be deemed to have been given
and received upon actual receipt thereof by the Corporation.
15.2 Any presentation and surrender by a holder of Exchangeable Shares to the
Corporation or
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the Transfer Agent of certificates representing Exchangeable Shares in
connection with the liquidation, dissolution or winding-up of the Corporation or
the retraction or redemption of Exchangeable Shares shall be made by personal or
courier delivery to the registered office of the Corporation or to such office
of the Transfer Agent as may be specified by the Corporation, in each case,
addressed to the attention of the President of the Corporation. Any such
presentation and surrender of certificates shall only be deemed to have been
made and to be effective upon actual receipt thereof by the Corporation or the
Transfer Agent, as the case may be.
15.3 Any notice, request or other communication to be given to a holder of
Exchangeable Shares by or on behalf of the Corporation shall be in writing and
shall be valid and effective if given by personal or courier delivery to the
address of the holder recorded in the securities register of the Corporation or,
in the event of the address of any such holder not being so recorded, then at
the last known address of such holder. Any such notice, request or other
communication, if given by mail, shall be deemed to have been given and received
on the date of delivery. Accidental failure or omission to give any notice,
request or other communication to one or more holders of Exchangeable Shares
shall not invalidate or otherwise alter or affect any action or proceeding to be
taken by the Corporation pursuant thereto.
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Support Agreement
APPENDIX 1
FORM OF NOTICE OF RETRACTION
To: 1588102 Ontario Inc. (the "Corporation")
This notice is given pursuant to section 6 of the provisions (the "Share
Provisions") attaching to the Class B non-voting exchangeable shares of the
Corporation represented by the certificate (the "Certificate") which accompanies
this notice and all capitalized words and expressions used in this notice that
are defined in the Share Provisions have the meanings ascribed to such words and
expressions in such Share Provisions.
The undersigned hereby notifies the Corporation that, subject to the
Retraction Call Right referred to below, the undersigned desires to have the
Corporation redeem in accordance with section 6 of the Share Provisions:
|_| all share(s) represented by the Certificate; or
|_| ____________ share(s) only.
The undersigned hereby notifies the Corporation that the Retraction Date
shall be:
____________
NOTE: the Retraction Date must be a Business Day and must not be less than
10 Business Days nor more than 15 Business Days after the date upon which
this notice is delivered to the Corporation. If no such Business Day is
specified above, the Retraction Date shall be deemed to be the 15th
Business Day after the date on which this notice is delivered to the
Corporation.
The undersigned acknowledges the overriding Retraction Call Right of
Wireless Age Communications, Inc. ("WACI") to purchase all but not less than all
the Retracted Shares from the undersigned and that this notice is and shall be
deemed to be a revocable offer by the undersigned to sell such shares to WACI in
accordance with the Retraction Call Right on the Retraction Date for the
Purchase Price and on the other terms and conditions set out in section 6.3 of
the Share Provisions. This notice of retraction, and this offer to sell the
Retracted Shares to WACI, may be revoked and withdrawn by the undersigned only
by notice in writing given to the Corporation at any time before the close of
business on the Business Day immediately preceding the Retraction Date as
provided in section 6.7 of the Share Provisions.
The undersigned acknowledges that if, as a result of solvency provisions
of applicable law, the Corporation is unable to redeem all Retracted Shares, the
undersigned will be deemed to have exercised the Exchange Right (as defined in
the Share Provisions) so as to require WACI, to purchase the unredeemed
Retracted Shares.
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The undersigned hereby represents and warrants to the Corporation and WACI
that the undersigned:
|_| is
(select one)
|_| is not
a non-resident of Canada for purposes of the Income Tax Act (Canada). The
undersigned acknowledges that, in the absence of an indication that the
undersigned is not a non- resident of Canada, withholding on account of Canadian
tax may be made from amounts payable to the undersigned on the redemption or
purchase of the Retracted Shares.
The undersigned hereby represents and warrants to the Corporation and WACI
that the undersigned has good title to, and owns, the share(s) represented by
the Certificate to be acquired by the Corporation or WACI, as the case may be,
free and clear of all liens, claims and encumbrances except with respect to
restrictions and legends required for purposes of compliance with U.S. federal
securities laws.
|_| Please check box if the securities and any cheque(s) resulting from
the retraction or purchase of the Retracted Shares are to be held for pick-up by
the shareholder from the Transfer Agent, failing which the securities and any
cheque(s) will be mailed to the last address of the shareholder as it appears on
the register.
Date:
---------------------------------------
--------------------------------------------------------------------------
Name of Person in Whose Name Securities or Cheque(s) are to be Registered,
Issued or Delivered (please print)
--------------------------------------------------------------------------
Street Address or P.O. Box
--------------------------------------------------------------------------
Signature of Shareholder
--------------------------------------------------------------------------
City, Province and Postal Code
--------------------------------------------------------------------------
Signature Guaranteed by
NOTE: (1) This panel must be completed and the Certificate, together with
such additional documents as the Transfer Agent may require, must be
deposited with the Transfer Agent. The securities and any cheque(s)
resulting from the retraction or purchase of the Retracted Shares
will be issued and registered in, and made payable to, respectively,
the
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name of the shareholder as it appears on the register of the
Corporation and the securities and any cheque(s) resulting from such
retraction or purchase will be delivered to such shareholder as
indicated above, unless the form appearing immediately below is duly
completed.
(2) If this notice of retraction is for less than all of the shares
represented by the Certificate, a certificate representing the
remaining share(s) of the Corporation represented by the Certificate
will be issued and registered in the name of the shareholder as it
appears on the register of the Corporation, unless the share
transfer power on the reverse side of the Certificate is duly
completed in respect of such share(s).
# # #
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Support Agreement
Annex A
Capitalization of Exchangeco
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