Flip-over. (a) In the event that, on or after the occurrence of a Flip-In Event, and an event described in (i), (ii) or (ii) below (where each such event shall be referred to herein as a "Flip-Over Event," and where a Flip-In Event or a Flip-Over Event shall sometimes be referred to herein as a "Triggering Event"), proper provision shall be made so that the registered holder of each Right, except as otherwise provided in Section 2.5(c), shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the Product, in accordance with this Agreement, in lieu of Preferred Shares, the number of freely tradable shares (which shall be duly authorized, validly issued, fully paid and nonassessable) of Common Stock of the Principal Party or, in the case of a merger described in clause (ii) of this Section 3.3 (a) in which the Common Stock of the Company shall remain outstanding, unconverted and unchanged, of the Company, free and clear of all rights of call or first refusal, liens, encumbrances or other adverse claims, determined by dividing the Product by 50% of the Fair Market Value of the shares of Common Stock of such Principal Party (or, if appropriate, the Company) on the date of consummation of a Flip-Over Event. Such Flip-Over Events are as follows: (i) The Company shall consolidate with, or merge with and into, any Interested Shareholder or, if in such consolidation or merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company) in a transaction not prohibited by Section 3.3(i), so that the Company shall not be the continuing or surviving corporation; (ii) Any Interested Shareholder or, if in such merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company in a transaction not prohibited by Section 3.3(i)) shall merge with and into the Company, so that the Company shall be the continuing or surviving corporation, and in connection with such merger either all or part of the outstanding shares of Common Stock of the Company shall be converted or changed into or exchanged for capital stock or other securities of any other Person (or the Company), cash and/or other property or such shares of Common Stock shall remain outstanding, unconverted and unchanged; or (iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or a series of related transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Interested Shareholder or, if in such transaction or transactions the holders of the Common Stock of the Company are not treated the same, any other Person or Persons (other than the Company or one or more of its wholly-owned Subsidiaries in one or more transactions, each of which is not prohibited by Section 3.3(i)); (b) Upon the consummation of a Flip-Over Event, such Principal Party shall thereafter be liable for, and shall assume, by reason of the consummation of such Flip-Over Event, all the obligations and duties of the Company under this Agreement. The term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the applicable provisions of this Agreement shall apply to such Principal Party and such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of its shares of Common Stock to permit exercise of all outstanding Rights in accordance with this subsection and the distribution of cash, debt securities, shares and other property in accordance with Section 3.1(d)) in connection with the consummation of a Flip-Over Event as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably possible, in relation to the shares of Common Stock thereafter deliverable upon exercise of the Rights.
Appears in 3 contracts
Samples: Shareholder Rights Agreement (Plexus Corp), Shareholder Rights Agreement (Fiserv Inc), Shareholder Rights Agreement (Fiserv Inc)
Flip-over. (a) In the event that, on or after the occurrence of a Flip-In Event, and an event described in (i), (ii) or (ii) below (where each such event shall be referred to herein as a "Flip-Over Event," and where a Flip-In Event or a Flip-Over Event shall sometimes be referred to herein as a "Triggering Event"), proper provision shall be made so that the registered holder of each Right, except as otherwise provided in Section 2.5(c), shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the Product, in accordance with this Agreement, in lieu of Preferred Shares, the number of freely tradable shares (which shall be duly authorized, validly issued, fully paid and nonassessable) of Common Stock of the Principal Party or, in the case of a merger described in clause (ii) of this Section 3.3
(a) in which the Common Stock of the Company shall remain outstanding, unconverted and unchanged, of the Company, free and clear of all rights of call or first refusal, liens, encumbrances or other adverse claims, determined by dividing the Product by 50% of the Fair Market Value of the shares of Common Stock of such Principal Party (or, if appropriate, the Company) on the date of consummation of a Flip-Over Event. Such Flip-Over Events are as follows:
(i) The Company shall consolidate with, or merge with and into, any Interested Shareholder or, if in such consolidation or merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company) Company in a transaction not prohibited by Section 3.3(i), so that the Company shall not be the continuing or surviving corporation;
(ii) Any Interested Shareholder or, if in such merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company in a transaction not prohibited by Section 3.3(i)) shall merge with and into the Company, so that the Company shall be the continuing or surviving corporation, and in connection with such merger either all or part of the outstanding shares of Common Stock of the Company shall be converted or changed into or exchanged for capital stock or other securities of any other Person (or the Company), cash and/or other property or such shares of Common Stock shall remain outstanding, unconverted and unchanged; or
(iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or a series of related transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Interested Shareholder or, if in such transaction or transactions the holders of the Common Stock of the Company are not treated the same, any other Person or Persons (other than the Company or one or more of its wholly-owned Subsidiaries in one or more transactions, each of which is not prohibited by Section 3.3(i));
(b) Upon the consummation of a Flip-Over Event, such Principal Party shall thereafter be liable for, and shall assume, by reason of the consummation of such Flip-Over Event, all the obligations and duties of the Company under this Agreement. The term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the applicable provisions of this Agreement shall apply to such Principal Party and such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of its shares of Common Stock to permit exercise of all outstanding Rights in accordance with this subsection and the distribution of cash, debt securities, shares and other property in accordance with Section 3.1(d)) in connection with the consummation of a Flip-Over Event as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably possible, in relation to the shares of Common Stock thereafter deliverable upon exercise of the Rights.
Appears in 2 contracts
Samples: Shareholder Rights Agreement (St Francis Capital Corp), Shareholder Rights Agreement (St Francis Capital Corp)
Flip-over. (a) In the event that, on or after the occurrence of a Flip-In Event, and an event described in (i), (ii) or (ii) below (where each such event shall be referred to herein as a "Flip-Over Event," and where a Flip-In Event or a Flip-Over Event shall sometimes be referred to herein as a "Triggering Event"), proper provision shall be made so that the registered holder of each Right, except as otherwise provided in Section 2.5(c), shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the Product, in accordance with this Agreement, in lieu of Preferred Shares, the number of freely tradable shares (which shall be duly authorized, validly issued, fully paid and nonassessable) of Common Stock of the Principal Party or, in the case of a merger described in clause (ii) of this Section 3.3
(a3.3(a) in which the Common Stock of the Company shall remain outstanding, unconverted and unchanged, of the Company, free and clear of all rights of call or first refusal, liens, encumbrances or other adverse claims, determined by dividing the Product by 50% of the Fair Market Value of the shares of Common Stock of such Principal Party (or, if appropriate, the Company) on the date of consummation of a Flip-Over Event. Such Flip-Over Events are as follows:
(i) The Company shall consolidate with, or merge with and into, any Interested Shareholder or, if in such consolidation or merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company) in a transaction not prohibited by Section 3.3(i), so that the Company shall not be the continuing or surviving corporation;
(ii) Any Interested Shareholder or, if in such merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company in a transaction not prohibited by Section 3.3(i)) shall merge with and into the Company, so that the Company shall be the continuing or surviving corporation, and in connection with such merger either all or part of the outstanding shares of Common Stock of the Company shall be converted or changed into or exchanged for capital stock or other securities of any other Person (or the Company), cash and/or other property or such shares of Common Stock shall remain outstanding, unconverted and unchanged; or
(iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or a series of related transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Interested Shareholder or, if in such transaction or transactions the holders of the Common Stock of the Company are not treated the same, any other Person or Persons (other than the Company or one or more of its wholly-owned Subsidiaries in one or more transactions, each of which is not prohibited by Section 3.3(i));
(b) Upon the consummation of a Flip-Over Event, such Principal Party shall thereafter be liable for, and shall assume, by reason of the consummation of such Flip-Over Event, all the obligations and duties of the Company under this Agreement. The term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the applicable provisions of this Agreement shall apply to such Principal Party and such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of its shares of Common Stock to permit exercise of all outstanding Rights in accordance with this subsection and the distribution of cash, debt securities, shares and other property in accordance with Section 3.1(d)) in connection with the consummation of a Flip-Over Event as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably possible, in relation to the shares of Common Stock thereafter deliverable upon exercise of the Rights.
Appears in 1 contract
Flip-over. (a) In the event that, on or after the occurrence of a Flip-In Event, and an event described in (i), (ii) or (ii) below (where each such event shall be referred to herein as a "Flip-Over Event," and where a Flip-In Event or a Flip-Over Event shall sometimes be referred to herein as a "Triggering Event"), proper provision shall be made so that the registered holder of each Right, except as otherwise provided in Section 2.5(c), shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the Product, in accordance with this Agreement, in lieu of Preferred Shares, the number of freely tradable shares (which shall be duly authorized, validly issued, fully paid and nonassessable) of Common Stock of the Principal Party or, in the case of a merger described in clause (ii) of this Section 3.3
(a) in which the Common Stock of the Company shall remain outstanding, unconverted and unchanged, of the Company, free and clear of all rights of call or first refusal, liens, encumbrances or other adverse claims, determined by dividing the Product by 50% of the Fair Market Value of the shares of Common Stock of such Principal Party (or, if appropriate, the Company) on the date of consummation of a Flip-Over Event. Such Flip-Over Events are as follows:
(i) The the Company shall consolidate with, or merge with and into, any Interested Shareholder or, if in such consolidation or merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-wholly- owned Subsidiary of the Company) Company in a transaction not prohibited by Section 3.3(i), so that the Company shall not be the continuing or surviving corporation;
(ii) Any any Interested Shareholder or, if in such merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company in a transaction not prohibited by Section 3.3(i)) shall merge with and into the Company, so that the Company shall be the continuing or surviving corporation, and in connection with such merger either all or part of the outstanding shares of Common Stock of the Company shall be converted or changed into or exchanged for capital stock or other securities of any other Person (or the Company), cash and/or other property or such shares of Common Stock shall remain outstanding, unconverted and unchanged; or
(iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or a series of related transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Interested Shareholder or, if in such transaction or transactions the holders of the Common Stock of the Company are not treated the same, any other Person or Persons (other than the Company or one or more of its wholly-owned Subsidiaries in one or more transactions, each of which is not prohibited by Section 3.3(i));
(b) Upon the consummation of a Flip-Over Event, such Principal Party shall thereafter be liable for, and shall assume, by reason of the consummation of such Flip-Over Event, all the obligations and duties of the Company under this Agreement. The term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the applicable provisions of this Agreement shall apply to such Principal Party and such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of its shares of Common Stock to permit exercise of all outstanding Rights in accordance with this subsection and the distribution of cash, debt securities, shares and other property in accordance with Section 3.1(d)) in connection with the consummation of a Flip-Over Event as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably possible, in relation to the shares of Common Stock thereafter deliverable upon exercise of the Rights.
Appears in 1 contract
Samples: Shareholder Rights Agreement (Hallmark Capital Corp)
Flip-over. (a) In the event that, on or after the occurrence of a Flip-In Event, and an event described in (i), (ii) or (ii) below (where each such event shall be referred to herein as a "Flip-Over Event," and where a Flip-In Event or a Flip-Over Event shall sometimes be referred to herein as a "Triggering Event"), proper provision shall be made so that the registered holder of each Right, except as otherwise provided in Section 2.5(c), shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the Product, in accordance with this Agreement, in lieu of Preferred Shares, the number of freely tradable shares (which shall be duly authorized, validly issued, fully paid and nonassessable) of Common Stock of the Principal Party or, in the case of a merger described in clause (ii) of this Section 3.3
(a) in which the Common Stock of the Company shall remain outstanding, unconverted and unchanged, of the Company, free and clear of all rights of call or first refusal, liens, encumbrances or other adverse claims, determined by dividing the Product by 50% of the Fair Market Value of the shares of Common Stock of such Principal Party (or, if appropriate, the Company) on the date of consummation of a Flip-Over Event. Such Flip-Over Events are as follows:
(i) The the Company shall consolidate with, or merge with and into, any Interested Shareholder or, if in such consolidation or merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-wholly- owned Subsidiary of the Company) Company in a transaction not prohibited by Section 3.3(i), so that the Company shall not be the continuing or surviving corporation;
(ii) Any any Interested Shareholder or, if in such merger all holders of the Common Stock of the Company are not treated the same, any other Person (other than a wholly-owned Subsidiary of the Company in a transaction not prohibited by Section 3.3(i)) shall merge with and into the Company, so that the Company shall be the continuing or surviving corporation, and in connection with such merger either all or part of the outstanding shares of Common Stock of the Company shall be converted or changed into or exchanged for capital stock or other securities of any other Person (or the Company), cash and/or other property or such shares of Common Stock shall remain outstanding, unconverted and unchanged; or
(iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or a series of related transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Interested Shareholder or, if in such transaction or transactions the holders of the Common Stock of the Company are not treated the same, any other Person or Persons (other than the Company or one or more of its wholly-owned Subsidiaries in one or more transactions, each of which is not prohibited by Section 3.3(i));
(b) Upon the consummation of a Flip-Over Event, such Principal Party shall thereafter be liable for, and shall assume, by reason of the consummation of such Flip-Over Event, all the obligations and duties of the Company under this Agreement. The term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the applicable provisions of this Agreement shall apply to such Principal Party and such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of its shares of Common Stock to permit exercise of all outstanding Rights in accordance with this subsection and the distribution of cash, debt securities, shares and other property in accordance with Section 3.1(d)) in connection with the consummation of a Flip-Over Event as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably possible, in relation to the shares of Common Stock thereafter deliverable upon exercise of the Rights.
(c) After the Distribution Date, the Company shall not consolidate or merge with any other Person (other than a wholly owned Subsidiary of the Company in a transaction not prohibited by Section 3.3(i)), or sell or otherwise transfer (or permit one or more of its Subsidiaries to sell or otherwise transfer), in one or a series of related transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company or one or more of its wholly-owned Subsidiaries in one or more transactions, each of which is not prohibited by Section 3.3(i)), if (i) at the time of or immediately after the consummation of such transaction there are any options, warrants, rights, conversion or exchange privileges or securities outstanding or any written or oral agreements, arrangements or understandings (including provisions contained in the Company's Certificate of Incorporation or Bylaws) in effect which, as a result of the consummation of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights, or (ii) prior to, simultaneously with or immediately after such transaction the shareholders of the Person who constitutes, or would constitute, the Principal Party for the purpose of subsection (a) of this Section shall have received a distribution of Rights previously owned by such Person or any of its Affiliates or Associates.
(d) The Company shall not consummate any Flip-Over Event unless prior thereto (i) the Principal Party shall have a sufficient number of authorized shares of its Common Stock which have not been issued or reserved for issuance to permit the exercise in full of the Rights in accordance with this Section, and (ii) the Company, the Principal Party and each other Person who may become the Principal Party as a result of the consummation of such Flip-Over Event shall have executed and delivered to the Rights Agent a supplemental agreement providing for the implementation of all the terms and conditions set forth in this Section and that, as soon as practicable after the date of such Flip-Over Event, the Principal Party, at its own expense, shall:
(i) Prepare and file a registration statement on an appropriate form under the Securities Act with respect to the Rights and the securities purchasable upon exercise thereof, and use its best efforts to cause such registration statement to become effective as soon as practicable after such filing and to remain effective (with a prospectus which at all times meets the requirements of the Securities Act) until the earliest of the date as of which the Rights are no longer exercisable for such securities, the Redemption Date and the Final Expiration Date;
(ii) Use its best efforts to qualify or register the Rights and the securities purchasable upon exercise thereof under the securities or "blue sky" laws of such jurisdictions as may be necessary or appropriate in connection with the exercisability of the Rights;
(iii) Use its best efforts to list (or continue the listing of) the Rights and the securities purchasable upon exercise thereof on a national securities exchange or to meet the eligibility requirements for quotation on Nasdaq; and
(iv) Deliver to the registered holders of the Rights historical financial statements for the Principal Party and each of its Affiliates complying in all material respects with the requirements for registration of securities on Form 10 under the Exchange Act.
(e) Notwithstanding anything in this Agreement to the contrary, this Section shall not apply if (i) such transaction is consummated with a Person or Persons who acquired their shares of Common Stock of the Company pursuant to a Permitted Offer, (ii) the price per share of Common Stock of the Company provided in such transaction shall not be less than the price per share of Common Stock paid to all holders whose shares were purchased pursuant to such Permitted Offer, and (iii) the form of consideration being offered to the remaining holders of the Common Stock of the Company pursuant to such transaction is the same as the form of consideration paid pursuant to such Permitted Offer. Upon consummation of any transaction authorized by this subsection (e), all Rights shall expire.
(f) If, in the case of any transaction described in clause (iii) of subsection (a) of this Section, the Person or Persons to whom assets or earning power are sold or otherwise transferred are individuals, then, in lieu of any other payment or distribution required by this Section, the Company shall require as a condition to such transaction that, such Person or Persons shall pay to each holder of a Rights Certificate, upon its surrender to the Rights Agent and in exchange therefor (without requiring any payment by such holder), cash in the amount determined by multiplying the then current Exercise Price by the number of one one-hundredths of a Preferred Share for which a Right is then exercisable.
(g) In no event shall the Rights Agent have any obligations or duties in respect of any Flip-Over Event, except as expressly set forth in this Agreement. The Rights Agent may rely, and shall be fully protected in relying upon, a certificate of the Company stating that the provisions of this Section have been fulfilled. The prior written consent of the Rights Agent shall be required in connection with any supplemental agreement which alters or impairs the rights, obligations, duties or immunities of the Rights Agent hereunder.
(h) The provisions of this Section shall similarly apply to successive consolidations, mergers, sales or other transfers. In the event that a Flip-Over Event shall occur at any time after the occurrence of a Flip-In Event, the Rights which have not been theretofore exercised shall thereafter be exercisable in the manner described in this Section.
(i) Except as permitted by Sections 5.1 and 5.9, the Company covenants and agrees that, after the Distribution Date, it will not take, or permit any of its Subsidiaries to take, any action if at the time such action would be taken it is reasonably foreseeable that such action would eliminate or substantially diminish the benefits intended to be afforded by the Rights.
Appears in 1 contract
Samples: Shareholder Rights Agreement (Hallmark Capital Corp)
