Standstill and Related Provisions. (a) Subject to Section 3(b) of this Agreement, during the Standstill Period, Stockholder, each other Restricted Party and Teck each agrees that it will not, and will cause each of its other Affiliates, agents and representatives not to, directly or indirectly, by operation of law or otherwise, alone or in concert with others: (i) acquire, offer, propose or agree to acquire, or obtain an option or right to acquire, directly or indirectly, whether by purchase, tender offer, exchange offer, put or call option, hedging transaction, stock loan, through the acquisition of control of another Person or otherwise, any Company Voting Securities (except in connection with any stock split, stock dividend, recapitalization or similar transaction); (ii) make, or in any way participate, directly or indirectly, in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) of proxies or consents with respect to the Company Voting Securities (whether or not relating to the election or removal of directors), advise, seek to advise, encourage or influence any Person with respect to the voting of any Company Voting Securities, initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) shareholders of the Company for the approval of shareholder proposals, whether made pursuant to Rule 14a-8 of the Exchange Act or otherwise, or induce or attempt to induce any other Person to initiate any such shareholder proposal or initiate any other action described in this Section 3(a)(ii); (iii) seek, propose or make any public statement with respect to any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, acquisition by third parties of any Company Voting Securities, dissolution, liquidation, reorganization, recapitalization or similar transaction involving the Company, any of its Affiliates or any of their businesses, except as contemplated by the Master Agreement and this Agreement; (iv) form, join or in any way participate in a Group with respect to Beneficial Ownership of any Company Voting Securities or otherwise involving a transaction described in Section 3(a)(iii) above, provided, however that nothing in this Section 3(a)(iv) shall preclude Stockholder, each other Restricted Party and Teck from forming a Group consisting solely of the Stockholder, Teck and their Affiliates as long as such Group does not otherwise violate any other provision of this Agreement; (v) deposit any Company Voting Securities in any voting trust, loan any Company Voting Securities or subject any Company Voting Securities to any agreement, arrangement or understanding with respect to the voting or Beneficial Ownership of any Company Voting Securities other than this Agreement or grant any proxy with respect to any such securities to any Person not designated by the Company (except as provided in Section 4 below); (vi) call or seek to have called any meeting of the shareholders of the Company or execute any written consent with respect to the Company or Company Voting Securities (except as provided in Section 4(c) below); (vii) otherwise act to influence or control or seek to influence or control the management, Board of Directors or policies of the Company, including, without limitation, the composition or structure of the Board of Directors, through the voting of any Company Voting Securities or otherwise; (viii) seek representation on the Board of Directors or seek the removal of any member of the Board of Directors; (ix) make or initiate any proposal or disclose publicly any intention to make any proposal (whether or not subject to any conditions) or enter into any discussion regarding any of the actions described in this Section 3; (x) take any action relating specifically to the Company (and without regard to any actions or public statements regarding Stockholder’s, Teck’s or any other Restricted Party’s business or operations or the mining or precious metals industries generally), which encourages, induces, persuades or forces another Person to make a public announcement relating to the Company or any of its Subsidiaries regarding the matters set forth in this subsection; or encourage, solicit, assist, institute, participate in, finance or support, or enter into any discussions, negotiations, understandings, agreements or arrangements with, any other Person with respect to any of the foregoing; (xi) make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request to amend, waive or terminate any provision of this Agreement; or (xii) have any discussions or communications with, or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or invest in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing. (b) Nothing in Section 3(a) of this Agreement shall prevent Stockholder, each other Restricted Party or Teck from Transferring the Common Stock it Beneficially Owns in accordance with Section 5 of this Agreement.
Appears in 1 contract
Standstill and Related Provisions. (a) Subject to Section 3(b) of this Agreement, during During the Standstill PeriodPeriod the Ellin Group, Stockholderand each member thereof, agrees that without the prior written consent of the Board of Directors of the Company specifically expressed in a resolution adopted by a majority of the directors of the Company, the Ellin Group will not, each other Restricted Party and Teck each agrees that it member of the Ellin Group will not, and Ellin will cause each of its his other Affiliates, agents and representatives not to, directly or indirectly, by operation of law or otherwise, alone or in concert with others:
(i) acquire, : acquire or offer, propose or agree to acquire, or obtain an option or right to acquire, directly or indirectly, whether by purchase, tender offer, or exchange offer, put or call option, hedging transaction, stock loan, through the acquisition of control of another Person or otherwise, any Company Voting Securities (except in connection with any stock split, stock dividend, recapitalization or similar transaction);
(ii) other securities of the Company; make, or in any way participate, directly or indirectly, in any “"solicitation” " (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) of proxies or consents with respect to the Company Voting Securities (whether or not relating to the election or removal of directors), advise, seek to advise, encourage or influence any Person with respect to the voting of any Company Voting Securities, initiate, propose or otherwise “"solicit” " (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) shareholders stockholders of the Company for the approval of shareholder proposals, whether made pursuant to Rule 14a-8 of the Exchange Act or otherwise, or induce or attempt to induce any other Person to initiate any such shareholder proposal or initiate any other action described in this Section 3(a)(ii2(a)(ii);
(iii) ; seek, propose propose, or make any public statement with respect to any to, a merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, acquisition by third parties sale or purchase of any Company Voting Securitiessecurities, dissolution, liquidation, reorganization, recapitalization or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a Change of its Affiliates or any Control of their businesses, except as contemplated by the Master Agreement and this Agreement;
(iv) Company; form, join or in any way participate in a Group "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to Beneficial Ownership of any Company Voting Securities or otherwise involving a transaction described in Section 3(a)(iii2(a)(iii) above, provided, however that nothing in this Section 3(a)(iv) shall preclude Stockholder, each other Restricted Party and Teck from forming a Group consisting solely of the Stockholder, Teck and their Affiliates as long as such Group does not otherwise violate any other provision of this Agreement;
(v) ; deposit any Company Voting Securities in any voting trust, loan any Company Voting Securities trust or subject any Company Voting Securities to any agreement, arrangement or understanding agreement with respect to the voting or Beneficial Ownership beneficial ownership of any Company Voting Securities other than this Agreement or grant any proxy with respect to any such securities to any Person not designated by the Company (except as provided in Section 4 below);
(vi) Agreement; call or seek to have called any meeting of the shareholders stockholders of the Company or execute any written consent with respect to the Company or Company Voting Securities (except as provided in Section 4(c) below);
(vii) Securities; otherwise act to influence or control or seek to control or influence or control seek to influence the management, Board of Directors or policies of the Company, including, without limitation, the composition or structure to induce a Change of Control of the Board of Directors, through the voting of any Company Voting Securities or otherwise;
(viii) Company; seek representation on the Board of Directors of the Company or seek the removal of any member of such Board; provided, however, that the appointment of Messrs. Galloway xxx Xxxr to xxx Board of Directors;
(ix) Directors of the Company in accordance with the Settlement Agreement shall not constitute a violation of this provision; make or initiate any proposal or publicly disclose publicly any intention to make any proposal (whether or not subject to any conditions) or enter into any discussion regarding any of the actions described in this Section 3;
(x) 2(a); take any action relating specifically to the Company (and without regard to any actions which might encourage, induce, persuade or public statements regarding Stockholder’s, Teck’s or any other Restricted Party’s business or operations or the mining or precious metals industries generally), which encourages, induces, persuades or forces force another Person to make a public announcement relating in any way to the Company Company, its subsidiaries or its business regarding any of its Subsidiaries regarding the types of matters set forth in this subsection; or encourage, solicit, assist, institute, participate in, finance or support, or enter into any discussions, negotiations, understandings, agreements or arrangements with, any other Person Person, individual, entity or party with respect to any of the foregoing;
(xi) ; make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request to amend, waive or terminate any provision of this Agreement; or
(xii) or have any discussions or communications withcommunications, or enter into any arrangements, understandings understandings, or agreements (whether written or oral) with, or advise, finance, assist or invest encourage, any other Person in connection with any of the foregoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing.
. During the Standstill Period none of the Ellin Group or any member thereof shall, and Ellin shall cause his other Affiliates, agents and representatives not to, directly or indirectly, effect, cause, participate in, or seek, offer, attempt or propose (bwhether publicly or otherwise) Nothing to effect, cause, participate in, seek, offer, attempt or propose any of the activities described in Section 3(a2(a) above. Provided that none of the Ellin Group, its Affiliates, agents and representatives engages in any conduct otherwise prohibited by Section 2(a) above, (i) the record and/or beneficial ownership by the Ellin Group of the Existing Position (together with any Common Stock permitted to be purchased pursuant to Section 2(d) below), (ii) the fact that the Ellin Group may constitute a "group" within the meaning of Section 13(d) of the Exchange Act, (iii) their voting of the Common Stock represented by the Existing Position (together with any Common Stock permitted to be purchased pursuant to Section 2(d) below) and (iv) Ellin's private communications with the Nominee Directors (as defined in Section 2(e) hereof) for the purpose of conveying his views to them and to management generally with respect to governance and other matters affecting the business and affairs of the Company shall not be deemed to constitute a breach of Sections 2(a)(iv), (v) or (vii) of this Agreement shall prevent StockholderAgreement, provided that such activities are not associated with any public statements of any kind relating thereto or other actions otherwise prohibited by this Agreement. During the Standstill Period, provided that each other Restricted Party or Teck from Transferring and all of the Common Stock it Beneficially Owns members of the Ellin Group have at all times complied and are then in accordance compliance with Section 5 all provisions of this Agreement., and Ellin provides to the Company written certification containing a representation and warranty to that effect, then notwithstanding the provisions of Section 2(a)(i) above:
Appears in 1 contract
Standstill and Related Provisions. (a) Subject to Section 3(b) The Investor Group agrees that for a period commencing on the date of this Agreement, during Agreement and terminating on the third anniversary of the Effective Time (the "Standstill Period"), Stockholderwithout the prior written consent of the Board of Directors of the Company specifically expressed in a resolution adopted by a majority of the directors of the Company, each other Restricted Party and Teck each agrees that it the Investor Group will not, and will cause each of its other Affiliates, agents and representatives not to, directly or indirectly, by operation of law or otherwise, alone or in concert with others:
(ia) acquire, offer, offer or propose or agree to acquire, or obtain an option agree to acquire any additional shares of Common Stock of the Company (or right its rights to acquireacquire such Common Stock), directly except, in any case, by way of stock dividends or indirectlyother distributions or rights offerings made available to holders of any shares of the Common Stock of the Company generally, whether share-splits, reclassifications, recapitalizations, reorganizations and any other similar action taken by purchase, tender offer, exchange offer, put or call option, hedging transaction, stock loan, through the acquisition of control of another Person or otherwise, any Company Voting Securities (except in connection with any stock split, stock dividend, recapitalization or similar transaction)Company;
(iib) make, or in any way participate, directly or indirectly, in any “"solicitation” " (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) of proxies or consents with respect to the Company Voting Securities (whether or not relating to the election or removal of directors), advise, seek to advise, encourage or influence any Person with respect to the voting of any Company Voting Securitiesof the Common Stock of the Company, initiate, propose or otherwise “"solicit” " (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) shareholders of the Company for the approval of shareholder proposals, whether made pursuant to Rule 14a-8 of the Exchange Act or otherwise, or induce or attempt to induce any other Person to initiate any such shareholder proposal or initiate any other action described in this Section 3(a)(ii)otherwise communicate generally with the Company's shareholders;
(iiic) otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the management, Board of Directors or policies of the Company;
(d) seek, propose propose, or make any public statement with respect to to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, acquisition by third parties sale or purchase of any Company Voting Securitiessecurities, dissolution, liquidation, reorganization, recapitalization restructuring, recapitalization, change in capitalization, change in corporate structure or business or similar transaction involving the Company, any of Company or its Affiliates or any of their businesses, except as contemplated by the Master Agreement and this Agreementsubsidiaries;
(ive) form, join or in any way participate in a Group with respect to Beneficial Ownership "group" (within the meaning of any Company Voting Securities or otherwise involving a transaction described in Section 3(a)(iii13(d)(3) above, provided, however that nothing in this Section 3(a)(iv) shall preclude Stockholder, each other Restricted Party and Teck from forming a Group consisting solely of the Stockholder, Teck and their Affiliates as long as such Group does not otherwise violate any other provision of this Agreement;
(vExchange Act) deposit any Company Voting Securities in any voting trust, loan any Company Voting Securities or subject any Company Voting Securities to any agreement, arrangement or understanding with respect to the voting or Beneficial Ownership of any Company Voting Securities other than this Agreement or grant any proxy with respect to any such securities to any Person not designated by of the Company (except as provided in Section 4 below);Common Stock of the Company, other than groups consisting solely of members of the Investor Group; and
(vif) request or cause to be requested for any purpose, the Company's stock ledger, a list of the Company's shareholders, or the Company's other books and records; or to call or seek to have called any meeting of the shareholders of the Company or execute any written consent with respect to the Company or Company Voting Securities (except as provided in Section 4(c) below);
(vii) otherwise act to influence or control or seek to influence or control the management, Board of Directors or policies Common Stock of the Company, including, without limitation, the composition or structure of the Board of Directors, through the voting of any Company Voting Securities or otherwise;
(viii) seek representation on the Board of Directors or seek the removal of any member of the Board of Directors;
(ix) make or initiate any proposal or disclose publicly any intention to make any proposal (whether or not subject to any conditions) or enter into any discussion regarding any of the actions described in this Section 3;
(x) take any action relating specifically to the Company (and without regard to any actions or public statements regarding Stockholder’s, Teck’s or any other Restricted Party’s business or operations or the mining or precious metals industries generally), which encourages, induces, persuades or forces another Person to make a public announcement relating to the Company or any of its Subsidiaries regarding the matters set forth in this subsection; or encourage, solicit, assist, institute, participate in, finance or support, or enter into any discussions, negotiations, understandings, agreements or arrangements with, any other Person with respect to any of the foregoing;
(xi) make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with . Notwithstanding the foregoing, or make or disclose any request to amend, waive or terminate any provision of this Agreement; or
(xii) have any discussions or communications with, or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or invest in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any Affiliates of the foregoing.
(b) Nothing Investor Group in Section 3(a) the ordinary course of this Agreement shall prevent Stockholder, each other Restricted Party or Teck from Transferring the conduct of such Affiliates' business may engage in investment banking activities and purchases and sales of Common Stock it Beneficially Owns in accordance with Section 5 and other securities of this Agreementthe Company as broker-dealers or otherwise.
Appears in 1 contract
Standstill and Related Provisions. (a) Subject to Section 3(b) of this Agreement, during During the Standstill PeriodPeriod the Ellin Group, Stockholderand each member thereof, agrees that without the prior written consent of the Board of Directors of the Company specifically expressed in a resolution adopted by a majority of the directors of the Company, the Ellin Group will not, each other Restricted Party and Teck each agrees that it member of the Ellin Group will not, and Ellin will cause each of its his other Affiliates, agents and representatives not to, directly or indirectly, by operation of law or otherwise, alone or in concert with others:
(i) acquire, acquire or offer, propose or agree to acquire, or obtain an option or right to acquire, directly or indirectly, whether by purchase, tender offer, or exchange offer, put or call option, hedging transaction, stock loan, through the acquisition of control of another Person or otherwise, any Company Voting Securities (except in connection with any stock split, stock dividend, recapitalization or similar transaction)other securities of the Company;
(ii) make, or in any way participate, directly or indirectly, in any “"solicitation” " (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) of proxies or consents with respect to the Company Voting Securities (whether or not relating to the election or removal of directors), advise, seek to advise, encourage or influence any Person with respect to the voting of any Company Voting Securities, initiate, propose or otherwise “"solicit” " (as such term is used in the proxy rules of the Securities and Exchange Commission as in effect on the date hereof) shareholders stockholders of the Company for the approval of shareholder proposals, whether made pursuant to Rule 14a-8 of the Exchange Act or otherwise, or induce or attempt to induce any other Person to initiate any such shareholder proposal or initiate any other action described in this Section 3(a)(ii2(a)(ii);
(iii) seek, propose propose, or make any public statement with respect to any to, a merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, acquisition by third parties sale or purchase of any Company Voting Securitiessecurities, dissolution, liquidation, reorganization, recapitalization or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a Change of its Affiliates or any Control of their businesses, except as contemplated by the Master Agreement and this AgreementCompany;
(iv) form, join or in any way participate in a Group "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to Beneficial Ownership of any Company Voting Securities or otherwise involving a transaction described in Section 3(a)(iii2(a)(iii) above, provided, however that nothing in this Section 3(a)(iv) shall preclude Stockholder, each other Restricted Party and Teck from forming a Group consisting solely of the Stockholder, Teck and their Affiliates as long as such Group does not otherwise violate any other provision of this Agreement;
(v) deposit any Company Voting Securities in any voting trust, loan any Company Voting Securities trust or subject any Company Voting Securities to any agreement, arrangement or understanding agreement with respect to the voting or Beneficial Ownership beneficial ownership of any Company Voting Securities other than this Agreement or grant any proxy with respect to any such securities to any Person not designated by the Company (except as provided in Section 4 below)Agreement;
(vi) call or seek to have called any meeting of the shareholders stockholders of the Company or execute any written consent with respect to the Company or Company Voting Securities (except as provided in Section 4(c) below)Securities;
(vii) otherwise act to influence or control or seek to control or influence or control seek to influence the management, Board of Directors or policies of the Company, including, without limitation, the composition or structure to induce a Change of Control of the Board of Directors, through the voting of any Company Voting Securities or otherwiseCompany;
(viii) seek representation on the Board of Directors of the Company or seek the removal of any member of such Board; provided, however, that the appointment of Messrs. Xxxxxxxx and Xxxx to the Board of DirectorsDirectors of the Company in accordance with the Settlement Agreement shall not constitute a violation of this provision;
(ix) make or initiate any proposal or publicly disclose publicly any intention to make any proposal (whether or not subject to any conditions) or enter into any discussion regarding any of the actions described in this Section 32(a);
(x) take any action relating specifically to the Company (and without regard to any actions which might encourage, induce, persuade or public statements regarding Stockholder’s, Teck’s or any other Restricted Party’s business or operations or the mining or precious metals industries generally), which encourages, induces, persuades or forces force another Person to make a public announcement relating in any way to the Company Company, its subsidiaries or its business regarding any of its Subsidiaries regarding the types of matters set forth in this subsection; or encourage, solicit, assist, institute, participate in, finance or support, or enter into any discussions, negotiations, understandings, agreements or arrangements with, any other Person Person, individual, entity or party with respect to any of the foregoing;
(xi) make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request to amend, waive or terminate any provision of this Agreement; or
(xii) have any discussions or communications withcommunications, or enter into any arrangements, understandings understandings, or agreements (whether written or oral) with, or advise, finance, assist or invest encourage, any other Person in connection with any of the foregoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing.
(b) Nothing During the Standstill Period none of the Ellin Group or any member thereof shall, and Ellin shall cause his other Affiliates, agents and representatives not to, directly or indirectly, effect, cause, participate in, or seek, offer, attempt or propose (whether publicly or otherwise) to effect, cause, participate in, seek, offer, attempt or propose any of the activities described in Section 3(a2(a) above.
(c) Provided that none of the Ellin Group, its Affiliates, agents and representatives engages in any conduct otherwise prohibited by Section 2(a) above, (i) the record and/or beneficial ownership by the Ellin Group of the Existing Position (together with any Common Stock permitted to be purchased pursuant to Section 2(d) below), (ii) the fact that the Ellin Group may constitute a "group" within the meaning of Section 13(d) of the Exchange Act, (iii) their voting of the Common Stock represented by the Existing Position (together with any Common Stock permitted to be purchased pursuant to Section 2(d) below) and (iv) Ellin's private communications with the Nominee Directors (as defined in Section 2(e) hereof) for the purpose of conveying his views to them and to management generally with respect to governance and other matters affecting the business and affairs of the Company shall not be deemed to constitute a breach of Sections 2(a)(iv), (v) or (vii) of this Agreement Agreement, provided that such activities are not associated with any public statements of any kind relating thereto or other actions otherwise prohibited by this Agreement.
(d) During the Standstill Period, provided that each and all of the members of the Ellin Group have at all times complied and are then in compliance with all provisions of this Agreement, and Ellin provides to the Company written certification containing a representation and warranty to that effect, then notwithstanding the provisions of Section 2(a)(i) above:
(i) Ellin or another member of the Ellin Group may, by written request made not more frequently than once each calendar quarter (a "Request"), upon the written approval of such Request by the Company's Board of Directors as evidenced by written authorization of an executive officer of the Company, purchase additional shares of Common Stock by transactions executed regular way on the Nasdaq Stock Market--Small Cap Market (the "Nasdaq Stock Market") only, such that after such purchase or purchases the aggregate beneficial ownership of Common Stock held by the Ellin Group in all capacities shall prevent Stockholderbe not more than 15.0% of the shares of Common Stock outstanding (as of the date hereof, each other Restricted Party 873,846 shares), including the Company Voting Securities represented by the Existing Position. Any such purchases must be completed within 60 days of the approval of the Board of Directors, which may be given or Teck withheld in its sole discretion. The Company shall notify Ellin of its decision to approve or reject a Request not later than fifteen calendar days after receipt thereof; and
(ii) Without regard to the disposition of any Request under clause (d)(i) above, in the event that the Company receives written notification from Transferring the Nasdaq Stock Market that it intends to de-list, or to commence a de-listing proceeding with respect to, the Common Stock and the reason given for such de-listing or proceeding relates solely and exclusively to the prevailing trading prices of the Common Stock on the Nasdaq Stock Market, the Company shall promptly so advise Ellin in writing. Ellin, or other members of the Ellin Group, may, after the action or proposed action by the Nasdaq Stock Market has been made public, thereupon purchase shares of Common Stock by transactions executed regular way on the Nasdaq Stock Market only, in an amount not to exceed the amount of shares and percentage set forth in clause (i) of this Section 2(d), it Beneficially Owns being understood and agreed that such amount and percentage caps shall apply to all purchases, if any, made pursuant to clause (d)(i) and clause (d)(ii) in the aggregate; and
(iii) Each purchase of Common Stock permitted pursuant to Section 2(d)(i) or (ii) above is subject to the following: (A) Each and all of the members of the Ellin Group must at all times be in compliance with all provisions of this Agreement and all applicable provisions of United States Federal and state securities laws, including without limitation Sections 10, 13(d), and 16 under the Exchange Act and the rules and regulations promulgated thereunder by the Securities and Exchange Commission, including without limitation Rule 10b-5 and Rules 13d-1-13d-5, inclusive, thereof, the rules of the Nasdaq Stock Market and the rules of the National Association of Securities Dealers; (B) the Ellin Group shall on a timely basis amend and file Schedule 13D with respect to the Company Voting Securities, as required, and in addition, not later than two business days after each such purchase, notify the Company in writing by facsimile transmission as to each such purchase, the amount thereof and the aggregate holdings of Common Stock held by each and every member of the Ellin Group after giving effect to such purchase; (C) any purchase permitted by this Section 2(d) shall in not in any respect whatsoever constitute a waiver or modification of any of the other terms of this Agreement or diminish the obligations of each and every member of the Ellin Group or otherwise expand their rights hereunder; and (D)(x) having approved the purchase of Common Stock under Section 2(d)(i), as the case may be, the Company may at any time thereafter instruct Ellin by written notice to stop such purchases, or (y) if the condition precedent to purchases permitted under Section 2(d)(ii) shall have been satisfied, the Company may at any time thereafter instruct Ellin by written notice to stop such purchases if the Company deems such action advisable in order to comply with applicable laws or if the Company has been advised by the Nasdaq Stock Market that proceedings to de-list the Common Stock have been terminated and the Common Stock shall not have been de-listed, and in each case described under clause (x) or (y), as the case may be, each and all members of the Ellin Group shall thereupon refrain from further purchases, unless and until again permitted to do so under the foregoing provisions.
(e) It is contemplated under the Settlement Agreement that Messrs. Xxxxx Xxxxxxxx and Xxxx Xxxx (collectively, the "Nominee Directors") will be appointed to the Company's Board of Directors in accordance with the terms thereof. Notwithstanding Section 5 1(j) above, if during the Standstill Period (i) each of Messrs. Xxxxxxxx and Xxxx (x) is ready, willing and able to stand for nomination and election to the Company's Board of Directors and (y) has not been determined to be ineligible for such nomination or election in accordance with the Company's policies, certificate of incorporation and by-laws and applicable laws, and the Company refuses or fails to nominate either such person for election as a director to the Board of Directors at the same time that other candidates for election are so nominated, or (ii) either or both of Messrs. Xxxxxxxx and Xxxx are removed from office without cause, then in either case the Standstill Period shall thereupon immediately terminate. Termination of the Standstill Period prior to the term specified in Section 1(j) pursuant to this AgreementSection 2(e) shall not apply in the case of a failure or refusal of either or both of Messrs. Xxxxxxxx or Xxxx to stand for nomination or election, the resignation of either or both of them, the removal from office for cause or the inability of either or both to stand for election or serve as a director as a result of disability or death.
Appears in 1 contract
