EXHIBIT 99.2
SUPPORT AGREEMENT
THIS AGREEMENT is made the 19th day of September, 2003,
BETWEEN:
WIRELESS AGE COMMUNICATIONS, INC., a corporation incorporated under the
laws of the State of Nevada, having its principal office at 0000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxx, 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")
WHEREAS pursuant to a share exchange agreement dated as of the date
hereof (the "Share Exchange Agreement"), Exchangeco has agreed to acquire all of
the Class B shares (the "Class B Shares") of Wireless Source Distribution Ltd.
(the "Company") held by Xxxxxx X. Xxxxxxxx (the "Vendor") in exchange for the
issuance to the Vendor 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");
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:
DEFINITIONS AND INTERPRETATION
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".
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
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hereof and include any agreement or instrument supplementary or ancillary
hereto.
NUMBER, GENDER
Words in the singular number only shall include the plural and vice
versa. Words in one gender shall include all genders.
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.
COVENANTS OF WACI AND EXCHANGECO
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 or
authorized but unissued securities 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 as are reasonably necessary, in
co-operation with Exchangeco, 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 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 cause to be delivered WACI Common Shares
to the holders of Exchangeable Shares in accordance with the
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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 reasonably
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 and permit it to issue
and deliver WACI Common Shares to the holders of Exchangeable
Shares 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.
SEGREGATION OF FUNDS
WACI will cause Exchangeco 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.
RESERVATION OF WACI COMMON SHARES
WACI hereby represents, warrants and covenants in favour of Exchangeco
that WACI has reserved for issuance and will, at all times while any
Exchangeable Shares (other than Exchangeable Shares held by WACI or its
Affiliates) are outstanding, keep available, free from pre-emptive and other
rights, out of its authorized and unissued capital stock such number of WACI
Common Shares (a) 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 (b) as are now
and may hereafter be required to enable and permit WACI to meet its obligations
under the Liquidation Call Right, the Retraction Call Right and the Redemption
Call Right 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.
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:
(g) in the event of any determination by the Board of Directors to
institute voluntary liquidation, dissolution or winding-up
proceedings with respect to Exchangeco or
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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;
(h) 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;
(i) immediately, upon receipt by Exchangeco of a Retraction
Request;
(j) 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
(k) as soon as practicable upon the issuance by Exchangeco of any
Exchangeable Shares or rights to acquire Exchangeable Shares.
DELIVERY OF WACI COMMON SHARES TO EXCHANGECO
Upon notice from Exchangeco of any event that requires Exchangeco to
cause to be delivered WACI Common Shares 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, WACI shall forthwith issue and deliver
or cause to be delivered to or to the direction of Exchangeco 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 Exchangeco
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. In consideration of the issuance and delivery of each such
WACI Common Share, Exchangeco shall issue to WACI, or as WACI shall direct,
Class A shares in the capital of Exchangeco having equivalent value.
ECONOMIC EQUIVALENCE
(l) 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
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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
(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 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.
(m) 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 the same or an economically equivalent change shall
simultaneously be made to, or in the rights of the holders
of, the Exchangeable Shares.
(n) 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 notification thereof by WACI to Exchangeco).
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(o) The Board of Directors shall determine, in good faith and in
its sole discretion acting reasonably, 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).
(p) 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
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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.
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.
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.
WACI AND AFFILIATES NOT TO VOTE EXCHANGEABLE SHARES
WACI covenants and agrees that it will appoint and cause to be
appointed proxyholders 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 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.
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1.2 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.
WACI SUCCESSORS
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, 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.
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.
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,
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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.
GENERAL
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 Exchangeable Shares) are held by any person or
entity other than WACI and any of its Affiliates.
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.
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.
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.
MINISTERIAL 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:
(c) 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 opinion that such additions will not be
prejudicial to the rights or interests of the holders of the
Exchangeable Shares;
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(d) 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 opinion that such
amendments or modifications will not be prejudicial to the
rights or interests of the holders of the Exchangeable Shares;
or
(e) making such changes or corrections which, on the advice of
counsel to WACI and 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 opinion that such
changes or corrections will not be prejudicial to the rights
or interests of the holders of the Exchangeable Shares.
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.
ENUREMENT
This Agreement shall be binding upon and enure to the benefit of the
Parties hereto and their respective successors and assigns.
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.
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.
GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein. 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.
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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.
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Name:
Title:
1588102 ONTARIO INC.
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Name:
Title:
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SCHEDULE "A"
THE CLASS B SHARES OF 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 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 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,
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.
(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
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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 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.
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(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 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 WACI Holdings, Inc., a corporation existing under the laws
of the State of Delaware, 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.
(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 ranking junior to the Exchangeable Shares 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 The Board of Directors shall, subject to applicable law, on each WACI
Dividend Declaration Date, declare a dividend on each Exchangeable Share as
follows:
(a) 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;
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(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 stock dividend
of such number of Exchangeable Shares for each Exchangeable Share as is
equal to the number of WACI Common Shares to be paid on each WACI
Common Share; or
(c) in the case of a dividend declared on the WACI Common Shares in
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).
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.
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 registered holder of Exchangeable Shares shall be issued or transferred in
respect of any stock dividends contemplated by section 3.1(b) hereof and the
sending of such a certificate to each holder of an Exchangeable Share shall
satisfy the stock dividend represented thereby. Such other type and amount of
property in respect of any dividends contemplated by section 3.1(c) 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. 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.
3.5 The Board of Directors shall determine, in good faith and in its sole
discretion, 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:
-5-
(a) 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;
(b) 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
(c) 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).
SECTION 4
CERTAIN RESTRICTIONS
4.1 So long as any of the Exchangeable Shares are outstanding, and subject to
the provisions of section 4.2 hereof, 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 other shares ranking
junior to 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 other shares ranking junior to the Exchangeable
Shares;
(c) redeem or purchase any other shares of the Corporation ranking equally
with the Exchangeable Shares with respect to the payment of dividends
or on any Liquidation Distribution; or
(d) issue any Exchangeable Shares or any other shares of the Corporation
ranking equally with, or superior to, the Exchangeable Shares other
than by way of stock dividends to the holders of such Exchangeable
Shares.
4.2 No prior approval from the holders of the Exchangeable Shares pursuant to
subsections 4.1(a), (b), (c) and (d) above shall be required if all dividends on
the outstanding Exchangeable Shares corresponding to dividends declared and paid
to date on the WACI Common Shares shall have been declared and paid on the
Exchangeable Shares.
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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 ranking junior to the Exchangeable
Shares, 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 to be delivered to such holder one WACI Common Share), 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 The Corporation shall notify the Transfer Agent, as agent for the 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 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 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, at the
registered office of the Corporation or at any office of the 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 the Corporation or
at any office of the Transfer Agent as may be specified by the Corporation by
notice to the holders of Exchangeable Shares, on behalf of the Corporation 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) 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
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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.
5.3 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 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 to be
delivered 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 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
the Corporation or at any office of the 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 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
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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 Upon receipt by the Corporation or the 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 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 causing to be delivered 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, WACI shall deposit with the Transfer Agent, on or before
the Retraction Date, certificates representing WACI Common Shares and a cheque
or cheques of WACI payable at par at any branch of the bankers of WACI
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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 deliver, or cause the
Transfer 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 the Corporation or
at any office of the 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)
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 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 and
cheques on behalf of the Corporation or by WACI, as the case may be, or by the
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
-10-
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 Retracted
Shares in accordance with section 6.2 of these Share Provisions on a PRO RATA
basis and 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
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 to be delivered
to each holder of Exchangeable Shares one WACI Common Share for each
Exchangeable Share held by such holder), 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
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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 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 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 delivery 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 Corporation or at any office of the Transfer Agent as may be specified by
the Corporation in such notice, on behalf of the Corporation 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) 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.
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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 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 to be delivered 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 Transfer
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 Transfer Agent 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 deposit with the
Transfer Agent, on or before the Liquidation Date, certificates
representing the aggregate number of WACI Common Shares deliverable by
WACI 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
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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 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 causing to be delivered 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 Transfer
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
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Exchangeable Shares, in which case WACI shall so notify the Transfer
Agent and the Corporation on or before the Redemption Date. The
Transfer Agent 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.
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, WACI shall deposit with the
Transfer Agent, on or before the Redemption Date, certificates
representing the aggregate number of WACI Common Shares deliverable by
WACI 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 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 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
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time and from time to time 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 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 section 11 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.
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 on such resolution at such meeting shall constitute the
approval or consent of the holders of the
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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 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.
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;
-17-
(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 the same or an economically equivalent change shall simultaneously be
made to, or in, the rights of the 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:
(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 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
-18-
or manifest error contained therein, provided that the Board of
Directors shall be of the good faith 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.
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 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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APPENDIX 1
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.
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.
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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.
| | 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 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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