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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Meridian Gold Inc.
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(Exact Name of Registrant as Specified in its Charter)
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Canada 88-0226676
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(State of Incorporation or Organization) (I.R.S. Employer Identification no.)
9670 Gateway Drive, Suite 200, Reno, Nevada 89511-8997
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(Address of principal executive offices) (zip code)
If this Form relates to the registration of a If this Form relates to the registration of a
class of debt securities and is effective upon class of debt securities and is to become
filing pursuant to General Instruction A.(c)(1) effective simultaneously with the effectiveness of
please check the following box. [ ] a concurrent registration statement under the
Securities Act of 1933 pursuant to General
Instruction A.(c)(2) please check the following
box. [ ]
If this Form relates to the registration of a If this Form relates to the registration of a
class of securities pursuant to Section 12(b) of class of securities pursuant to Section 12(g) of
the Exchange Act and is effective pursuant to the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following General Instruction A.(d), check the following
box. [X] box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class to Name of Each Exchange on Which
be so Registered Each Class is to be Registered
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Rights, with respect to Common Shares, New York Stock Exchange, Inc.
without par value
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Rights
On February 18, 1999 the Board of Directors (the "Board") of Meridian Gold Inc.
(the "Company") approved the form and content of a Shareholder Rights Plan
Agreement dated as of March 19, 1999 (the "Rights Agreement"), as amended by the
Shareholder Rights Plan Amending Agreement also dated as of March 19, 1999 (the
"Amending Agreement"), between the Company and The Trust Company of Bank of
Montreal, as Rights Agent (the "Rights Agent"). The Rights Agreement was
executed by the Company and the Rights Agent and will become effective (the
"Effective Time") on the earlier of: (i) the close of business on July 31, 1999;
(ii) the date that an Acquiring Person (as defined below) has become an
Acquiring Person; and (iii) the date that an event occurs that would give rise
to the subsequent separation of rights under the Rights Agreement dated as of
July 31, 1996 between the Company and the Rights Agent, and disregarding the
expiration time under that agreement. The Rights Agreement has a term of ten
years, subject to reconfirmation by the Company's shareholders at the third and
sixth annual meeting following the Company's annual and special meeting of
shareholders in 1999, and if it is reconfirmed by the Company's shareholders at
such times, it expires at the close of business on July 30, 2009 (the
"Expiration Time"). The Board also authorized the issuance, effective at the
Effective Time (the "Record Time"), of one Right (as defined in the Rights
Agreement) in respect of each common share (each, a "Common Share") of the
Company outstanding at the Record Time, as well as the issuance of one Right in
respect of each Common Share to be issued after the Record Time and prior to the
Separation Time (as defined below) and the Expiration Time.
Each Right entitles the holder, after the Separation Time, to purchase Common
Shares from the Company on the basis set out in the Rights Agreement. The
"Separation Time" means the close of business on the tenth trading day after
the earlier of (i) the first date of public announcement that a person or group
other than certain exempt persons (an "Acquiring Person"), together with
persons affiliated or associated with such Acquiring Person (other than those
that are exempted), has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of any class of voting shares of the Company; (ii) the
date of commencement or public announcement of an intention to commence a
Take-over Bid (as defined below), other than a Permitted Bid or a Competing
Permitted Bid (each as defined below); or (iii) the date upon which a Permitted
Bid or Competing Permitted Bid cease to be such, or such later time as may be
determined by the Board, provided that, if any Take-over Bid in clause (ii)
expires, is cancelled, terminated or otherwise withdrawn prior to the
Separation Time, such Take-over Bid shall be deemed never to have been made.
A "Take-over Bid" means an offer to acquire voting shares of the Company (or
securities convertible into such shares) which, if successful, would result in
the person making such an offer (the "Offeror") beneficially owning 20% or more
of any class of voting shares of the Company (including any such shares held by
the Offeror prior to the offer). A "Permitted Bid" and a "Competing Permitted
Bid" are Take-over Bids that are made by
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means of an offering circular and that (i) are made to all shareholders; (ii)
are open for a period of not less than 60 days; (iii) have a minimum deposit
condition; and (iv) contain certain withdrawal rights and extension terms.
The Rights Agreement provides that, until the Separation Time, the Rights will
be transferred with and only with the Common Shares, and the Common Share
certificates will contain a legend incorporating the Rights Agreement by
reference. Until the earlier of the Separation Time and the Expiration Time,
the surrender for transfer of any Common Share certificate will also constitute
the transfer of the Rights associated with the Common Shares represented by
such certificate. As soon as practicable following the Separation Time,
separate certificates evidencing the Rights ("Rights Certificates") will be
mailed to holders of record of the Common Shares as of the close of business on
the Separation Time, and thereafter the Rights Certificates alone will evidence
the Rights.
After the Separation Time and prior to the Expiration Time, the Rights are
exercisable by the holders. Upon exercise, subject to adjustment, each Right
will entitle the holder to purchase one Common Share for the Exercise Price,
which initially shall be Cdn. $25.00.
The Exercise Price, as well as the number and kind of securities subject to
purchase upon exercise of each Right and the number of Rights outstanding, is
subject to adjustment as set out in the Rights Agreement. In the event of
certain stock dividends, share subdivision or consolidation or certain share
issuances, the Exercise Price and the number of Rights outstanding (or
securities subject to purchase upon exercise of each Right) shall be adjusted
by an Expansion Factor (as defined in the Rights Agreement) to afford certain
protection against dilution. The Rights Agreement provides for similar
adjustments in the event of (a) an issuance to all holders of Common Shares of
rights, options or warrants to acquire Common Shares at a price less than the
current market price or (b) a distribution to all holders of Common Shares of
certain evidences of indebtedness or other rights, options or warrants.
The Rights are intended to have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group other than an exempt person
that attempts to acquire the Company on terms not approved by the Board, except
pursuant to an offer conditioned on a substantial number of Rights being
acquired. The Rights should not interfere with any merger or other business
combination approved by the Board prior to the time a person or group other
than an exempt person has acquired beneficial ownership of 20% or more of the
Common Shares.
Until a Right is exercised, the holder thereof, as such, will have no rights as
a shareholder of the Company, including, without limitation, the right to vote
or to receive dividends, if any.
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Certain Canadian Tax Consequences with respect to U.S. Security Holders
Acquisition of Rights
No income tax consequences arise to a U.S. security holder (a "Holder") upon
receipt of a Right under the Rights Agreement. For income tax purposes, the tax
basis to a Holder of a Right will be zero unless the Holder acquires additional
Rights after the Separation Time.
Disposition of Rights by Sale or Exercise
Taxable capital gains on property that is not "taxable Canadian property" to a
non-resident Holder are not included in income for Canadian tax purposes.
Allowable capital losses on property that is not "taxable Canadian property" to
a non-resident Holder are not deductible from taxable capital gains for
Canadian tax purposes. A non-resident Holder realizing a capital gain will not
be subject to tax in Canada on such gain unless both: (i) the property disposed
of is "taxable Canadian property"; and (ii) the Holder is not entitled to an
exemption from Canadian tax under the terms of an applicable tax treaty between
Canada and the jurisdiction where the non-resident Holder is fiscally resident.
Certain provisions of the Income Tax Act (Canada) (the "Act") deem property to
constitute "taxable Canadian property" in various circumstances. A share of a
Canadian-resident corporation which is listed on a prescribed stock exchange
(which includes the Toronto Stock Exchange) will not be "taxable Canadian
property" unless, at any time during the five years preceding the disposition,
at least 25% of any class of the corporation's shares were owned by the
particular non-resident Holder, by persons with whom that non-resident Holder
did not deal at arm's length, or by a combination of the two. For this purpose,
an interest in or option in respect of a share (including a Right) is deemed to
be a share. Therefore, Common Shares of the Company and the Rights will not
constitute "taxable Canadian property" to a particular non-resident Holder
unless: (i) that Holder met the 25% ownership threshold described above in the
five years preceding the disposition; or (ii) such shares are deemed to be
"taxable Canadian property" by some other provision of the Act.
Non-resident Holders should consult their own tax advisers concerning the
applicability of a bilateral income tax convention (if any) between Canada and
the jurisdiction where the non-resident Holder is fiscally resident, and the
Canadian tax consequences thereof. In general, the Canada-U.S. Income Tax
Convention provides that most (but not all) U.S.-resident Holders who dispose
of shares of a corporation are exempt from Canadian taxation on any resulting
capital gains, if the value of the corporation's shares is not derived
principally from "real property situated in Canada." As of the date hereof, the
value of Common Shares of the Company is not derived principally from "real
property situated in Canada."
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Expiration of Rights
The expiration of Rights will constitute a disposition thereof for zero
proceeds of disposition resulting in a capital loss equal to such Holder's
adjusted cost basis of the Rights disposed of by the Holder. The tax treatment
of capital losses is discussed in greater depth under the heading "Disposition
of Rights by Sale or Exercise."
In general, there are no limitations on the right of Holders to hold or vote
such securities imposed by Canadian law or by any of the Company's constituent
documents. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement
and the Amending Agreement, which are included as Exhibit 1.1 and Exhibit 1.2,
respectively, below.
ITEM 2. EXHIBITS.
Exhibit
Number Description
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1.1 Shareholder Rights Plan Agreement, dated as of
March 19, 1999, between Meridian Gold Inc. and
The Trust Company of the Bank of Montreal, as
Rights Agent, including the Form of Rights
Certificate, Form of Assignment and Form of
Election to Exercise attached thereto as
Attachment 1.
1.2 Shareholder Rights Plan Amending Agreement,
effective as of March 19, 1999, between Meridian
Gold Inc. and The Trust Company of the Bank of
Montreal, as Rights Agent.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
MERIDIAN GOLD INC.
DATE: APRIL 26, 1999 BY: /S/ EDWARD H. COLT
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Edward H. Colt
Chief Financial Officer
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EXHIBIT INDEX
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Exhibit
Number Description
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1.1 Shareholder Rights Plan Agreement, dated as of
March 19, 1999, between Meridian Gold Inc. and
The Trust Company of the Bank of Montreal, as
Rights Agent, including the Form of Rights
Certificate, Form of Assignment and Form of
Election to Exercise attached thereto as
Attachment 1.
1.2 Shareholder Rights Plan Amending Agreement,
effective as of March 19, 1999, between Meridian
Gold Inc. and The Trust Company of the Bank of
Montreal, as Rights Agent.
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EXHIBIT 1.1
SHAREHOLDER RIGHTS PLAN AGREEMENT
DATED AS OF
MARCH 19, 1999
BETWEEN
MERIDIAN GOLD INC
AND
THE TRUST COMPANY OF BANK OF MONTREAL
AS RIGHTS AGENT
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ARTICLE 1 - INTERPRETATION.......................................................................................2
1.1 Certain Definitions............................................................................2
1.2 Currency......................................................................................13
1.3 Headings......................................................................................13
1.4 Calculation of Number and Percentage of Beneficial Ownership of Outstanding Voting Shares.....14
1.5 Acting Jointly or in Concert..................................................................14
1.6 Generally Accepted Accounting Principles......................................................14
ARTICLE 2 - THE RIGHTS..........................................................................................15
2.1 Legend on Common Share Certificates...........................................................15
2.2 Initial Exercise Price; Exercise of Rights; Detachment of Rights..............................15
2.3 Adjustments to Exercise Price; Number of Rights...............................................18
2.4 Date on Which Exercise Is Effective...........................................................23
2.5 Execution, Authentication, Delivery and Dating of Rights Certificates.........................23
2.6 Registration, Transfer and Exchange...........................................................24
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates.....................................24
2.8 Persons Deemed Owners of Rights...............................................................25
2.9 Delivery and Cancellation of Certificates.....................................................25
2.10 Agreement of Rights Holders...................................................................26
2.11 Rights Certificate Holder Not Deemed a Shareholder............................................27
ARTICLE 3 - ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS......................................27
3.1 Flip-in Event.................................................................................27
ARTICLE 4 - THE RIGHTS AGENT....................................................................................29
4.1 General.......................................................................................29
4.2 Merger, Amalgamation or Consolidation or Change of Name of Rights Agent.......................29
4.3 Duties of Rights Agent........................................................................30
4.4 Change of Rights Agent........................................................................31
ARTICLE 5 - MISCELLANEOUS.......................................................................................32
5.1 Redemption, Waiver............................................................................32
5.2 Expiration....................................................................................34
5.3 Issuance of New Rights Certificates...........................................................34
5.4 Supplements and Amendments....................................................................34
5.5 Fractional Rights and Fractional Shares.......................................................36
5.6 Rights of Action..............................................................................36
5.7 Regulatory Approvals..........................................................................37
5.8 Declaration as to Non-Canadian Holders........................................................37
5.9 Notices.......................................................................................38
5.10 Costs of Enforcement..........................................................................39
5.11 Successors....................................................................................39
5.12 Benefits of this Agreement....................................................................39
5.13 Governing Law.................................................................................39
5.14 Severability..................................................................................39
5.15 Effective Date................................................................................39
5.16 Determinations and Actions by the Board of Directors..........................................40
5.17 Time of the Essence...........................................................................40
5.18 Execution in Counterparts.....................................................................40
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SHAREHOLDER RIGHTS PLAN AGREEMENT
MEMORANDUM OF AGREEMENT, dated as of March 19, 1999 between Meridian
Gold Inc. ("Meridian") a corporation incorporated under the laws of Canada and
The Trust Company of Bank of Montreal, a trust company incorporated under the
laws of Canada (the "Rights Agent");
RECITALS:
(A) The Board (as defined below) has determined that it is in the best
interests of Meridian to adopt a shareholder rights plan to ensure, to
the extent possible, that all shareholders of Meridian are treated
fairly in connection with any take-over bid for Meridian;
(B) In order to implement the adoption of a shareholder rights plan as
established by this Agreement, the Board has:
(a) authorized the issuance, effective at the Effective Time (as
defined below), of one Right (as defined below) in respect of
each Common Share (as defined below) on the Effective Date
(the "Record Time"); and
(b) authorized the issuance of one Right in respect of each Common
Share of Meridian issued after the Record Time and prior to
the earlier of the Separation Time (as defined below) and the
Expiration Time (as defined below);
(C) Each Right entitles the holder thereof, after the Separation Time, to
purchase securities of Meridian pursuant to the terms and subject to
the conditions set forth in this Agreement;
(D) Meridian desires to appoint the Rights Agent to act on behalf of
Meridian and the holders of Rights, and the Rights Agent is willing to
so act, in connection with the issuance, transfer, exchange and
replacement of Rights Certificates (as defined below), the exercise of
Rights and other matters referred to in this Agreement;
(E) The Board proposes that this Agreement be in place for a period of ten
years, subject to the Agreement being reconfirmed by Meridian's
shareholders every three years; and
(F) The Board approved the adoption of this Agreement on February 18, 1999,
and this Agreement shall only become effective as at the date that
Meridian's shareholders confirm the Agreement in the manner provided
for in Section 5.15 of this Agreement.
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements set forth in this Agreement, and subject to such
covenants and agreements, the parties hereby agree as follows:
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ARTICLE 1 - INTERPRETATION
1.1 CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the meanings indicated:
(a) "ACQUIRING PERSON" means any Person who is the Beneficial owner of 20%
or more of the outstanding Voting Shares; provided, however, that the
term "Acquiring Person" shall not include:
(i) Meridian or any Subsidiary of Meridian;
(ii) any Person who becomes the Beneficial owner of 20% or more of
the outstanding Voting Shares as a result of one or any
combination of (A) an acquisition or redemption by Meridian of
Voting Shares of any class which, by reducing the number of
Voting Shares outstanding, increases the proportionate number
of Voting Shares Beneficially owned by such Person to 20% or
more of the Voting Shares then outstanding, (B) Permitted Bid
Acquisitions, (C) Pro Rata Acquisitions, or (D) Exempt
Acquisitions; provided, however, that if a Person becomes the
Beneficial owner of 20% or more of the outstanding Voting
Shares by reason of one or any combination of the operation of
(A), (B), (C) or (D) above and such Person thereafter becomes
the Beneficial owner of more than 1% of the number of
outstanding Voting Shares other than pursuant to one or more
of any combination of (A), (B), (C) or (D) above, as the case
may be, then as of the date such Person becomes the Beneficial
owner of such additional Voting Shares, such Person shall
become an "Acquiring Person";
(iii) for a period of ten calendar days after the Disqualification
Date (as defined below), any Person who becomes the Beneficial
owner of 20% or more of the outstanding Voting Shares as a
result of such Person becoming disqualified from relying on
Clause 1.1(f)(B) solely because such Person is making or has
announced a current intention to make a Take-over Bid or any
plan or proposal relating thereto or resulting therefrom,
either alone or by acting jointly or in concert with any other
Person. For the purposes of this definition, "Disqualification
Date" means the first date of a public announcement of facts
indicating that any Person is making or has announced a
current intention to make, has participated in, has made,
proposes or intends to make or is participating in a Take-over
Bid;
(iv) an underwriter or member of a banking or selling group that
becomes the Beneficial owner of 20% or more of the Voting
Shares in connection with a distribution of securities of
Meridian; or
(v) a Person (a "Grandfathered Person") who is the Beneficial
owner of more than 20% of the outstanding Voting Shares
determined as at the Record Time and is not an Acquiring
Person as that term is defined in the shareholder rights plan
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agreement dated as of July 31, 1996 between Meridian and The
Trust Company of the Bank of Montreal, provided, however, that
this exception shall not be, and shall cease to be, applicable
to a Grandfathered Person in the event that such Grandfathered
Person shall, after the Record Time: (1) cease to own more
than 20% of the outstanding Voting Shares; or (2) become the
Beneficial owner of any additional Voting Shares that
increases its Beneficial ownership of Voting Shares by more
than 1% of the number of Voting Shares outstanding as at the
Record Time, other than through an acquisition to which a
Person becomes a Beneficial Owner of additional Common Shares
or Voting Shares by reason of one or any combination of the
operation of Clauses 1.1(a)(ii)(A), (B), (C) or (D).
(b) "AFFILIATE", when used to indicate a relationship with a specified
Person, shall mean a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, such a specified Person.
(c) "AGREEMENT" means this shareholder rights plan agreement, as amended or
supplemented from time to time;
(d) "ANNUAL CASH DIVIDEND" means cash dividends paid in any fiscal year of
Meridian, to the extent that such cash dividends do not exceed in the
aggregate, the greatest of:
(i) 200% of the aggregate amount of cash dividends declared
payable by Meridian on its Common Shares in its immediately
preceding fiscal year;
(ii) 300% of the arithmetic mean of the aggregate amounts of the
annual cash dividends declared payable by Meridian on its
Common Shares in its three immediately preceding fiscal years;
(iii) 100% of the aggregate consolidated net income of Meridian,
before extraordinary items, for its immediately preceding
fiscal year;
(e) "ASSOCIATE" means, when used to indicate a relationship with a
specified Person, a spouse of that Person, any Person of the same or
opposite sex with whom that Person is living in a conjugal relationship
outside marriage, a child of that Person, or a relative of that Person
who has the same residence as that Person;
(f) a Person shall be deemed the "BENEFICIAL OWNER" of, and to have
"BENEFICIAL OWNERSHIP" of, and to "BENEFICIALLY OWN",
(i) any securities as to which such Person or any of such Person's
Affiliates or Associates is the owner at law or in equity;
(ii) any securities as to which such Person or any of such Person's
Affiliates or Associates has the right to become the owner at
law or in equity to acquire (whether such right is exercisable
immediately or within a period of 60 days thereafter and
whether or not on condition or the happening of any
contingency)
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pursuant to any agreement, arrangement, pledge or
understanding, whether or not in writing (other than customary
agreements with and between underwriters and/or banking group
members and/or selling group members with respect to a
distribution of securities and other than pledges of
securities in the ordinary course of business), or upon the
exercise of any conversion right, exchange right, share
purchase right (other than the Rights), warrant or option; and
(iii) any securities which are Beneficially owned within the meaning
of Clauses 1.1(f)(i) or (ii) by any other Person with whom
such Person is acting jointly or in concert;
provided, however, that a Person shall not be deemed the "Beneficial
owner" of, or to have "Beneficial ownership" of, or to "Beneficially
own", any security:
(A) because such security has been deposited or
tendered pursuant to any Take-over Bid made
by such Person, made by any of such Person's
Affiliates or Associates or made by any
other Person referred to in Clause
1.1(f)(iii), until the earliest of such
deposited or tendered security has been
taken up or paid for;
(B) because such Person, any of such Person's
Affiliates or Associates or any other Person
referred to in Clause 1.1(f)(iii), holds
such security provided that, (1) the
ordinary business of any such Person (the
"Investment Manager") includes the
management of investment funds for others
(which others, for greater certainty, may
include or be limited to one or more
employee benefit plans or pension plans) and
such security is held by the Investment
Manager in the ordinary course of such
business in the performance of such
Investment Manager's duties for the account
of any other Person (a "Client"); or (2)
such Person (the "Trust Company") is
licensed to carry on the business of a trust
company under applicable laws and, as such,
acts as trustee or administrator or in a
similar capacity in relation to the estates
of deceased or incompetent Persons (each an
"Estate Account") or in relation to other
accounts (each an "Other Account"), and
holds such security in the ordinary course
of such duties, such Estate Accounts or for
such Other Accounts; or (3) such Person is
established by statute for purposes that
include, and the ordinary business or
activity of such Person (the "Statutory
Body") includes, the management of
investment funds for employee benefit plans,
pension plans, insurance plans or various
public bodies; or (4) such Person (the
"Administrator") is the administrator or
trustee of one or more pension funds, plans
or related trusts (a "Plan") registered
under the laws of Canada or any province
thereof or the laws of the United States of
America or any state thereof or is a Plan;
or (5) such Person is a Crown agent or
agency;
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5
provided, in any of the above cases, that the Investment Manager, the
Trust Company, the Statutory Body, the Administrator, the Plan, or the
Crown agent or agency as the case may be, is not then making a Takeover
Bid or has not then announced an intention to make a Take-over Bid,
other than an Offer to Acquire Voting Shares or other securities by
means of a distribution by Meridian or by means of ordinary market
transactions (including pre-arranged trades entered into in the
ordinary course of business to such Person) executed through the
facilities of a stock exchange or organized over-the-counter market,
alone or by acting jointly or in concert with any other Person;
(C) because such Person is (1) a Client of the
same Investment Manager as another Person on
whose account the Investment Manager holds
such security, (2) an Estate Account or an
Other Account of the same Trust Company as
another Person on whose account the Trust
Company holds such security, or (3) a Plan
with the same Administrator as another Plan
on whose account the Administrator holds
such security;
(D) where such Person is, (1) a Client of an
Investment Manager and such security is
owned at law or in equity by the Investment
Manager, or (2) an Estate Account or an
Other Account of a Trust Company and such
security is owned at law or in equity by the
Trust Company, or (3) a Plan and such
security is owned at law or in equity by the
Administrator of the Plan;
(E) such security has been agreed to be
deposited or tendered pursuant to a Lock-up
Agreement to any Take-over Bid made by such
Person, made by any of such Person's
Affiliates or Associates or made by any
other Person acting jointly or in concert
with such Person until such deposited or
tendered security has been taken up or paid
for, whichever shall first occur; or
(F) such Person is a registered holder of such
security as a result of carrying on the
business of, or acting as a nominee of, a
securities depositary.
(g) "BOARD" means the board of directors of Meridian or any duly
constituted and empowered committee thereof;
(h) "BUSINESS DAY" means any day other than a Saturday, Sunday or a day on
which banks in Toronto are authorized or obligated by law to close.
(i) "CBCA" means the Canada Business Corporations Act, R.S.C. 1985, C. 44,
as amended, and the regulations made thereunder, and any comparable or
successor laws or regulations thereto;
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(j) "CANADIAN DOLLAR EQUIVALENT" of any amount which is expressed in United
States Dollars means, on any date, the Canadian dollar equivalent of
any such amount determined by multiplying such amount by the U.S.
Canadian Exchange Rate in effect on such date;
(k) "CANADIAN U.S. EXCHANGE RATE" means, on any date, the inverse of the
U.S. Canadian Exchange Rate in effect on such date;
(l) "CLOSE OF BUSINESS" on any given date means the time on such date (or,
if such date is not a Business Day, the time on the next Business Day)
at which the principal transfer office in Toronto of the transfer agent
for the Common Shares (or, after the Separation Time, the principal
transfer office in Toronto of the Rights Agent) is closed to the
public;
(m) "COMMON SHARES" means the common shares in the capital of Meridian;
(n) "COMPETING PERMITTED BID" means a Take-over Bid that:
(i) is made after another Permitted Bid has been made and prior to
the expiry of that other Permitted Bid;
(ii) satisfies all components of the definition of a Permitted Bid
other than the requirements set out in clause (ii) of the
definition of a Permitted Bid; and
(iii) contains, and the take-up and payment for securities tendered
or deposited is subject to, an irrevocable and unqualified
provision that no Voting Shares will be taken up or paid for
pursuant to the Take over Bid prior to the dose of business on
a date that is no earlier than the later of: (a) 21 days after
the date of the Take-over Bid; and (b) the 60th day after the
earliest date on which any other Permitted Bid that is then in
existence was made;
(o) "CONTROLLED" a corporation is "controlled" by another Person or two or
more Persons acting jointly or in concert if:
(i) securities entitled to vote in the election of directors
carrying more than 50% of the votes for the election of
directors are held, directly or indirectly, by or on behalf of
the other Person or two or more Persons acting jointly or in
concert; and
(ii) the votes carried by such securities are entitled, if
exercised, to elect a majority of the board of directors of
such corporation;
and "CONTROLS", "CONTROLLING" and "UNDER COMMON CONTROL WITH" shall be
interpreted accordingly;
(p) "CO-RIGHTS AGENTS" has the meaning given in Subsection 4.1(a);
(q) "DISPOSITION DATE" has the meaning given in Subsection 5.1(a);
<PAGE> 9
7
(r) "DIVIDEND REINVESTMENT ACQUISITION" means an acquisition of Voting
Shares of any class pursuant to a Dividend Reinvestment Plan;
(s) "DIVIDEND REINVESTMENT PLAN" means a regular dividend reinvestment or
other plan of Meridian made available by Meridian to holders of its
securities and to holders of securities of a Subsidiary of Meridian,
where such plan permits the holder to direct that some or all of:
(i) dividends paid in respect of shares of any class of Meridian
or a Subsidiary;
(ii) proceeds of redemption of shares of Meridian or a Subsidiary;
(iii) interest paid on evidences of indebtedness of Meridian or a
Subsidiary; or
(iv) optional cash payments;
be applied to the purchase from Meridian of Common Shares;
(t) "ELECTION TO EXERCISE" has the meaning given in Subsection 2.2(d);
(u) "EFFECTIVE TIME" means the earlier of:
(1) the close of business on July 30, 1999;
(2) the date that an Acquiring Person has become an Acquiring
Person; and
(3) the date that an event occurs that would give rise to the
subsequent separation of rights pursuant to subsections
1.1(uu) and 2.2 of the rights agreement dated as of the 31st
day of July, 1996 between Meridian Gold Inc. and The Trust
Company of Bank of Montreal and, for this purpose,
disregarding the expiration time under that agreement;
(v) "EXEMPT ACQUISITION" means a share acquisition in respect of which the
Board has waived the application of Section 3.1 pursuant to the
provisions of Subsections 5.1(a), (b) or (e);
(w) "EXERCISE PRICE" means, as of any date, the price at which a holder may
purchase the securities issuable upon exercise of one whole Right
which, until adjustment thereof in accordance with the terms of this
Agreement, shall be $25.00;
(x) "EXPANSION FACTOR" has the meaning given in Subsection 2.3(a);
(y) "FLIP-IN EVENT" means a transaction in or pursuant to which any Person
becomes an Acquiring Person;
(z) "HOLDER" has the meaning given in Section 2.8;
<PAGE> 10
8
(aa) "INDEPENDENT SHAREHOLDERS" means holders of any Voting Shares, other
than (a) any Acquiring Person, (b) any Offeror, other than a Person who
pursuant to Clause 1.1(f) is not deemed to beneficially own the Voting
Shares held by such Person, (c) any Affiliate or Associate of any
Acquiring Person or Offeror, (d) any Person acting jointly or in
concert with any Acquiring Person or Offeror, and (e) any employee
benefit plan, stock purchase plan, deferred profit sharing plan and any
similar plan or trust for the benefit of employees of Meridian or a
Subsidiary of Meridian, unless the beneficiaries of the plan or trust
direct the manner in which the Voting Shares are to be voted or
withheld from voting direct whether the Voting Shares are to be
tendered to a Take-over Bid;
(bb) LOCK-UP AGREEMENT" means an agreement between an Offeror, any of its
Affiliates or Associates or any other Person acting jointly or in
concert with the Offeror and a Person (the "Locked-up Person") who is
not an Affiliate or Associate of the Offeror or a Person acting jointly
or in concert with the Offeror whereby the Locked-up Person agrees to
deposit or tender the Voting Shares held by the Locked-up Person to the
Offeror's Take-over Bid or to any Take-over Bid made by any of the
Offeror's Affiliates or Associates or made by any other Person acting
jointly or in concert with the Offeror (the "Lock-up Bid"), provided
that:
(i) the agreement:
(A) permits the Locked-up Person to withdraw the Voting
Shares from the agreement in order to tender or
deposit the Voting Shares to another Take-over Bid or
to support another transaction that contains an
offering price for each Voting Share that is higher
than the offering price contained in or proposed to
be contained in the Lock-up Bid; or
(B) permits the Locked-up Person to withdraw the Voting
Shares from the agreement in order to tender or
deposit the Voting Shares to another Take-over Bid or
to support another transaction that contains an
offering price for each Voting Share that exceeds by
as much as or more than a specified amount (the
"Specified Amount") the offering price for each
Voting Share contained in or proposed to be contained
in the Lock-up Bid; and (b) does not by its terms
provide for a Specified Amount that is greater than
7% of the offering price contained in or proposed to
be contained in the Lock-up Bid;
and, for greater clarity, an agreement may contain a right of
first refusal or require a period of delay to give an Offeror
an opportunity to match a higher price in another take-over
bid or other similar limitation on a Locked-up Person as long
as the Locked-up Person can accept another bid or tender to
another transaction;
(ii) no "break-up" fees, "top-up" fees, penalties or other amounts
that exceed in the aggregate one-half of the cash equivalent
of any amount in excess of the amount offered under the
Lock-up Bid and that the Locked-up Person receives pursuant to
<PAGE> 11
9
another Take-over Bid or transaction shall be payable pursuant
to the agreement in the event that the Locked-up Person fails
to tender Voting Shares pursuant thereto in order to accept
the other Take-over Bid or support another transaction.
(cc) "MARKET PRICE" per share of any securities on any date of determination
means the average of the daily closing sale prices per share of such
class of securities (determined as described below) on each of the 20
consecutive Trading Days through and including the Trading Day
immediately preceding such date; provided, however, that if an event of
a type analogous to any of the events described in Section 2.3 shall
have caused the closing sale prices used to determine the Market Price
on any Trading Days not to be fully comparable with the closing sale
price on such date of determination or, if the date of determination is
not a Trading Day, on the immediately preceding Trading Day, each such
closing sale price so used shall be appropriately adjusted in a manner
analogous to the applicable adjustment provided for in Section 2.3 in
order to make it fully comparable with the closing sale price on such
date of determination or, if the date of determination is not a Trading
Day, on the immediately preceding Trading Day. The closing sale price
per share of any securities on any date shall be:
(i) the closing board lot sale price per share or, if such price
is not available, the average of the closing bid and asked
prices, for each of such securities as reported by the
principal Canadian securities exchange (as determined by
volume of trading) on which such securities are listed or
admitted to trading, or if for any reason neither of such
prices is available on such day or the securities are not
listed or admitted to trading on a Canadian securities
exchange, the closing board lot sale price per share or, if
such price is not available, the average of the closing bid
and asked prices, for each security as reported by the
principal national securities exchange (as determined by the
volume of trading) on which such securities are listed or
admitted for trading;
(ii) if for any reason none of such prices is available on such
date or the securities are not listed or admitted to trading
on a Canadian stock exchange or a national securities
exchange, the last sale price, or in case no sale takes place
on such date, the average of the high bid and low asked prices
for each of such securities in the over-the-counter market, as
quoted by any reporting system then in use; or
(iii) if for any reason none of such prices is available on such day
or the securities are not listed or admitted to trading on a
Canadian stock exchange or a national securities exchange or
quoted by any such reporting system, the average of the
closing bid and asked prices as furnished by a professional
market maker making a market in the securities;
provided, however, that if on any such date none of such prices is
available, the closing sale price per share of such securities on such
date shall mean the fair value per share of the securities on such date
as determined by a nationally or internationally recognized investment
dealer or investment banker and provided further that if an event of a
type analogous to any of the events described in Section 2.3 hereof
shall have caused any price
<PAGE> 12
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used to determine the Market Price on any Trading Day not to be fully
comparable with the price as so determined on the Trading Day
immediately preceding such date of determination, each such price so
used shall be appropriately adjusted in a manner analogous to the
applicable adjustment provided for in Section 2.3 hereof in order to
make it fully comparable with the price on the Trading Day immediately
preceding such date of determination. The Market Price shall be
expressed in Canadian dollars and, if initially determined in respect
of any day forming part of the 20 consecutive Trading Day period in
question in United States dollars, such amount shall be translated into
Canadian dollars on such date at the Canadian Dollar Equivalent
thereof.
(dd) "MERIDIAN" means Meridian Gold Inc., together, where the context
requires, with its subsidiaries;
(ee) "NOMINEE" has the meaning given in Subsection 2.2(c);
(ff) "OFFER TO ACQUIRE" includes:
(i) an offer to purchase or a solicitation of an offer to sell
Voting Shares of any class or classes, and
(ii) an acceptance of an offer to sell Voting Shares of any class
or classes, whether or not such offer to sell has been
solicited,
or any combination thereof, and the Person accepting an offer to sell
shall be deemed to be making an Offer to Acquire to the Person that
made the offer to sell;
(gg) "OFFEROR" means a Person who has announced and has not withdrawn an
intention to make or who has made and has not withdrawn a Take-over
Bid, other than a Person who has completed a Permitted Bid, a Competing
Permitted Bid or an Exempt Acquisition;
(hh) "OFFEROR'S SECURITIES" means Voting Shares Beneficially owned by an
Offeror on the date of the Offer to Acquire;
(ii) "PERMITTED BID" means a Take-over Bid made by an Offeror that is made
by means of a Take-over Bid circular and which also complies with the
following additional provisions:
(i) the Take-over Bid is made to all holders of Voting Shares as
registered on the books of Meridian, other than the Offeror;
(ii) the Take-over Bid contains, and the take-up and payment for
securities tendered or deposited is subject to, an irrevocable
and unqualified provision that no Voting Shares will be taken
up and paid for pursuant to the Take-over Bid (A) prior to the
close of business on a date which is not less than 60 days
following the date of the Take-over Bid and (B) unless at such
date more than 50% of the Voting Shares held by Independent
Shareholders shall have been deposited or tendered pursuant to
the Take-over Bid and not withdrawn;
<PAGE> 13
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(iii) unless the Take-over Bid is withdrawn, the Take-over Bid
contains an irrevocable and unqualified provision that Voting
Shares may be deposited pursuant to such Take-over Bid at any
time during the period described in Clause 1.1(ii)(ii) and
that any Voting Shares deposited pursuant to the Take-over Bid
may be withdrawn until taken up and paid for; and
(iv) unless the Take-over Bid is withdrawn, the Take-over Bid
contains an irrevocable and unqualified provision that in the
event that the deposit condition set forth in Clause
1.1(ii)(ii) is satisfied the Offeror will make a public
announcement of that fact and the Take-over Bid will remain
open for deposits and tenders of Voting Shares for not less
than ten Business Days from the date of such public
announcement;
(jj) "PERMITTED BID ACQUISITION" means an acquisition of Voting Shares made
pursuant to a Permitted Bid or a Competing Permitted Bid;
(kk) "PERSON" includes an individual, firm, association, trustee, executor,
administrator, legal personal representative, body corporate,
corporation, trust, partnership, joint venture, syndicate or other form
of unincorporated association, a government and its agencies or
instrumentalities, any entity or group whether or not having legal
personality and any of the foregoing acting in any derivative,
representative or fiduciary capacity;
(ll) "PRO RATA ACQUISITION" means an acquisition of Voting Shares pursuant
to: (i) a Dividend Reinvestment Acquisition; or (ii) pursuant to a
Dividend Reinvestment Plan; or (iii) pursuant to the receipt and/or
exercise of rights issued by Meridian to all the holders of Voting
Shares of Meridian to subscribe for or purchase Voting Shares of
Meridian, provided that such rights are acquired directly from Meridian
as part of a rights offering and not from any other Person; or (iv)
pursuant to a distribution by Meridian to the public of Voting Shares,
or securities convertible into or exchangeable for Voting Shares (and
the conversion or exchange of such convertible or exchangeable
securities) made pursuant to a prospectus or a distribution by way of
private placement by Meridian, provided that the Person does not
thereby acquire a greater percentage of such Voting Shares, or
securities convertible or exchangeable for Voting Shares, than the
Person's percentage of Voting Shares Beneficially owned immediately
prior to such acquisition;
(mm) "RECORD TIME" has the meaning set forth in the recitals to this
Agreement;
(nn) "REDEMPTION PRICE" has the meaning given in Subsection 5.1(c);
(oo) "RIGHT" means a right to purchase a Common Share of Meridian, upon the
terms and subject to the conditions set forth in this Agreement;
(pp) "RIGHTS CERTIFICATE" means the certificates representing the Rights
after the Separation Time, which shall be substantially in the form of
Attachment 1;
<PAGE> 14
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(qq) "RIGHTS HOLDERS' SPECIAL MEETING" means a meeting of the holders of
Rights called by the Board for the purpose of approving a supplement or
amendment to this Agreement pursuant to Subsection 5.4(c);
(rr) "RIGHTS REGISTER" has the meaning given in Subsection 2.6(a);
(ss) "SECURITIES ACT (ONTARIO)" means the Securities Act, R.S.0 1990, c.S.5,
as amended, and the regulations thereunder, and any comparable or
successor laws or regulations thereto;
(tt) "SEPARATION TIME" means the close of business on the tenth Trading Day
after the earlier of:
(i) the Stock Acquisition Date;
(ii) the date of the commencement of or first public announcement
of the intent of any Person (other than Meridian or any
Subsidiary of Meridian) to commence a Take-over Bid (other
than a Permitted Bid or a Competing Permitted Bid, as the case
may be),
(iii) the date upon which a Permitted Bid or Competing Permitted Bid
cease to be such,
or such later time as may be determined by the Board, provided that, if
any Take-over Bid referred to in this Clause (ii) expires, is
cancelled, terminated or otherwise withdrawn prior to the Separation
Time, such Take-over Bid shall be deemed, for the purposes of this
definition, never to have been made;
(uu) "SPECIAL MEETING" means a special meeting of the holders of Voting
Shares, called by the Board for the purpose of approving a supplement,
amendment or variation to this Agreement pursuant to Subsections 5.4(b)
or 5.4(c);
(vv) "STOCK ACQUISITION DATE" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to section 101 of the
Securities Act (Ontario) or section 13(d) of the U.S. Exchange Act) by
Meridian or an Acquiring Person that an Acquiring Person has become
such;
(ww) "SUBSIDIARY": a corporation is a Subsidiary of another corporation if:
(i) it is controlled by: (A) that other, (B) that other and one or
more corporations each of which is controlled by that other,
or (C) two or more corporations each of which is controlled by
that other, or
(ii) it is a Subsidiary of a corporation that is that other's
Subsidiary;
<PAGE> 15
13
(xx) "TAKE-OVER BID" means an Offer to Acquire Voting Shares or securities
convertible into Voting Shares if, assuming that the Voting Shares or
convertible securities subject to the Offer to Acquire are acquired and
are Beneficially owned at the date of such Offer to Acquire by the
Person making such Offer to Acquire, such Voting Shares (including
Voting Shares that may be acquired upon conversion of securities
convertible into Voting Shares) together with the Offeror's Securities,
constitute in the aggregate 20% or more of the outstanding Voting
Shares at the date of the offer to Acquire;
(yy) "TRADING DAY", when used with respect to any securities, means a day on
which the principal Canadian securities exchange on which, such
securities are listed or admitted to trading is open for the
transaction of business or, if the securities are not listed or
admitted to trading on any Canadian securities exchange, a Business
Day;
(zz) "U.S. CANADIAN EXCHANGE RATE" means, on any date:
(i) if on such date the Bank of Canada sets an average noon spot
rate of exchange for the conversion of one United States
dollar into Canadian dollars, such rate; and
(ii) in any other case, the rate for such date for the conversion
of one United States dollar into Canadian dollars calculated
in such manner as may be determined by the Board from time to
time acting in good faith;
(aaa) "U.S. DOLLAR EQUIVALENT" of any amount which is expressed in Canadian
dollars means, on any date, the United States dollar equivalent of such
amount determined by multiplying such amount by the Canadian U.S.
Exchange Rate in effect on such date; and
(bbb) "VOTING SHARES" means the Common Shares and any other shares in the
capital of Meridian entitled to vote generally in the election of all
elected directors.
1.2 CURRENCY
All sums of money which are referred to in this Agreement are expressed in
lawful money of Canada, unless otherwise specified.
1.3 HEADINGS
The division of this Agreement into Articles, Sections, Subsections, Clauses,
Paragraphs, Subparagraphs or other portions of this Agreement and the insertion
of headings, subheadings and a table of contents are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
<PAGE> 16
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1.4 CALCULATION OF NUMBER AND PERCENTAGE OF BENEFICIAL OWNERSHIP OF
OUTSTANDING VOTING SHARES
For purposes of this Agreement, the percentage of Voting Shares of any class
Beneficially owned by any Person, shall be and be deemed to be the product
determined by the formula 100 x A/B, where:
A = the number of votes for the election of all directors
generally attaching to the Voting Shares Beneficially owned
by such Person; and
B = the number of votes for the election of all directors
generally attaching to all outstanding Voting Shares.
Where any Person is deemed to Beneficially own unissued Voting Shares, such
Voting Shares shall be deemed to be outstanding for the purpose of calculating
the percentage of Voting Shares owned by such Person.
1.5 ACTING JOINTLY OR IN CONCERT
For purposes of this Agreement, a Person is acting jointly or in concert with
every Person who, as a result of any agreement, commitment or understanding
whether formal or informal, with the first Person, acquires or offers to acquire
Voting Shares (other than customary agreements with and between underwriters
and/or banking group members and/or selling group members with respect to a
public offering or private placement of securities or pledges of securities in
the ordinary course of business.
1.6 GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
Wherever in this Agreement reference is made to generally accepted accounting
principles, such reference shall be deemed to be the recommendations at the
relevant time of the Canadian Institute of Chartered Accountants, or any
successor institute, applicable on a consolidated basis (unless otherwise
specifically provided in this Agreement to be applicable on an unconsolidated
basis) as at the date on which a calculation is made or required to be made in
accordance with generally accepted accounting principles. Where the character or
amount of any asset or liability or item of revenue or expense is required to be
determined, or any consolidation or other accounting computation is required to
be made for the purpose of this Agreement or any document, such determination or
calculation shall, to the extent applicable and except as otherwise specified in
this Agreement or as otherwise agreed in writing by the parties, be made in
accordance with generally accepted accounting principles applied on a consistent
basis.
<PAGE> 17
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ARTICLE 2 - THE RIGHTS
2.1 LEGEND ON COMMON SHARE CERTIFICATES
Certificates for the Common Shares that are issued after the Record Time but
prior to the earlier of the Separation Time and the Expiration Time, shall also
evidence one Right for each Common Share represented thereby and shall bear the
following legend:
"Until the Separation Time (as defined in the Rights Agreement referred
to below), this certificate also evidences rights of the holder
described in a Shareholder Rights Plan Agreement dated as of March 19,
1999 (the "Rights Agreement") between Meridian Gold Inc. (the
"Corporation") and The Trust Company of Bank of Montreal, the terms of
which are incorporated herein by reference and a copy of which is on
file at the registered office of the Corporation. Under certain
circumstances set out in the Rights Agreement, the rights may expire,
may become null and void or may be evidenced by separate certificates
and no longer evidenced by this certificate. The Corporation will mail
or arrange for the mailing of a copy of the Rights Agreement to the
holder of this certificate without charge as soon as practicable after
receipt of a written request therefor."
2.2 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS; DETACHMENT OF RIGHTS
(a) Subject to adjustment as set forth below, each Right will entitle the
holder thereof, from and after the Separation Time and prior to the
Expiration Time, to purchase one Common Share for the Exercise Price
(and the Exercise Price and number of Common Shares are subject to
adjustment as set forth below).
Notwithstanding any other term of this Agreement, any Rights held by
Meridian or any of its Subsidiaries shall be void.
(b) Until the Separation Time,
(i) the Rights shall not be exercisable and no Right may be
exercised; and
(ii) each Right will be evidenced by the certificate for the
associated Common Share of Meridian registered in the name of
the holder thereof (which certificate shall also be deemed to
represent a Rights Certificate) and will be transferable only
together with, and will be transferred by a transfer of, such
associated Common Share of Meridian.
(c) From and after the Separation Time and prior to the Expiration Time:
(i) the Rights shall be exercisable; and
(ii) the registration and transfer of Rights shall be separate from
and independent of Common Shares.
<PAGE> 18
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Promptly following the Separation Time, Meridian will prepare and the
Rights Agent will mail to each holder of record of Common Shares as of
the Separation Time (other than an Acquiring Person and other Person
whose Rights are or become void pursuant to the provisions of
subsection 3.1(b) hereof and, in respect of any Rights Beneficially
owned by such Acquiring Person which are not held of record by such
Acquiring Person, the holder of record of such Rights (a "Nominee")),
at such holder's address as shown by the records of Meridian (Meridian
hereby agreeing to furnish copies of such records to the Rights Agent
for this purpose): (x) a Rights Certificate appropriately completed,
representing the number of Rights held by such holder at the Separation
Time and having such marks of identification or designation and such
legends, summaries or endorsements printed thereon as Meridian may deem
appropriate and as are not inconsistent with the terms of this
Agreement, or as may be required to comply with any law, rule or
regulation or with any rule or regulation of any self-regulatory
organization, stock exchange or quotation system on which the Rights
may from time to time be listed or traded, or to conform to usage; and
(y) a disclosure statement describing the Rights, provided that a
Nominee shall be sent the materials provided for in (x) and (y) in
respect of all Common Shares held of record by it which are not
Beneficially owned by an Acquiring Person. In order for Meridian to
determine whether any Person is holding Common Shares which are
Beneficially owned by another Person, Meridian may require such first
mentioned Person to furnish such information and documentation as
Meridian deems necessary or appropriate in order to make such
determination.
(d) Rights may be exercised, in whole or in part, on any Business Day after
the Separation Time and prior to the Expiration Time by submitting to
the Rights Agent in the manner specified in the Rights Certificate:
(i) the Rights Certificate evidencing such Rights;
(ii) an election to exercise such Rights (an "Election to
Exercise") substantially in the form attached to the Rights
Certificate appropriately completed and executed by the holder
or his executors or administrators or other personal
representatives or his or their legal attorney duly appointed
by an instrument in writing in form and executed in a manner
satisfactory to the Rights Agent; and
(iii) payment by certified cheque, banker's draft or money order
payable to the order of Meridian, of a sum equal to the
Exercise Price multiplied by the number of Rights being
exercised and a sum sufficient to cover any withholding taxes
payable by a holder who is a non-resident of Canada for
purposes of the Income Tax Act (Canada) in respect of the
exercise of the Rights or the fact that the Rights have been
exercised and any transfer tax or similar charge which may be
payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance or delivery of
certificates for Common Shares in a name other than that of
the holder of the Rights being exercised.
<PAGE> 19
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(e) Upon receipt of a Rights Certificate, together with a completed
Election to Exercise executed in accordance with Clause 2.2(d)(ii),
which does not indicate that such Right is null and void as provided by
Subsection 3.1(b), and payment as set forth in Clause 2.2(d)(iii), the
Rights Agent (unless otherwise instructed by Meridian in the event that
Meridian is of the opinion that the Rights cannot be exercised in
accordance with this Agreement) will thereupon promptly:
(i) requisition from the transfer agent certificates representing
the number of such Common Shares to be purchased (Meridian
hereby irrevocably authorizing its transfer agents to comply
with all such requisitions);
(ii) when appropriate, requisition from Meridian the amount of cash
to be paid in lieu of issuing fractional Common Shares;
(iii) after receipt of the certificates referred to in Clause
2.2(e)(i), deliver the same to or upon the order of the
registered holder of such Rights Certificates, registered in
such name or names as may be designated by such holder;
(iv) when appropriate, after receipt, deliver the cash referred to
in Clause 2.2(e)(ii) to or to the order of the registered
holder of such Rights Certificate; and
(v) tender to Meridian all payments received on the exercise of
the Rights.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised (subject to
Subsection 5.5(a)) will be issued by the Rights Agent to such holder or
to such holder's duly authorized assigns.
(g) Meridian covenants and agrees that it will:
(i) take all such action as may be necessary and within its power
to ensure that all Common Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for
such Common Shares (subject to payment of the Exercise Price),
be duly and validly authorized, executed, issued and delivered
and fully paid and non-assessable;
(ii) take all such action as may be necessary and within its power
to comply with the requirements of the CBCA, the Securities
Act (Ontario), and the securities laws or comparable
legislation of each of the provinces of Canada and any other
applicable law, rule or regulation, in connection with the
issuance and delivery of the Rights Certificates and the
issuance of any Common Shares upon exercise of Rights;
(iii) use reasonable efforts to cause all Common Shares issued upon
exercise of Rights to be listed on the principal stock
exchanges on which such Common Shares were traded immediately
prior to the Stock Acquisition Date;
<PAGE> 20
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(iv) cause to be reserved and kept available out of the authorized
and unissued Common Shares, the number of Common Shares that,
as provided in this Agreement, will from time to time be
sufficient to permit the exercise in full of all outstanding
Rights;
(v) pay when due and payable, if applicable, any and all federal,
provincial and municipal transfer taxes and similar charges
(not including any income or capital taxes of the holder or
exercising holder or any liability of Meridian to withhold
tax) which may be payable in respect of the original issuance
or delivery of the Rights Certificates, or certificates for
Common Shares to be issued upon exercise of any Rights,
provided that Meridian shall not be required to pay any
transfer tax or charge which may be payable in respect of any
transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for
Common Shares in a name other than that of the holder of the
Rights being transferred or exercised; and
(vi) after the Separation Time, except as permitted by Section 5.1
not take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable
that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
2.3 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS
The Exercise Price, the number and kind of securities subject to purchase upon
exercise of each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 2.3.
Meridian shall provide the Rights Agent with notice of any such adjustment.
(a) In the event Meridian shall at any time after the date of this
Agreement:
(i) declare or pay a dividend on Common Shares payable in Common
Shares (or other securities exchangeable for or convertible
into or giving a right to acquire Common Shares or other
capital stock) other than pursuant to any optional stock
dividend program;
(ii) subdivide or change the then outstanding Common Shares into a
greater number of Common Shares;
(iii) consolidate or change the then outstanding Common Shares into
a smaller number of Common Shares; or
(iv) issue any Common Shares (or other securities exchangeable for
or convertible into or giving a right to acquire Common Shares
or other capital stock) in respect of, in lieu of or in
exchange for existing Common Shares except as otherwise
provided in this Section 2.3,
<PAGE> 21
19
the Exercise Price and the number of Rights outstanding, or, if the
payment or effective date therefor shall occur after the Separation
Time, the securities purchasable upon exercise of Rights shall be
adjusted as of the payment or effective date in the manner set forth
below. If an event occurs which would require an adjustment under both
this Section 2.3 and subsection 3.1(a), the adjustment provided for in
this Section 2.3 shall be in addition to, and shall be made prior to,
any adjustment required under subsection 3.1(a).
If the Exercise Price and number of Rights outstanding are to be
adjusted: (x) the Exercise Price in effect after such adjustment will
be equal to the Exercise Price in effect immediately prior to such
adjustment divided by the number of Common Shares (or other capital
stock) (the "Expansion Factor") that a holder of one Common Share
immediately prior to such dividend, subdivision, change, consolidation
or issuance would hold thereafter as a result thereof; and (y) each
Right held prior to such adjustment will become that number of Rights
equal to the Expansion Factor, and the adjusted number of Rights will
be deemed to be distributed among the Common Shares with respect to
which the original Rights were associated (if they remain outstanding)
and the shares issued in respect of such dividend, subdivision, change,
consolidation or issuance, so that each such Common Share (or other
capital stock) will have exactly one Right associated with it.
For greater certainty, if the securities purchasable upon exercise of
Rights are to be adjusted, the securities purchasable upon exercise of
each Right after such adjustment will be the securities that a holder
of the securities purchasable upon exercise of one Right immediately
prior to such dividend, subdivision, change, consolidation or issuance
would hold thereafter as a result of such dividend, subdivision,
change, consolidation or issuance.
If, after the Record Time and prior to the Expiration Time, Meridian
shall issue any shares of capital stock other than Common Shares in a
transaction of a type described in Clause 2.3(a)(i) or (iv), shares of
such capital stock shall be treated in this Agreement as nearly
equivalent to Common Shares as may be practicable and appropriate under
the circumstances and Meridian and the Rights Agent agree to amend this
Agreement in order to effect such treatment.
In the event Meridian shall at any time after the Record Time and prior
to the Separation Time issue any Common Shares otherwise than in a
transaction referred to in this Subsection 2.3(a), each such Common
Share so issued shall automatically have one new Right associated with
it, which Right shall be evidenced by the certificate representing such
associated Common Share.
(b) In the event Meridian shall at any time after the Record Time and prior
to the Separation Time fix a record date for the issuance of rights,
options or warrants to all holders of Common Shares entitling them (for
a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or securities convertible into
or exchangeable for or carrying a right to purchase Common Shares) at a
price per Common Share (or, if a security convertible into or
exchangeable for or carrying a right to purchase or subscribe for
Common Shares, having a conversion, exchange or exercise price,
including the price required to be paid to purchase such convertible or
exchangeable
<PAGE> 22
20
security or right per share) less than the Market Price per Common
Share on such record date, the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise Price
in effect immediately prior to such record date by a fraction:
(i) the numerator of which shall be the number of Common Shares
outstanding on such record date, plus the number of Common
Shares that the aggregate offering price of the total number
of Common Shares so to be offered (and/or the aggregate
initial conversion, exchange or exercise price of the
convertible or exchangeable securities or rights so to be
offered, including the price required to be paid to purchase
such convertible or exchangeable securities or rights) would
purchase at such Market Price per Common Share; and
(ii) the denominator of which shall be the number of Common Shares
outstanding on such record date, plus the number of additional
Common Shares to be offered for subscription or purchase (or
into which the convertible or exchangeable securities or
rights so to be offered are initially convertible,
exchangeable or exercisable).
In case such subscription price may be paid by delivery of
consideration, part or all of which may be in a form other than cash,
the value of such consideration shall be as determined in good faith by
the Board, whose determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights Agent and the
holders of Rights. Such adjustment shall be made successively whenever
such a record date is fixed, and in the event that such rights, options
or warrants are not so issued, or if issued, are not exercised prior to
the expiration thereof, the Exercise Price shall be readjusted to the
Exercise Price which would then be in effect if such record date had
not been fixed, or to the Exercise Price which would be in effect based
upon the number of Common Shares (or securities convertible into, or
exchangeable or exercisable for Common Shares) actually issued upon the
exercise of such rights, options or warrants, as the case may be.
For purposes of this Agreement, the granting of the right to purchase
Common Shares (whether from treasury or otherwise) pursuant to the
Dividend Reinvestment Plan or any employee benefit, stock option or
similar plans shall be deemed not to constitute an issue of rights,
options or warrants by Meridian; provided, however, that, in all such
cases, the right to purchase Common Shares is at a price per share of
not less than 95% of the current market price per share (determined as
provided in such plans) of the Common Shares.
(c) In the event Meridian shall at any time after the Record Time and prior
to the Separation Time fix a record date for the making of a
distribution to all holders of Common Shares (including any such
distribution made in connection with a merger or amalgamation) of
evidences of indebtedness, cash (other than an annual cash dividend or
a dividend referred to in Section 2.3(a)(i), but including any dividend
payable in securities other than Common Shares), assets or rights,
options or warrants (excluding those referred to in Subsection 2.3(b)),
the Exercise Price to be in effect after such record date shall be
determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction:
<PAGE> 23
21
(i) the numerator of which shall be the Market Price per Common
Share on such record date, less the fair market value (as
determined in good faith by the Board, whose determination
shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the holders of
Rights), on a per share basis, of the portion of the cash,
assets, evidences of indebtedness, rights, options or warrants
so to be distributed; and
(ii) the denominator of which shall be such Market Price per Common
Share.
Such adjustments shall be made successively whenever such a record date
is fixed, and in the event that such a distribution is not so made, the
Exercise Price shall be adjusted to be the Exercise Price which would
have been in effect if such record date had not been fixed.
(d) Notwithstanding anything in this Agreement to the contrary, no
adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Exercise Price; provided, however, that any adjustments which by reason
of this Subsection 2.3(d) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under Section 2.3 shall be made to the nearest cent or to
the nearest ten-thousandth of a share. Notwithstanding the first
sentence of this Subsection 2.3(d), any adjustment required by Section
2.3 shall be made no later than the earlier of:
(i) three years from the date of the transaction which gives rise
to such adjustment; or
(ii) the Expiration Time.
(e) In the event Meridian shall at any time after the Record Time and prior
to the Separation Time issue any shares of capital stock (other than
Common Shares), or rights, options or warrants to subscribe for or
purchase any such capital stock, or securities convertible into or
exchangeable for any such capital stock in a transaction referred to in
Clauses 2.3(a)(i) or (iv) above, if the Board acting in good faith
determines that the adjustments contemplated by Subsections 2.3(a), (b)
and (c) above in connection with such transaction will not
appropriately protect the interests of the holders of Rights, the Board
may determine what other adjustments to the Exercise Price, number of
Rights and/or securities purchasable upon exercise of Rights would be
appropriate and " notwithstanding Subsections 2.3(a), (b) and (c)
above, such adjustments, rather than the adjustments contemplated by
Subsections 2.3(a), (b) and (c) above, shall be made. Subject to the
prior consent of the holders of the Voting Shares or the Rights as set
forth in subsection 5.4(b) or (c), Meridian and the Rights Agent shall
have authority upon receiving such consent to amend this Agreement as
appropriate to provide for such adjustments.
<PAGE> 24
22
(f) Each Right originally issued by Meridian subsequent to any adjustment
made to the Exercise Price hereunder shall evidence the right to
purchase, at the adjusted Exercise Price, the number of Common Shares
purchasable from time to time hereunder upon exercise of a Right
immediately prior to such issue, all subject to further adjustment as
provided in this Agreement.
(g) Irrespective of any adjustment or change in the Exercise Price or the
number of Common Shares issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to
express the Exercise Price per Common Share and the number of Common
Shares which were expressed in the initial Rights Certificates issued
hereunder.
(h) In any case in which this Section 2.3 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a
specified event, Meridian may elect to defer until the occurrence of
such event the issuance to the holder of any Right exercised after such
record date the number of Common Shares and other securities of
Meridian, if any, issuable upon such exercise over and above the number
of Common Shares and other securities of Meridian, if any, issuable
upon such exercise on the basis of the Exercise Price in effect prior
to such adjustment; provided, however, that Meridian shall deliver to
such holder an appropriate instrument evidencing such holder's right to
receive such additional shares (fractional or otherwise) or other
securities upon the occurrence of the event requiring such adjustment.
(i) Notwithstanding anything contained in this Section 2.3, Meridian shall
be entitled to make such reductions in the Exercise Price, in addition
to those adjustments expressly required by this Section 2.3, as and to
the extent that in their good faith judgment the Board shall determine
to be advisable, in order that any:
(i) consolidation or subdivision of Common Shares;
(ii) issuance (wholly or in part for cash) of Common Shares or
securities that by their term are convertible into or
exchangeable for Common Shares;
(iii) stock dividends; or
(iv) issuance of rights, options or warrants referred to in this
Section 2.3,
hereafter made by Meridian to holders of its Common Shares, shall not
be taxable to such shareholders.
(j) If, as a result of an adjustment made pursuant to Section 3.1, the
holder of any Right thereafter exercised shall become entitled to
receive any securities other than Common Shares, thereafter the number
of such other securities so receivable upon exercise of any Right and
the applicable Exercise Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as may
be practicable to the provisions with respect to the Common Shares
contained in the foregoing subsections of this Section 2.3
<PAGE> 25
23
and the provisions of this Agreement with respect to the Common Shares
shall apply on like terms to any such other securities;
(k) Whenever an adjustment to the Exercise Price or a change in the
securities purchasable upon the exercise of Rights is made pursuant to
this Section 2.3, the Corporation shall promptly:
(i) prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment;
(ii) file with the Rights Agent and with each transfer agent for
the Common Shares, a copy of such certificate; and
(iii) cause notice of the particulars of such adjustment or change
to be given to the holders of the Rights.
Failure to file such certificate or to cause such notice to be given as
aforesaid, or any defect therein, shall not affect the validity of any
such adjustment or change.
2.4 DATE ON WHICH EXERCISE IS EFFECTIVE
Each Person in whose name any certificate for Common Shares or other securities,
if applicable, is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Common Shares or other
securities, if applicable, represented thereon, and such certificate shall be
dated the date upon which the Rights Certificate evidencing such Rights was duly
surrendered in accordance with Subsection 2.2(d) (together with a duly completed
Election to Exercise) and payment of the Exercise Price for such Rights (and any
applicable transfer taxes and other governmental charges payable by the
exercising holder hereunder) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Common Share transfer books
of Meridian are closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Common Share transfer books of Meridian are
open.
2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS CERTIFICATES
(a) The Rights Certificates shall be executed on behalf of Meridian by its
Chairman of the Board, President or any of its Vice Presidents and by
its Secretary or one of its Assistant Secretaries under the corporate
seal of Meridian reproduced thereon. The signature of any of these
officers on the Rights Certificates may be manual or facsimile. Rights
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of Meridian shall bind
Meridian, notwithstanding that such individuals or any of them have
ceased to hold such offices either before or after the countersignature
and delivery of such Rights Certificates.
<PAGE> 26
24
(b) Promptly after Meridian learns of the Separation Time, Meridian will
notify the Rights Agent of such Separation Time and will deliver Rights
Certificates executed by Meridian to the Rights Agent for
countersignature, and the Rights Agent shall countersign (in a manner
satisfactory to Meridian) and send such Rights Certificates to the
holders of the Rights pursuant to Subsection 2.2(c). No Rights
Certificate shall be valid for any purpose until countersigned by the
Rights Agent.
(c) Each Rights Certificate shall be dated the date of its
countersignature.
2.6 REGISTRATION, TRANSFER AND EXCHANGE
(a) Meridian will cause to be kept a register (the "Rights Register") in
which, subject to such reasonable regulations as it may prescribe,
Meridian will provide for the registration and transfer of Rights. The
Rights Agent is hereby appointed registrar for the Rights (the "Rights
Registrar") for the purpose of maintaining the Rights Register for
Meridian and registering Rights and transfers of Rights and the Rights
Agent hereby accepts such appointment. In the event that the Rights
Agent shall cease to be the Rights Registrar, the Rights Agent will
have the right to examine the Rights Register at all reasonable times.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights
Certificate, and subject to Subsection 2.6(c), Meridian will execute,
and the Rights Agent will countersign and deliver, in the name of the
holder or the designated transferee or transferees, as required
pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as did the
Rights Certificates so surrendered.
(b) All Rights issued upon any registration of transfer or exchange of
Rights Certificates shall be the valid obligations of Meridian, and
such Rights shall be entitled to the same benefits under this Agreement
as the Rights surrendered upon such registration of transfer or
exchange.
(c) Every Rights Certificate surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to Meridian or the Rights
Agent, as the case may be, duly executed by the holder thereof or such
holder's attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under this Section 2.6, Meridian
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the reasonable fees and expenses of the
Rights Agent).
(d) Meridian shall not be required to register the transfer or exchange of
any Rights after the Rights have been terminated pursuant to the
provisions of this Agreement.
2.7 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES
(a) If any mutilated Rights Certificate is surrendered to the Rights Agent
prior to the Expiration Time, Meridian shall execute and the Rights
Agent shall countersign and
<PAGE> 27
25
deliver in exchange therefor a new Rights Certificate evidencing the
same number of Rights as the surrendered Rights Certificate.
(b) If there shall be delivered to Meridian and the Rights Agent prior to
the Expiration Time:
(i) evidence to their reasonable satisfaction of the destruction,
loss or theft of any Rights Certificate; and
(ii) such security or indemnity as may be reasonably required by
them to save each of them and any of their agents harmless,
then, in the absence of notice to Meridian or the Rights Agent
that such Rights Certificate has been acquired by a bona fide
purchaser, Meridian shall execute and upon Meridian's request
the Rights Agent shall countersign and deliver, in lieu of any
such destroyed, lost or stolen Rights Certificate, a new
Rights Certificate evidencing the same number of Rights as did
the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under this
Section 2.7, Meridian may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the reasonable fees
and expenses of the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.7 in
lieu of any destroyed, lost or stolen Rights Certificate shall evidence
the contractual obligation of Meridian, whether or not the destroyed,
lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Rights duly issued
hereunder.
2.8 PERSONS DEEMED OWNERS OF RIGHTS
Meridian, the Rights Agent and any agent of Meridian or the Rights Agent may
deem and treat the Person in whose name a Rights Certificate (or, prior to the
Separation Time, the associated Common Share certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby for all purposes
whatsoever. As used in this Agreement, unless the context otherwise requires,
the term "holder" of any Rights shall mean the registered holder of such Rights
(or, prior to the Separation Time, of the associated Common Share).
2.9 DELIVERY AND CANCELLATION OF CERTIFICATES
All Rights Certificates surrendered upon exercise or for redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Rights Agent, be delivered to the Rights Agent and, in any case, shall
be promptly cancelled by the Rights Agent. Meridian may at any time deliver to
the Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which Meridian may have acquired in any
manner whatsoever, and all Rights Certificates so delivered shall be promptly
Cancelled by the Rights Agent. No Rights Certificate shall be countersigned in
lieu of or in exchange for any Rights Certificates cancelled as provided in this
Section 2.9, except as expressly permitted by this
<PAGE> 28
26
Agreement. The Rights Agent shall, subject to applicable laws, destroy all
cancelled Rights Certificates and deliver a certificate of destruction to
Meridian.
2.10 AGREEMENT OF RIGHTS HOLDERS
Every holder of Rights, by accepting the same, consents and agrees with Meridian
and the Rights Agent and with every other holder of Rights:
(a) to be bound by and subject to the terms of this Agreement, as amended
from time to time in accordance with the terms of this Agreement, in
respect of all Rights held;
(b) that prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
Common Share certificate representing such Right;
(c) that after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided in this Agreement;
(d) that prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Share certificate) for
registration of transfer, Meridian, the Rights Agent and any agent of
Meridian or the Rights Agent may deem and treat the Person in whose
name the Rights Certificate (or, prior to the Separation Time, the
associated Common Share certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on such Rights Certificate or the
associated Common Share certificate made by anyone other than Meridian
or the Rights Agent) for all purposes whatsoever, and neither Meridian
nor the Rights Agent shall be affected by any notice to the contrary;
(e) that such holder of Rights has waived his right to receive any
fractional Rights or any fractional shares or other securities upon
exercise of a Right (except as provided in this Agreement);
(f) that, subject to Section 5.4, without the approval of any holder of
Rights or Voting Shares and upon the sole authority of the Board,
acting in good faith, this Agreement may be supplemented or amended
from time to time pursuant to Subsection 5.4(a) and the last sentence
of the penultimate paragraph of Subsection 2.3(a);
(g) that as between such holder and all other parties to this Agreement, no
party other than such holder shall be liable for any withholding taxes
that may become payable by or on behalf of a holder in respect of the
Rights should they become exercisable or be exercised; and
<PAGE> 29
27
(h) that notwithstanding anything in this Agreement to the contrary,
neither Meridian nor the Rights Agent shall have any liability to any
holder of a Right or to any other Person as a result of its inability
to perform any of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a government,
regulatory or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation.
2.11 RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER
No holder, as such, of any Rights or Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose whatsoever the holder of
any Common Share or any other share or security of Meridian which may at any
time be issuable on the exercise of the Rights represented thereby, nor shall
anything contained in this Agreement or in any Rights Certificate be construed
or deemed or confer upon the holder of any Right or Rights Certificate, as such,
any right, title, benefit or privilege of a holder of Common Shares or any other
shares or securities of Meridian or any right to vote at any meeting of
shareholders of Meridian whether for the election of directors or otherwise or
upon any matter submitted to holders of Common Shares or any other shares of
Meridian at any meeting thereof, or to give or withhold consent to any action of
Meridian, or to receive notice of any meeting or other action affecting any
holder of Common Shares or any other shares of Meridian except as expressly
provided in this Agreement, or to receive dividends, distributions or
subscription rights, or otherwise, until the Right or Rights evidenced by Rights
Certificates shall have been duly exercised in accordance with the terms of this
Agreement.
ARTICLE 3 - ADJUSTMENTS TO THE RIGHTS IN THE
EVENT OF CERTAIN TRANSACTIONS
3.1 FLIP-IN EVENT
(a) Subject to Subsection 3.1(b) and Section 5.1, in the event that prior
to the Expiration Time a Flip-in Event shall occur, each Right shall
constitute, effective at the close of business on the tenth Trading Day
after the Stock Acquisition Date, the right to purchase from Meridian,
upon exercise of the Right in accordance with the terms of this
Agreement, that number of Common Shares having an aggregate Market
Price on the date of consummation or occurrence of such Flip-in Event
equal to twice the Exercise Price for an amount in cash equal to the
Exercise Price (such right to be appropriately adjusted in a manner
analogous to the applicable adjustment provided for in Section 2.3 in
the event that after the consummation or occurrence or event, an event
of a type analogous to any of the events described in Section 2.3 shall
have occurred.
(b) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any Flip-in Event, any Rights that are or were
Beneficially owned on or after the earlier of the Separation Time or
the Stock Acquisition Date by:
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(i) an Acquiring Person (or any Affiliate or Associate of an
Acquiring Person or any Person acting jointly or in concert
with an Acquiring Person or any Affiliate or Associate of an
Acquiring Person); or
(ii) a transferee of Rights, directly or indirectly, from an
Acquiring Person (or any Affiliate or Associate of an
Acquiring Person or any Person acting jointly or in concert
with an Acquiring Person or any Affiliate or Associate of an
Acquiring Person), where such transferee becomes a transferee
concurrently with or subsequent to the Acquiring Person
becoming such in a transfer that the Board has determined is
part of a plan, arrangement or scheme of an Acquiring Person
(or any Affiliate or Associate of an Acquiring Person or any
Person acting jointly or in concert with an Acquiring Person
or any Associate or Affiliate of an Acquiring Person), that
has the purpose or effect of avoiding Clause 3.1(b)(i),
shall become null and void without any further action, and any holder
of such Rights (including transferees) shall thereafter have no right
to exercise such Rights under any term of this Agreement and further
shall thereafter not have any other rights whatsoever with respect to
such Rights, whether under any term of this Agreement or otherwise.
(c) From and after the Separation Time, Meridian shall do all such acts and
things as shall be necessary and within its power to ensure compliance
with Section 3.1, including without limitation, all such acts and
things as may be required to satisfy the requirements of the CBCA, the
Securities Act (Ontario) and the securities laws or comparable
legislation in each of the provinces of Canada and of the United States
and each of the States thereof in respect of the issue of Common Shares
upon the exercise of Rights in accordance with this Agreement.
(d) Any Rights Certificate that represents Rights Beneficially owned by a
Person described in either Clause 3.1(b)(i) or (ii) or transferred to
any nominee of any such Person, and any Rights Certificate issued upon
transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall either not be issued
upon the instruction of Meridian in writing to the Rights Agent or
contain the following legend:
"The Rights represented by this Rights Certificate were issued
to a Person who was an Acquiring Person or an Affiliate or an
Associate of an Acquiring Person (as such terms are defined in
the Shareholder Rights Plan Agreement) or a Person who was
acting jointly or in concert with an Acquiring Person or an
Affiliate or Associate of an Acquiring Person. This Rights
Certificate and the Rights represented hereby are void or
shall become void in the circumstances specified in Subsection
3.1(b) of the Shareholder Rights Plan Agreement."
Provided, however, that the Rights Agent shall not be under any
responsibility to ascertain the existence of facts that would require
the imposition of such legend but shall impose such legend only if
instructed to do so by Meridian in writing or if a holder fails to
certify upon transfer or exchange in the space provided on the Rights
Certificate that such holder is not a Person described in such legend.
The issuance of a Rights Certificate without the
<PAGE> 31
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legend referred to in this Subsection 3.1(d) shall be of no effect on
the provisions of Subsection 3.1(b).
ARTICLE 4 - THE RIGHTS AGENT
4.1 GENERAL
(a) Meridian hereby appoints the Rights Agent to act as agent for Meridian
and the holders of the Rights in accordance with the terms and
conditions of this Agreement, and the Rights Agent hereby accepts such
appointment. Meridian may from time to time appoint one or more
co-Rights Agents ("Co-Rights Agents") as it may deem necessary or
desirable. In the event Meridian appoints one or more Co-Rights Agents,
the respective duties of the Rights Agent and Co-Rights Agents shall be
as Meridian may determine, subject to the consent (which shall not be
unreasonably withheld) of the Rights Agent. Meridian also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence, bad faith or
wilful misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with this Agreement,
including the costs and expenses of defending against any claim of
liability, which right to indemnification will survive the termination
of this Agreement.
(b) The Rights Agent shall be protected and shall incur no liability for or
in respect of any action taken or omitted by it in connection with this
Agreement in reliance upon any certificate for Common Shares, Rights
Certificate, certificate for other securities of Meridian or other
document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or
Persons.
4.2 MERGER, AMALGAMATION OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT
(a) Any corporation into which the Rights Agent- may be merged or
amalgamated or with which it may be consolidated, or any corporation
resulting from any merger, amalgamation, statutory arrangement or
consolidation to which the Rights Agent is a party, or any corporation
succeeding to the shareholder or stockholder services business of the
Rights Agent, will be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights
Agent under Section 4.4. In case at the time such successor Rights
Agent succeeds to the agency created by this Agreement any of the
Rights Certificates have been countersigned but not delivered, any
successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights have not been
countersigned, any successor Rights Agent may countersign such Rights
Certificates in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases Rights
Certificates will have the full force provided in the Rights
Certificates and in this Agreement."
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(b) In case at any time the name of the Rights Agent is changed and at such
time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under
its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in
all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
4.3 DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, all of which Meridian and the holders
of certificates for Common Shares and Rights Certificates, by their acceptance
thereof, shall be bound:
(a) the Rights Agent may consult with legal counsel (who may be legal
counsel for Meridian) and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such
opinion;
(b) whenever in the performance of its duties under this Agreement, the
Rights Agent deems it necessary or desirable that any fact or matter be
proved or established by Meridian prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be specifically prescribed in this Agreement) may be deemed to
be conclusively proved and established by a certificate signed by a
Person believed by the Rights Agent to be the Chairman of the Board,
President, any Vice President, Treasurer, Secretary, or any Assistant
Secretary of Meridian and delivered to the Rights Agent; and such
certificate will be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the terms of this
Agreement in reliance upon such certificate;
(c) the Rights Agent will be liable for its own negligence, bad faith or
wilful misconduct;
(d) the Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for Common Shares or the Rights Certificates (except its
countersignature thereof) or be required to verify the same, but all
such statements and recitals are and will be deemed to have been made
by Meridian only;
(e) the Rights Agent will not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery of this
Agreement (except the due authorization, execution and delivery of this
Agreement by the Rights Agent) or in respect of the validity or
execution of any certificate for a Common Share or Rights Certificate
(except countersignature of the Rights Certificate); nor will it be
responsible for any breach by Meridian of any covenant or condition
contained in this Agreement or in any Rights Certificate; nor will it
be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Subsection 3.1(b)) or
any adjustment required under Section 2.3 or responsible for the
manner, method or amount of any such
<PAGE> 33
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adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of
Rights after receipt of the certificate contemplated by Section 2.3
describing any such adjustment); nor will it by any act under this
Agreement be deemed to make any representation or warranty as to the
authorization of any Common Shares to be issued pursuant to this
Agreement or any Rights or as to whether any Common Shares will, when
issued, be duly and validly authorized, executed, issued and delivered
and fully paid and non-assessable;
(f) Meridian agrees that it will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the
Rights Agent of this Agreement;
(g) the Rights Agent is hereby authorized and directed to accept
instructions in writing with respect to the performance of its duties
under this Agreement from the Chairman of the Board, President, any
Vice President, Treasurer, Secretary or any Assistant Secretary of
Meridian, and to apply to such individuals for advice or instructions
in connection with its duties, and it shall not be liable for any
action taken or suffered by it in good faith in accordance with
instructions of any such individual;
(h) the Rights Agent and any affiliate, shareholder or stockholder,
director, officer or employee of the Rights Agent may buy, sell or deal
in Common Shares, Rights or other securities of Meridian or become
pecuniarily interested in any transaction in which Meridian may be
interested, or contract with or lend money to Meridian or otherwise act
as fully and freely as though it were not the Rights Agent under this
Agreement. Nothing in this Agreement shall preclude the Rights Agent or
its affiliates from acting in any other capacity for Meridian or for
any other legal entity; and
(i) the Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct
of any such attorneys or agents or for any loss to Meridian resulting
from any such act, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment thereof.
4.4 CHANGE OF RIGHTS AGENT
The Rights Agent may resign and be discharged from its duties under this
Agreement upon 60 days' notice (or such lesser notice as is acceptable to
Meridian) in writing mailed to Meridian and to each transfer agent of Common
Shares by registered or certified mail. Meridian may remove the Rights Agent
upon 60 days' notice in writing, mailed to the Rights Agent and to each transfer
agent of the Common Shares by registered or certified mail. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, Meridian
will appoint a successor to the Rights Agent. If Meridian fails to make such
appointment by the date on which the 60-day notice period expires for the
resignation of the Rights Agent or within a period of 60 days after such removal
or after it has been notified in writing of such incapacity by the incapacitated
Rights
<PAGE> 34
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Agent, then by prior written notice to Meridian the resigning Rights Agent or
the holder of any Rights (which holder shall, with such notice, submit such
holder's Rights Certificate, if any, for inspection by Meridian), may apply to
any court of competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by Meridian or by such a court,
shall be a corporation incorporated under the laws of Canada or a province
thereof authorized to carry on the business of a trust company in the Province
of Ontario. After appointment, the successor Rights Agent will be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, Meridian will file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares, and mail a notice thereof in writing to. the holders of the
Rights in accordance with Section 5.9. Failure to give any notice provided for
in this Section 4.4, however, or any defect in such notice, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the
appointment of any successor Rights Agent, as the case may be.
ARTICLE 5 - MISCELLANEOUS
5.1 REDEMPTION, WAIVER
(a) The Board shall waive the application of Section 3.1 in respect of the
occurrence of any Flip-in Event if the Board has determined following a
Stock Acquisition Date and prior to the Separation Time that a Person
became an Acquiring Person by inadvertence and without any intention to
become, or knowledge that it would become, an Acquiring Person under
this Agreement and, in the event that such a waiver is granted by the
Board, such Stock Acquisition Date shall be deemed not to have
occurred. Any such waiver pursuant to this Subsection 5.1 (a) must be
on the condition that such Person, within 14 days after the foregoing
determination by the Board or such earlier or later date as the Board
may determine (the "Disposition Date"), has reduced its Beneficial
ownership of Voting Shares such that the Person is no longer an
Acquiring Person. If the Person remains an Acquiring Person at the
close of business on the Disposition Date, the Disposition Date shall
be deemed to be the date of occurrence of a further Stock Acquisition
Date and Section 3.1 shall apply.
(b) The Board acting in good faith may, prior to a Flip-in Event having
occurred, upon prior written notice delivered to the Rights Agent,
determine to waive the application of Section 3.1 to a Flip-in Event
that may occur by reason of a Take-over Bid made by means of take-over
bid circular to all holders of record of Voting Shares (which for
greater certainty shall not include the circumstances described in
Subsection 5.1 (a)), provided that if the Board waives the application
of Section 3.1 to a particular Flip-in Event pursuant to this
Subsection 5.1(b), the Board shall be deemed to have waived the
application of Section 3.1 to any other Flip-in Event occurring by
reason of any Take-Over Bid which is made by means of a Take-Over Bid
circular to all holders of Voting Shares prior to the expiry of
<PAGE> 35
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any Take-Over Bid (as the same may be extended from time to time) in
respect of which a waiver is, or is deemed to have been granted under
this Subsection 5.1(b).
(c) In the event that prior to the occurrence of a Flip-in Event a person
acquires, pursuant to a Permitted Bid, a Competing Permitted Bid, or an
Exempt Acquisition under Subsection 5.1(b), outstanding Voting Shares,
then the Board shall, immediately upon the consummation of such
acquisition without further formality be deemed to have elected to
redeem the Rights at a redemption price of $0.0001 per Right
appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3 if an event of the type
analogous to any of the events described in Section 2.3 shall have
occurred (the "Redemption Price").
(d) The Board of Meridian acting in good faith may, with the prior approval
of the holders of Voting Shares or Rights given in accordance with the
terms of Section 5.4, at any time prior to the occurrence of a Flip-in
Event elect to redeem all but not less than all of the then outstanding
Rights at the Redemption Price appropriately adjusted in a manner
analogous to the applicable adjustments provided for in Section 2.3,
which adjustments shall only be made in the event that an event of the
type analogous to any of the events described in Section 2.3 shall have
occurred.
(e) The Board may, prior to the close of business on the tenth Trading Day
following a Stock Acquisition Date or such later Business Day as they
may from time to time determine, upon prior written notice delivered to
the Rights Agent, waive the application of Section 3.1 to the related
Flip-in Event, provided that the Acquiring Person has reduced its
beneficial ownership of Voting Shares (or has entered into a
contractual arrangement with Meridian, acceptable to the Board, to do
so within 10 calendar days of the date on which such contractual
arrangement is entered into or such other date as the Board may have
determined) such that at the time the waiver becomes effective pursuant
to this Subsection 5.1(e) such Person is no longer an Acquiring Person.
In the event of such a waiver becoming effective prior to the
Separation Time, for the purposes of this Agreement, such Flip-in Event
shall be deemed not to have occurred.
(f) Where a Take-over Bid that is not a Permitted Bid Acquisition is
withdrawn or otherwise terminated after the Separation Time has
occurred and prior to the the occurrence of a Flip-in Event, the Board
may elect to redeem all the outstanding Rights at the Redemption Price.
Upon the Rights being redeemed pursuant to this Subsection 5.1(f), all
the provisions of this Agreement shall continue to apply as if the
Separation Time had not occurred and Rights Certificates representing
the number of Rights held by each holder of record of Common Shares as
of the Separation Time had not been mailed to each such holder and for
all purposes of this agreement the Separation Time shall be deemed not
to have occurred and Meridian shall be deemed to have issued
replacement Rights to the holders of its then outstanding Common
Shares.
(g) If the Board is deemed under Subsection 5.1(c) to have elected or
elects under Subsections 5.1(d) or (e) to redeem the Rights, the right
to exercise the Rights will,
<PAGE> 36
34
without further action and without notice, terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption
Price.
(h) Within ten days after the Board is deemed under Subsection 5.1(c) to
have elected or elects under Subsection 5.1(d) or (e) to redeem the
Rights, Meridian shall give notice of redemption to the holders of the
then outstanding Rights by mailing such notice to each such holder at
his last address as it appears upon the registry books of the Rights
Agent or, prior to the Separation Time, on the registry books of the
transfer agent for the Voting Shares. Any notice which is mailed in the
manner provided herein shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made.
(i) Meridian shall give prompt written notice to the Rights Agent of any
waiver of the application of Section 3.1 pursuant to this Subsection
5.1.
5.2 EXPIRATION
No Person shall have any rights under this Agreement or in respect of any Right
after the Expiration Time, except the Rights Agent as specified in Subsection
4.1(a).
5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES
Notwithstanding any term of this Agreement or of the Rights to the contrary,
Meridian may, at its option, issue new Rights Certificates evidencing Rights in
such form as may be approved by the Board to reflect any adjustment or change in
the number or kind or class of securities issuable upon exercise of the Rights
made in accordance with the provisions of this Agreement.
5.4 SUPPLEMENTS AND AMENDMENTS
(a) Meridian may make any amendments to this Agreement to correct any
clerical or typographical error or which are required to maintain the
validity of the Agreement as a result of any change in any applicable
legislation, regulations or rules thereunder. Meridian may, prior to
the date of the first shareholders' meeting referred to in Section
5.15, supplement or amend this Agreement without the approval of the
Rights Agent or any holders of Rights or Voting Shares in order to make
any changes which the Board acting in good faith may deem necessary or
desirable. Notwithstanding anything in this Section 5.4, no amendment
shall be made to Article 4 except with the written concurrence of the
Rights Agent to such supplement or amendment.
(b) Subject to Subsection 5.4(a), Meridian may, with the prior consent of
the holders of Voting Shares obtained as set forth below, at any time
before the Separation Time, amend, vary or rescind any of the terms of
this Agreement and the Rights (whether or not such action would
materially adversely affect the interests of the holders of Rights
generally). Such consent shall be deemed to have been given if provided
by the holders of Voting Shares at a Special Meeting, which Special
Meeting shall be called and held in compliance with applicable laws and
regulatory requirements and the requirements in the articles and
<PAGE> 37
35
by-laws of Meridian. Subject to compliance with any requirements
imposed by the foregoing, consent shall be given if the proposed
amendment, variation or rescission is approved by the affirmative vote
of a majority of the votes cast by all holders of Voting Shares (other
than any holder of Voting Shares who does not qualify as an Independent
Shareholder, with respect to all Voting Shares Beneficially owned by
such Person), represented in person or by proxy at the Special Meeting.
(c) Meridian may, with the prior consent of the holders of Rights obtained
as set forth below, at any time after the Separation Time and before
the Expiration Time, amend, vary or rescind any of the terms of this
Agreement and the Rights (whether or not such action would materially
adversely affect the interests of the holders of Rights generally).
Such consent shall be deemed to have been given if provided by the
holders of Rights at a Rights Holders Special Meeting, which Rights
Holders' Special Meeting shall be called and held in compliance with
applicable laws and regulatory requirements and, to the extent
possible, with the requirements in the articles and by-laws of Meridian
applicable to meetings of holders of Voting Shares, applied mutatis
mutandis. Subject to compliance with any requirements imposed by the
foregoing, consent shall be given if the proposed amendment, variation
or rescission is approved by the affirmative vote of a majority of the
votes cast by holders of Rights (other than holders of Rights whose
Rights have become null and void pursuant to Subsection 3.1(b)),
represented in person or by proxy at the Rights Holders' Special
Meeting.
(d) Any approval of the holders of Rights shall be deemed to have been
given if the action requiring such approval is authorized by the
affirmative votes of the holders of Rights present or represented at
and entitled to be voted at a meeting of the holders of Rights and
representing a majority of the votes cast in respect thereof. For the
purposes of this Agreement, each outstanding Right (other than Rights
which are void pursuant to the terms of this Agreement) shall be
entitled to one vote, and the procedures for the calling, holding and
conduct of the meeting shall be those, as nearly as may be, which are
provided in Meridian's by-laws and the CBCA with respect to the
meetings of shareholders of Meridian.
(e) Any amendments made by Meridian to this Agreement pursuant to
Subsection 5.4(a) which are required to maintain the validity of this
Agreement as a result of any change in any applicable legislation,
regulation or rule thereunder shall:
(i) if made before the Separation Time, be submitted to the
shareholders of Meridian at the next meeting of shareholders
and the shareholders may, by the majority referred to in
Subsection 5.4(b) confirm or reject such amendment;
(ii) if made after the Separation Time, be submitted to the holders
of Rights at a meeting to be called for on a date not later
than immediately following the next meeting of shareholders of
Meridian and the holders of Rights may, by resolution passed
by the majority referred to in Subsection 5.4(d) confirm or
reject such amendment.
<PAGE> 38
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Any such amendment shall be effective from the date of the resolution
of the Board adopting it, until it is confirmed or rejected or until it
ceases to be effective (as described below) and, where such amendment
is confirmed, it continues in effect in the form so confirmed. If such
amendment is rejected by the shareholders or the holders of Rights or
is not submitted to the shareholders or holders of Rights as required,
then such amendment shall cease to be effective from and after the
termination of the meeting at which it was rejected or to which it
should have been but was not submitted or from and after the date of
the meeting of holders of Rights that should have been but was not
held, and no subsequent resolution of the Board to amend this Agreement
to substantially the same effect shall be effective until confirmed by
the shareholders or holders of Rights as the case may be.
5.5 FRACTIONAL RIGHTS AND FRACTIONAL SHARES
(a) Meridian shall not be required to issue fractions of Rights or to
distribute Rights Certificates which evidence fractional Rights and
Meridian shall not be required to pay any amount to a holder of record
of Rights Certificates in lieu of such fractional Rights.
(b) Meridian shall not be required to issue fractions of Common Shares upon
exercise of Rights or to distribute certificates which evidence
fractional Common Shares. In lieu of issuing fractional Common Shares,
Meridian shall pay to the registered holders of Rights Certificates, at
the time such Rights are exercised, an amount in cash equal to the
fraction of the Market Price of one Common Share that the fraction of a
Common Share that would otherwise be issuable upon the exercise of such
Right is of one whole Common Share at the date of such exercise.
5.6 RIGHTS OF ACTION
Subject to the terms of this Agreement, all rights of action in respect of this
Agreement, other than rights of action vested solely in the Rights Agent, are
vested in the respective holders of the Rights. Any holder of Rights, without
the consent of the Rights Agent or of the holder of any other Rights, may, on
such holder's own behalf and for such holder's own benefit and the benefit of
other holders of Rights, enforce, and may institute and maintain any suit,
action or proceeding against Meridian to enforce such holder's right to exercise
such holder's Rights, or Rights to which such holder is entitled, in the manner
provided in such holder's Rights Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holder of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement.
<PAGE> 39
37
5.7 REGULATORY APPROVALS
Any obligation of Meridian or action or event contemplated by this Agreement, as
well as any amendment to this Agreement, shall be subject to the receipt of any
requisite approval or consent from any governmental or regulatory authority
(including The Toronto Stock Exchange).
5.8 DECLARATION AS TO NON-CANADIAN HOLDERS
If in the opinion of the Board (who may rely upon the advice of counsel) any
action or event contemplated by this Agreement would require compliance by
Meridian with the securities laws or comparable legislation of a jurisdiction
outside Canada, the Board acting in good faith shall take such actions as it may
deem appropriate to ensure such compliance. In no event shall Meridian or the
Rights Agent be required to issue or deliver Rights or securities issuable on
exercise of Rights to persons who are citizens, residents or nationals of any
jurisdiction other than Canada or the United States, in which such issue or
delivery would be unlawful without registration of the relevant Persons or
securities for such purposes.
<PAGE> 40
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5.9 NOTICES
(a) Notices or demands authorized or required by this Agreement to be given
or made by the Rights Agent or by the holder of any Rights to or on
Meridian shall be sufficiently given or made if delivered, sent by
registered or certified mail, postage prepaid (until another address is
filed in writing with the Rights Agent), or sent by fax or other form
of recorded electronic communication, charges prepaid, and confirmed in
writing, as follows:
Meridian Gold Inc.
Suite 200
9670 Gateway Drive, Suite 200
Reno, NV 89511-8997
Attention: Chief Financial Officer
Fax No.: 775-850-3733
(b) Notices or demands authorized or required by this Agreement to be given
or made by Meridian or by the holder of any Rights to or on the Rights
Agent shall be sufficiently given or made if delivered, sent by
registered or certified mail, postage prepaid (until another address is
filed in writing with Meridian), or sent by fax or other form of
recorded electronic communication, charges prepaid, and confirmed in
writing, as follows:
The Trust Company of Bank of Montreal
129 Saint Jacques Street, B Level North
Montreal, Quebec H2Y IL6
Attention: Account Manager and Supervisor, Shareholder Services
Fax No.: 514-877-9676
(c) Notices or demands authorized or required by this Agreement to be given
or made by Meridian or the Rights Agent to or on the holder of any
Rights shall be sufficiently given or made if delivered or sent by
registered or certified mail, postage prepaid, addressed to such holder
at the address of such holder as it appears upon the register of the
Rights Agent or, prior to the Separation Time, on the register of
Meridian for its Common Shares. Any notice which is mailed or sent in
the manner provided above shall be deemed given, whether or not the
holder receives the notice.
(d) Any notice given or made in accordance with Section 5.9 shall be deemed
to have been given and to have been received on the day of delivery, if
so delivered on a Business Day (otherwise on the first Business Day
thereafter), on the third Business Day (excluding each day during which
there exists any general interruption of postal service due to strike,
lockout or other cause) following mailing, if so mailed, and on the day
of faxing or sending by other means of recorded electronic
communication (provided such sending is during the normal business
hours of the addressee on a Business Day and if not, on the first
Business Day thereafter). Each of Meridian and the Rights Agent may
from time to
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39
time change its address for notice by notice to the other given in the
manner provided above.
5.10 COSTS OF ENFORCEMENT
Meridian agrees that if Meridian fails to fulfil any of its obligations pursuant
to this Agreement, then Meridian will reimburse the holder of any Rights for the
costs and expenses (including legal fees) incurred by such holder to enforce his
rights pursuant to any Rights or this Agreement.
5.11 SUCCESSORS
All the covenants and terms of this Agreement by or for the benefit of Meridian
or the Rights Agent shall bind and enure to the benefit of their respective
successors and assigns.
5.12 BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any Person (other than
Meridian, the Rights Agent and the holders of the Rights) any legal or equitable
right, remedy or claim under this Agreement. This Agreement shall be for the
sole and exclusive benefit of Meridian, the Rights Agent and the holders of the
Rights.
5.13 GOVERNING LAW
This Agreement and each Right issued shall be deemed to be a contract made under
the laws of Ontario and for all purposes shall be governed by and construed in
accordance with the laws of Ontario applicable to contracts to be made and
performed entirely within Ontario.
5.14 SEVERABILITY
If any term of this Agreement or the application thereof to any circumstance
shall, in any jurisdiction and to any extent, be invalid or unenforceable, such
term shall be ineffective only as to such jurisdiction and to the extent of such
invalidity or unenforceability in such jurisdiction without invalidating or
rendering ineffective or unenforceable the remaining terms of this Agreement in
such jurisdiction or the application of such term in any other jurisdiction or
to circumstances other than those as to which it is specifically held invalid or
unenforceable.
5.15 EFFECTIVE DATE
This Agreement is effective and in full force and effect in accordance with its
terms from and after the Effective Date. In the event that this Agreement is not
confirmed by a majority of the votes cast by holders of Voting Shares who vote
in respect of confirmation of this agreement (other than any holder who does not
qualify as an Independent Shareholder, with respect to all Voting Shares
Beneficially owned by such Person) at Meridian's annual and special meeting of
shareholders in 1999, then this Agreement and all outstanding Rights shall
terminate and shall be void and of no further force and effect from the date
that such event occurs.
<PAGE> 42
40
This Agreement must be reconfirmed by a resolution passed by a majority of the
votes cast by all holders of Voting Shares who vote in respect of such
reconfirmation (other than any holder who does not qualify as an Independent
Shareholder, with respect to all Voting Shares Beneficially owned by such
Person) at the third and sixth annual meeting following Meridian's annual and
special meeting of shareholders in 1999. If this agreement is not so reconfirmed
or is not presented for reconfirmation at such annual meeting, this Agreement
and all outstanding Rights shall terminate and be void and of no further force
and effect on and from the date of termination of the annual meeting; provided
that termination shall not occur if a Flip-in Event has occurred (other than a
Flip-in Event which has been waived pursuant to subsection 5.1(a) or (b)
hereof), prior to the date upon which this Agreement would otherwise terminate
pursuant to this Section 5.15.
5.16 DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS
All actions, calculations and determinations (including all omissions with
respect to the foregoing) which are done or made by the Board, in good faith,
shall not subject the Board or any director of Meridian to any liability to the
holders of the Rights.
5.17 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
5.18 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
MERIDIAN GOLD INC.
By: /s/ Brian J. Kennedy
----------------------------------
THE TRUST COMPANY OF BANK OF MONTREAL
By: /s/ Carmela Ristaino
----------------------------------
<PAGE> 43
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ATTACHMENT I
FORM OF RIGHTS CERTIFICATE
Certificate No. o o Rights
THE RIGHTS ARE SUBJECT TO TERMINATION ON THE TERMS SET FORTH IN THE SHAREHOLDER
RIGHTS PLAN AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SUBSECTION
3.1(B) OF THE SHAREHOLDER RIGHTS PLAN AGREEMENT), RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON OR CERTAIN RELATED PARTIES, OR TRANSFEREES OF AN ACQUIRING
PERSON OR CERTAIN RELATED PARTIES, MAY BECOME VOID.
RIGHTS CERTIFICATE
This certifies that o, or registered assigns, is the registered holder of the
number of Rights set forth above, each of which entitles the registered holder
thereof, subject to the terms, provisions and conditions of the Shareholder
Rights Plan Agreement, dated as of March 19, 1999 (the "Shareholder Rights Plan
Agreement"), between Meridian Gold Inc., a corporation incorporated under the
laws of Canada and The Trust Company of Bank of Montreal, a trust company
incorporated under the laws of Canada (the "Rights Agent") (which term shall
include any successor Rights Agent under the Shareholder Rights Plan Agreement),
to purchase from Meridian Gold Inc. at any time after the Separation Time (as
defined in the Shareholder Rights Plan Agreement) and prior to the Expiration
Time (as defined in the Shareholder Rights Plan Agreement), one fully paid
common share of Meridian Gold Inc. (a "Common Share") at the Exercise Price
referred to below, upon presentation and surrender of this Rights Certificate
with the Form of Election to Exercise (in the form provided hereinafter) duly
executed and submitted to the Rights Agent at its principal office in the city
of Toronto. The Exercise Price shall initially be $25.00 (Cdn.) per Right and
shall be subject to adjustment in certain events as provided in the Shareholder
Rights Plan Agreement.
This Rights Certificate is subject to all of the terms of the Shareholder Rights
Plan Agreement, which terms are incorporated herein by reference and made a part
hereof and to which Shareholder Rights Plan Agreement reference is hereby made
for a full description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Rights Agent, Meridian Gold Inc. and the
holders of the Rights Certificates. Copies of the Shareholder Rights Plan
Agreement are on file at the registered office of Meridian Gold Inc.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at any of the offices of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing an aggregate number of Rights equal to the aggregate
number of Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
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No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Common Shares or of
any other securities which may at any time be issuable upon the exercise hereof,
nor shall anything contained in the Shareholder Rights Plan Agreement or herein
be construed to confer upon the holder hereof, as such, any of the Rights of a
shareholder of Meridian Gold Inc. or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in the
Shareholder Rights Plan Agreement), or to receive dividends or subscription
rights, or otherwise, until the Rights evidenced by this Rights Certificate
shall have-been exercised as provided in the Shareholder Rights Plan Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose until
it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of Meridian Gold Inc. and
its corporate seal.
Date: o
MERIDIAN GOLD INC.
By: By:
----------------------------------- -----------------------------------
President Secretary
Countersigned:
THE TRUST COMPANY OF BANK OF MONTREAL
By:
-----------------------------------
Authorized Signature
<PAGE> 45
43
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Rights Certificate.)
FOR VALUE RECEIVED o hereby sells, assigns and transfers unto o (Please print
name and address of transferee) the Rights represented by this Rights
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint o, as attorney, to transfer the within
Rights on the books of Meridian Gold Inc., with full power of substitution.
Dated:
-------------------------------------------------------------------------
Signature
Signature Guaranteed: (Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.)
Signature must be guaranteed by a member firm of a recognized stock exchange in
Canada, or a commercial bank or trust company having an office or correspondent
in Canada.
CERTIFICATE
The undersigned party transferring Rights hereunder, hereby represents, for the
benefit of all holders of Rights and Common Shares, that the Rights evidenced by
this Rights Certificate are not, and, to the knowledge of the undersigned, have
never been, Beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof or a Person acting jointly or in concert with an Acquiring
Person or an Affiliate or Associate thereof. Capitalized terms shall have the
meaning ascribed thereto in the Shareholder Rights Plan Agreement.
-------------------------------------------
Signature
FORM OF ELECTION TO EXERCISE
(To be exercised by the registered holder if such holder desires to exercise the
Rights Certificate.)
TO: Meridian Gold Inc. and The Trust Company of Bank of Montreal
The undersigned hereby irrevocably elects to exercise o whole Rights represented
by the attached Rights Certificate to purchase the Common Shares or other
securities, if applicable, issuable upon the exercise of such Rights and
requests that certificates for such securities be issued in the name of: o
(Name) o (Address) o (Social Insurance Number or other taxpayer identification
number).
<PAGE> 46
44
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to: o (Name) o (Address) o (Social
Insurance Number or other taxpayer identification number)
Dated:
-------------------------------------------------------------------------
Signature
Signature Guaranteed: (Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.)
Signature must be guaranteed by a member firm of a recognized stock exchange in
Canada, or a commercial bank or trust company having an office or correspondent
in Canada.
CERTIFICATE
The undersigned party transferring Rights hereunder, hereby represents, for the
benefit of all holders of Rights and Common Shares, that the Rights evidenced by
this Rights Certificate are not, and, to the knowledge of the undersigned, have
never been, Beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof or a Person acting jointly or in concert with an Acquiring
Person or an Affiliate or Associate thereof. Capitalized terms shall have the
meaning ascribed thereto in the Shareholder Rights Plan Agreement.
-------------------------------------------
Signature
NOTICE
In the event the certification set forth above in the Forms of Assignment and
Election is not completed, Meridian Gold Inc. will deem the Beneficial owner of
the Rights evidenced by this Rights Certificate to be an Acquiring Person or an
Affiliate or Associate thereof. No Rights Certificates shall be issued in
exchange for a Rights Certificate owned or deemed to have been owned by an
Acquiring Person or an Affiliate or Associate thereof, or by a Person acting
jointly or in concert with an Acquiring Person or an Affiliate or Associate
thereof.
<PAGE> 1
EXHIBIT 1.2
SHAREHOLDER RIGHTS PLAN
AMENDING AGREEMENT
EFFECTIVE AS OF
MARCH 19, 1999
BETWEEN
MERIDIAN GOLD INC
AND
THE TRUST COMPANY OF BANK OF MONTREAL
AS RIGHTS AGENT
<PAGE> 2
AMENDING AGREEMENT, made effective as of March 19, 1999 between
Meridian Gold Inc. ("Meridian") a corporation incorporated under the laws of
Canada and The Trust Company of Bank of Montreal, a trust company incorporated
under the laws of Canada (the "Rights Agent");
RECITALS:
(A) Meridian and the Rights Agent entered into a shareholder rights plan
agreement (the "Agreement") dated as of March 19, 1999;
(B) The definition of Expiration Date was omitted from the Agreement in
error; and
(C) Section 5.4(a) of the Agreement states that Meridian may make
amendments to the Agreement to correct any clerical or typographical
error.
NOW THEREFORE, the parties hereby agree as follows:
1.1 EXPIRATION TIME
Section 1.1 of the Agreement is hereby amended by adding the following
definition of "Expiration Time" as Section 1.1(y), and amending the paragraph
reference of each definition in Section 1.1 that follows "Expiration Time" and
each cross reference to such definitions contained in the Agreement,
accordingly:
"EXPIRATION TIME" means the close of business on that date which is the
earliest date of termination of this Agreement as provided for in
Section 5.15 or, if this Agreement is confirmed and subsequently
reconfirmed pursuant to Section 5.15 at the third and sixth annual
meetings following Meridian's annual and special meeting of
shareholders in 1999, the close of business on the tenth anniversary of
the Effective Time;
1.2 GOVERNING LAW
This amending agreement shall be governed by and construed in accordance with
the laws of Ontario applicable to contracts to be made and performed entirely
within Ontario.
<PAGE> 3
2
1.3 EXECUTION IN COUNTERPARTS
This amending agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the date first written above.
MERIDIAN GOLD INC.
By: /s/ Eden Oliver
-------------------------------
THE TRUST COMPANY OF
BANK OF MONTREAL
By: /s/ Carmela Ristaino
-------------------------------
