Common use of Standstill Agreements Clause in Contracts

Standstill Agreements. Each Stockholder agrees that, during the period from the date of this Agreement through and including the date on which NMS holds its 2009 annual meeting of stockholders (which date shall be no later than June 29, 2009) or, if the Asset Sale is not consummated by 11:59 pm (Boston time) on December 31, 2008, through and including the earlier of (i) 11:59 pm (Boston time) on December 31, 2008 or (ii) the date on which the Purchase Agreement is terminated in accordance with its terms (the “Standstill Period”), neither such Stockholder nor any of such Stockholder’s Affiliates will, except as may be required by the performance of its obligations under this Agreement, without the written consent of NMS, directly or indirectly, solicit, request, advise, assist or encourage others to: (a) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement; (b) solicit proxies or written consents of stockholders with respect to Common Stock under any circumstances, or make, or in any way participate in, any “solicitation” of any “proxy” to vote any shares of Common Stock, or become a “participant” in any contested solicitation for the election of directors with respect to NMS (as such terms are defined or used in Rules 14a-1 and Item 4 of Schedule 14A under the Exchange Act), or seek to advise or influence any person with respect to the voting, holding or disposition of any shares of Common Stock; (c) seek to call, or to request the call of, a special meeting of the stockholders of NMS, or seek to make, or make, a stockholder proposal at any meeting of the stockholders of NMS or make a request for a list of NMS’s stockholders; (d) commence or announce any intention to commence any tender offer for any shares of Common Stock, or file with or send to the SEC a Schedule 13D or any amendments to any Schedule 13D under the Exchange Act with respect to the Common Stock to reflect changes to the disclosures set forth therein and exhibits filed therewith, except (i) for an amendment to the Schedule 13D previously filed with the SEC by a Stockholder with respect to the Shares (a “Current Schedule 13D”), provided that such Stockholder shall, prior to the filing of such amendment with the SEC, provide NMS with a copy of such amendment as it is proposed to be so filed and a reasonable opportunity to review and comment thereon, or (ii) to the extent such amendment is filed solely to report one or a combination of (A) purchases of Common Stock, (B) dispositions of Common Stock (including dispositions that reduce such Stockholder’s beneficial ownership below 5%), (C) other action (if any) permitted by this Agreement, or (D) material litigation involving this Agreement (if, but only if, the reporting of such litigation on such amendment is required by law and such Stockholder has given NMS, in writing, a copy of the proposed amendment at least three (3) days prior to the filing thereof). In addition, a Stockholder may file a Schedule 13D to comply with amendments after the date hereof to Section 13(d) of the Exchange Act, to the rules promulgated thereunder, or to the SEC’s interpretation of either of the foregoing (it being understood that nothing contained in this Section 6(d) shall be deemed to permit any action or disclosure that is otherwise prohibited by this Agreement). Such permitted amendments shall be referred to as the “Permitted Schedule 13D Amendments.” In no case shall Item 4 of the Current Schedule 13D be amended, except as otherwise permitted by this Section 6; (e) take any action or form any intention which would require an amendment to a Current Schedule 13D (other than amendments containing only Permitted Schedule 13D Amendments); (f) make a proposal or bid with respect to, or announce any intention or desire to make, or publicly make or disclose, cause to be made or disclosed publicly, any proposal or bid with respect to, the acquisition of any substantial portion of the assets of NMS or of all or any portion of the outstanding Common Stock (except that a Stockholder may file Permitted Schedule 13D Amendments), or any merger, consolidation, other business combination, restructuring, recapitalization, liquidation or other extraordinary transaction involving NMS; (g) act alone or in concert with others to seek control or influence in any manner the management, the Board (including the composition thereof) or the business, operation or affairs of NMS; provided, however, that nothing contained herein shall prohibit a Stockholder Designee from exercising his or her duties and obligations as a director of NMS or otherwise taking any action while acting in such capacity as a director of NMS, nor shall anything contained herein prohibit or restrict any Stockholder from discussing matters relating to the management, the Board, or the business, operation or affairs of NMS with management, the Board or any director of NMS to the extent any such discussions comply with applicable securities laws; or (h) publicly disclose, or cause or facilitate the public disclosure (including by disclosure to any journalist or other representative of media) of, any request to obtain any waiver or consent under, or any amendment of, any provision of this Agreement.