Common use of Standstill Period Clause in Contracts

Standstill Period. For so long as Sponsor Stockholder is entitled to designate an individual for election to the Board pursuant to Section 3.01 (the “Standstill Period”), Sponsor Stockholder shall not, and shall cause each Sponsor and their respective Affiliates not to, directly or indirectly, alone or acting in concert or as a “group” (as defined in Section 13(d) of the Exchange Act) with any holders of Common Stock, but subject, in each case, to the provisions of Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other voting securities of the Company or options, rights to acquire or other derivative instruments with respect thereto, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(a), the “Acquisition Restrictions”); (b) call or seek to call a meeting of the Company’s stockholders or initiate a stockholder proposal for action by the Company’s stockholders; (c) engage in, directly or indirectly, any “solicitation” (as such term is defined under the Exchange Act) of proxies or consents with respect to the election or removal of directors or other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents; (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oral), or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, any of the foregoing.

Standstill Period. For so long (a) During the Standstill Period and except as Sponsor Stockholder expressly provided otherwise in Section 3.01 regarding the 2015 Annual Meeting, at each meeting of the Company’s stockholders (whether an annual or a special meeting), or with respect to each action by written consent of the Company’s stockholders, the Leap Tide Group will cause all of the voting securities of the Company of which the Leap Tide Group is entitled the Beneficial Owners to designate an individual (i) be present for quorum purposes, (ii) be voted in favor of any and all directors nominated by the Board for election and (iii) be voted against (or abstain from voting on) any proposal made by any of the Company’s stockholders that is not recommended by the Board; provided, however, in the event that ISS recommends voting “against” with respect to with respect to proposals, then Leap Tide Group shall be permitted to vote in accordance with the Board pursuant to Section 3.01 ISS recommendations. (b) At all times during the “Standstill Period”), Sponsor each Leap Tide Stockholder and its Affiliates shall not, and shall cause each Sponsor and their respective Affiliates not to, directly or indirectly, alone without the prior written consent of the Company: (i) solicit, or acting participate in concert or as a “group” encourage any solicitation of, proxies (as such terms are defined in Section 13(d) of Rule 14a-1 promulgated under the Exchange Act) with respect to any holders of Common Stock, but subject, in each case, to the provisions of Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other voting securities of the Company or options, rights become a participant in any contest relating to acquire or other derivative instruments with respect thereto, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected to require public disclosure by the election of directors of the Company or Sponsor Stockholder other stockholder proposals (whether made pursuant to Rule 14a-8 under the restrictions specified in this Section 5.01(a), Exchange Act or otherwise) not recommended for approval by the “Acquisition Restrictions”)Board; (bii) call vote in favor of the removal of any director serving on the Board who has previously been nominated by the Board; (iii) propose or seek attempt to call a special meeting of stockholders; (iv) seek, solicit support for, encourage or participate in (whether publicly or privately), any stockholder action without a meeting of the Company’s stockholders or initiate a stockholder proposal of the Company that is not recommended for action approval by the Company’s stockholdersBoard; (cv) engage indeposit or maintain any voting securities of the Company in a voting trust or similar arrangement; (vi) take any action to form, directly join or indirectlyin any way participate in any partnership, any “solicitation” limited partnership, syndicate or other Group (as such term is defined under other than solely among members of the Exchange ActLeap Tide Group) of proxies or consents with respect to the election Company’s voting securities or removal otherwise act in concert with any Person for the purpose of directors circumventing the provisions or purposes of this Agreement; (vii) otherwise act, individually or in concert with any Person, to seek to control, direct or influence the management, Board (or any individual members thereof) or policies of the Company; provided that this Section 3.06(b)(viii) shall not prevent the Leap Tide Group from speaking privately with members of the Board or management for the purpose of offering their suggestions or other matter input regarding the Company; (viii) encourage, advise or proposal relating influence any other person or assist any third party in so encouraging, assisting or influencing any Person with respect to the giving or withholding of any proxy vote at any annual or special meeting of stockholders in opposition to any nominee on the Company’s slate of nominees for election as directors of the Company or become a “participant” (as such term is defined in Instruction 3 opposition to Item 4 of Schedule 14A promulgated under the Exchange Act) in Board’s recommendation for any such solicitation of proxies or consentsother proposal brought before the meeting; (dix) seek election finance or appointment to, offer to provide financing for an attempt by any Person to engage in any of the activities or representation on, actions in which the Board, Leap Tide Group is prohibited or nominate or propose restricted from engaging in by the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01terms of this Agreement; (ex) enter into make or in any negotiationsway advance any request or proposal to amend, arrangementsmodify or waive any provision of this Agreement except in a nonpublic and confidential manner which nonpublic and confidential request or proposal is not reasonably likely to require disclosure by any party hereto, discussions, agreements pursuant to the Securities Act or understandings with (whether written the Exchange Act or oral), any rule or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause any of the foregoing actionsregulation promulgated thereunder; or (fxi) make any public announcement with respect toannounce an intention to do, solicit, assist, prompt, induce or make any public announcement inconsistent with, or contesting the validity ofattempt to induce others to do, any of the foregoingactions restricted or prohibited under subparagraphs (i) through (x) above.

Standstill Period. For so long (a) Except as Sponsor Stockholder is entitled to designate an individual for election to provided in Section 4(b), each member of the Board pursuant to Section 3.01 Barington Group agrees that, from the date of this Agreement until the earlier of November 17, 2008 and the Company’s 2008 annual meeting of shareholders (such period, the “Standstill Period”), Sponsor Stockholder shall notwithout the prior written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, neither it nor any of its Affiliates or Associates under its control or direction will, and shall it will cause each Sponsor of its Affiliates and their respective Affiliates Associates under its control not to, directly or indirectly, in any manner: (i) engage in any solicitation of proxies or consents to vote any voting securities of the Company or become a participant in any election contest with respect to the Company; (ii) seek to influence any person with respect to the voting or disposition of any securities of the Company; provided, however, that any member of the Barington Group and any Affiliate or Associate of any such member may disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor; (iii) demand a copy of the Company’s list of shareholders or its other books and records; (iv) otherwise publicly act, alone or acting in concert with others, to seek to influence the management, the Board or policies of the Company or initiate or take any action to obtain representation on the Board, except as permitted expressly by this Agreement; (v) form, join or in any way participate in a “group” (as defined in Section 13(d) of under the Exchange Act) with respect to the Company, except that nothing contained herein shall prohibit members of the Barington Group or their Affiliates and Associates from (x) participating in a group to the extent such group currently exists, (y) adding its Affiliates or Associates to such group, or (z) participating in a group to the extent that such group does not take any holders actions that any member of Common Stockthe Barington Group would be prohibited from doing individually pursuant to this Section 4(a); or (vi) enter into any agreements with any third party with respect to any of the foregoing, but subjectexcept in each case, as contemplated by this Agreement. (b) Nothing in Section 4(a) shall limit any member of the Barington Group or the Associates or Affiliates of such member from taking any of the actions otherwise prohibited by Section 4(a) in connection with the 2008 annual meeting of shareholders of the Company, including without limitation, nominating directors or soliciting proxies for the election of directors or other purposes, requesting a shareholder list, related information and other books and records, making public filings or announcements or taking any other action, in each case, related to the provisions solicitation of Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other voting securities proxies at the 2008 annual meeting of shareholders of the Company Company; provided, however, that each member of the Barington Group and its Associates or options, rights to acquire or other derivative instruments Affiliates shall (i) comply with respect thereto, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(a), the “Acquisition Restrictions”); (b) call or seek to call a meeting terms of the Company’s stockholders Code of Regulations as in effect on the date hereof as they apply to the 2008 annual meeting of shareholders of the Company (including without limitation provisions relating to the nomination of directors), and (ii) refrain from soliciting proxies or initiate a stockholder proposal making public filings or announcements in connection with the solicitation of proxies for action by the Company’s stockholders;2008 annual meeting of shareholders prior to the earlier of (x) the submission of a timely notice of an intent to nominate persons to serve as directors at the 2008 annual meeting of shareholders, and (y) August 15, 2008. (c) engage inAs used in this Agreement, directly or indirectly, any the terms “solicitationAffiliate” (as such term is defined and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act) of proxies or consents with respect to ; the election or removal of directors or other matter or proposal relating to terms “beneficial owner” and “beneficial ownership” shall have the Company or become a “participant” (same meanings as such term is defined set forth in Instruction 3 to Item 4 of Schedule 14A Rule 13d-3 promulgated by the SEC under the Exchange Act) in ; and the terms “person” or “persons” shall mean any such solicitation of proxies or consents; individual, corporation (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oralincluding not-for-profit), general or adviselimited partnership, financelimited liability company, joint venture, estate, trust, association, organization or solicit, other entity of any kind or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, any of the foregoingnature.

Standstill Period. For so long as Sponsor Stockholder is entitled to designate an individual for election to (a) Each member of the Board pursuant to Section 3.01 Barington Group agrees that, from the date of this Agreement until the earlier of June 30, 2008 and the Company’s 2008 annual meeting of shareholders (such period, the “Standstill Period”), Sponsor Stockholder shall notwithout the prior written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, and shall cause each Sponsor and their respective neither it nor any of its Affiliates not toor Associates under its control or direction will: (i) propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, singly or with any other person, directly or indirectly, (x) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries or (y) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries; (ii)(x) acquire, offer or propose to acquire any voting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof) of the Company, (y) effect any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (z) engage in any solicitation of proxies or consents to vote any voting securities of the Company in opposition to the recommendation of the Board with respect to any matter; (iii) seek to influence any person with respect to the voting or disposition of any securities of the Company; provided, however, that any member of the Barington Group and any Affiliate or Associate of any such member may disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any Board-approved shareholder proposal or other matter to be voted on by the shareholders of the Company (other than the election of directors) and the reasons therefor; (iv) otherwise act, alone or acting in concert with others, to seek to control or influence the management, the Board or policies of the Company or initiate or take any action to obtain representation on the Board, except as permitted expressly by this Agreement; or (v) enter into any agreements with any third party with respect to any of the foregoing, except, in each case, as contemplated by this Agreement. The foregoing notwithstanding: (A) any member of the Barington Group and any Affiliate or Associate of any such member may (1) transfer any shares of Common Stock to, or acquire any shares of Common Stock from, any other member of the Barington Group or any other Affiliate or Associate of the foregoing, (2) form a “group” pursuant to Rule 13d-5 promulgated by the SEC under the Exchange Act with, or acquire additional shares of Common Stock from, any party so long as after the formation of such group or acquisition of such additional shares the members of the Barington Group and their Affiliates and Associates, together with any other parties who, together with the Barington Group and their Affiliates and Associates, may then constitute a “group” (as defined all such parties, the “Standstill Group”) do not beneficially own in Section 13(dthe aggregate at any time during the Standstill Period a number of shares of Common Stock equal to more than (x) 14.99% of the Exchange Actshares of Common Stock outstanding as of the date of this Agreement plus (y) with any holders 14.99% of the shares of Common Stock, but subjectif any, issued by the Company following the date of this Agreement (such amount, the “Standstill Amount”), or (3) sell or otherwise dispose of shares of Common Stock in the open market, in privately negotiated transactions or otherwise; (B) the Barington Group, and its Affiliates and Associates will not be in breach of this Section 5 if, upon learning of the inadvertent acquisition of beneficial ownership of Common Stock increasing the aggregate beneficial ownership of the Standstill Group above the Standstill Amount, members of the Standstill Group immediately divest themselves of a sufficient number of shares of Common Stock to decrease the aggregate beneficial ownership of the Standstill Group to be equal to, or less than, the Standstill Amount; (C) nothing contained in this Agreement shall limit any member of the Barington Group or the Associates or Affiliates of such member from (i) taking any of the actions otherwise prohibited in this Agreement in connection with the 2008 annual meeting of shareholders of the Company, including without limitation, nominating directors or soliciting proxies for the election of directors or other purposes, requesting a shareholder list and related information, making public filings or announcements or taking any other action, in each case, related to the solicitation of proxies at the 2008 annual meeting of shareholders of the Company; (ii) making and consummating a proposal or a tender offer or exchange offer to acquire all the shares of the Company’s Common Stock, provided that such proposal or offer is made solely to, and subject to the approval of, the Board; or (iii) voting shares of Common Stock in any manner its sees fit at any annual or special meeting of shareholders of the Company, subject to the limitations set forth in Section 3(e) of this Agreement; and (D) the provisions of this Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, 5 shall not limit in any other voting securities respect the actions of any director of the Company in his or optionsher capacity as such, rights recognizing that such actions are subject to acquire or other derivative instruments with respect thereto, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected such director’s fiduciary duties to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(a), the “Acquisition Restrictions”);and its shareholders. (b) call or seek to call a meeting of As used in this Agreement, the Company’s stockholders or initiate a stockholder proposal for action terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the Company’s stockholders; (c) engage in, directly or indirectly, any “solicitation” (as such term is defined SEC under the Exchange Act) of proxies or consents with respect to ; the election or removal of directors or other matter or proposal relating to terms “beneficial owner” and “beneficial ownership” shall have the Company or become a “participant” (respective meanings as such term is defined set forth in Instruction 3 to Item 4 of Schedule 14A Rule 13d-3 promulgated by the SEC under the Exchange Act) in ; and the terms “person” or “persons” shall mean any such solicitation of proxies or consents; individual, corporation (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oralincluding not-for-profit), general or adviselimited partnership, financelimited liability company, joint venture, estate, trust, association, organization or solicit, other entity of any kind or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, any of the foregoingnature.

Standstill Period. For so long (a) Each member of the Longkloof Entities agrees that, from the date of this Agreement until the earlier of (i) 11:59 p.m., U.S. Mountain Time, on December 31, 2012 or (ii) the occurrence of a Standstill Termination Event (as Sponsor Stockholder is entitled to designate an individual for election to the Board pursuant to Section 3.01 defined below) (such period, the “Standstill Period”), Sponsor Stockholder shall notwithout the prior express written consent of the Special Committee or, if the Special Committee is disbanded, the express written consent of the Board (with the Board’s consent specifically expressed in a written resolution adopted by a majority vote of the entire Board), neither it nor any of its Affiliates or Associates nor any other person acting under the control or direction of any member of the Longkloof Entities, will, and shall each member of the Longkloof Entities will cause each Sponsor of its Affiliates, Associates and their respective Affiliates such other persons not to, directly or indirectly, alone or acting in concert with others, in any manner: (i) engage in any solicitation of proxies to vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies with respect to any voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board, or recommend or request or attempt to induce any other person to take any such actions or seek to advise, encourage or influence any person with respect to the voting of or disposition of any securities of the Company, other than in a manner consistent with the Board’s recommendation with respect thereto, in each case solely with respect to a Board Director Nomination Proposal or a Change in Control Transaction that has been approved, and recommended to shareholders, by the Board; (ii) purchase or cause to be purchased or otherwise acquire or agree to acquire economic ownership of any additional shares of Common Stock or other securities issued by the Company (other than pursuant to the Sales Process) in excess of any shares of Common Stock sold in the aggregate by the Longkloof Entities during the Standstill Period; (iii) initiate, propose or otherwise “solicit” shareholders of the Company for the approval of shareholder proposals (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise); (iv) communicate with shareholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act (other than other members of the Longkloof Entities) with respect to a Board Director Nomination Proposal or a Change in Control Transaction that has been approved, and recommended to shareholders, by the Board; (v) engage in any course of conduct with the purpose of causing shareholders of the Company to vote contrary to the recommendation of the Board with respect to a Board Director Nomination Proposal or a Change in Control Transaction that has been approved, and recommended to shareholders, by the Board; (vi) otherwise publicly act to seek to influence the management, the Board or policies of the Company; (vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person other than pursuant to the Sales Process; (viii) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company, other than pursuant to the Sales Process; (ix) seek to call, or to request the call of, or call a special meeting of the shareholders of the Company or request that a record date be set for the determination of shareholders so entitled to make such a request or call such a special meeting; (x) seek election to the Board or seek to place a representative on the Board, except as otherwise expressly permitted pursuant to this Agreement; (xi) seek the removal of any director from the Board; (xii) form, join or in any other way participate in any “group” (as defined in within the meaning of Section 13(d13(d)(3) of the Exchange Act) with any holders of Common Stock, but subject, in each case, respect to the Common Stock (other than a “group” that includes some or all of the members of the Longkloof Entities); provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of the Longkloof Entities to join the “group” following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement and is included in the Schedule 13D filed by the Longkloof Entities with the SEC; provided, further, that no such Affiliate or Associate of the Longkloof Entities shall include any current or former Affiliate or Associate of the Company; (xiii) demand a copy of the Company’s list of shareholders or other books and records, whether pursuant to Section 0-000-000 of the Colorado Business Corporation Act, as amended (the “CBCA”), any successor statute, or otherwise; (xiv) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity of any provisions of this Section 5.02:6; (axv) acquirecommence, offer encourage, or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors; (xvi) engage in any inquiries or communications regarding the Strategic Review Process with any member of the Board, executive or other employee of the Company, or seek any confidential information in connection therewith from such person, without the express written consent of the chairman of the Special Committee or, if the Special Committee is disbanded, the express written consent of the Board (with the Board’s consent specifically expressed in a written resolution adopted by a majority vote of the entire Board) (provided that the Longkloof Entities and their Affiliates and Representatives shall be permitted to communicate with Avondale and the Special Committee’s legal advisors regarding the Strategic Review Process); (xvii) request the Company (or its directors, officers, employees, agents or representatives) to amend or waive any provision of this paragraph; (xviii) advise, assist, encourage, finance or seek to acquirepersuade others to take any action with respect to the foregoing; (xix) enter into any agreements, arrangements or agree understandings, written or oral, with any third party with respect to acquire Common Stockany of the foregoing; (xx) take any action that could reasonably be expected to force the Company to make any public disclosure with respect to any of the foregoing; (xxi) disclose publicly or privately, in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing; or (xxii) take any action challenging the validity of any provisions of this Section 6. (b) As of the date of this Agreement, the members of the Longkloof Entities are not engaged in any discussions or negotiations (other voting than their discussions with the Special Committee and its financial advisor) and do not have any arrangements, agreements or understandings with any persons, written or oral, whether or not legally enforceable, concerning the acquisition of economic ownership of any securities of the Company or optionsany of the items in Section 6(a) and have no actual knowledge, rights without giving effect to any duty to make any inquiry, that any other shareholders of the Company have any present intention of conducting any of the actions described paragraphs (vii), (ix), (x), (xi), and (xv) of this Section 6(a). Each of the members of the Longkloof Entities agrees during the Standstill Period to refrain from taking any actions which could have the effect of encouraging or supporting other shareholders to engage in the actions referred to in the previous sentence. (c) Notwithstanding anything to the contrary contained herein, except as expressly provided in Section 5(d) or Section 6(a), each member of the Longkloof Entities shall be entitled to: (i) otherwise vote its Longkloof Entities Shares as it determines in its sole and absolute discretion with respect to any proposals that are recommended to shareholders by the Board or otherwise duly brought before shareholders, and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefore other than, during the Standstill Period, with respect to a Board Director Nomination Proposal or a Change in Control Transaction that has been approved, and recommended to shareholders, by the Board; provided that, as applicable, all such activity is in compliance with the requirements of Section 5(d) or Section 6(a). (d) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially ownership,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including, without limitation, pursuant to a cash settled call option or other derivative instruments with respect theretosecurity, contract or instrument in any way related to the price of shares of Common Stock; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and the term “Standstill Termination Event” means (A) the Company enters into a definitive agreement for a Change of Control Transaction or redeems any rights under, or make modifies or agrees to modify, any shareholder rights plan to facilitate a Change of Control Transaction, or (B) a tender or exchange offer which if consummated would constitute a Change of Control Transaction is made for securities of the Company and the Board either accepts such offer or propose any mergerfails to recommend that its shareholders reject such offer within ten (10) business days from the date of commencement of such offer (other than, consolidation in the case of (A) or (B) above, an all-cash Change of Control Transaction that is at a price per share greater than the price per share most recently proposed in writing by the Longkloof Entities in a bona fide, acquisition proposal to acquire the Company pursuant to an all-cash tender offer, not conditioned on the receipt of third-party financing or any regulatory approvals (other business combination, either publicly or in a manner that would reasonably than customary filings required to be expected to require public disclosure by made with the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(aSEC), the “Acquisition Restrictions”); (b) call or seek to call a meeting of the Company’s stockholders or initiate a stockholder proposal for action by the Company’s stockholders; (c) engage in, directly or indirectly, any “solicitation” (as such term is defined under the Exchange Act) of proxies or consents with respect which was submitted to the election Special Committee or removal of directors or other matter or proposal relating its financial advisor pursuant to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents; (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oralSales Process), or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, any of the foregoing.

Standstill Period. For so long Each Wintergreen Investor agrees that, beginning as Sponsor Stockholder of the date hereof and continuing until the date that is entitled to designate an individual 30 days before the last date on which a shareholder of the Company may submit nominations for election to the Board pursuant to Section 3.01 in connection with the 2012 Annual Meeting of Shareholders (the “Standstill Period”), Sponsor Stockholder shall not, and shall cause each Sponsor and their respective neither it nor any of its Affiliates not toor Associates will, directly or indirectly, in any manner, without the prior written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board: (a) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect any (i) tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries; (ii) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries or (iii) any form of 3 restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries; (b) acquire, offer or propose to acquire any voting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof) of the Company if after any such case, immediately after the taking of such action the Wintergreen Investors, together with its respective Affiliates, would in the aggregate, beneficially own more than 1,500,000 shares of Company Common Stock (as adjusted for reverse stock splits, stock splits, and stock dividends); (c) engage in any solicitation of proxies or consents to vote any voting securities of the Company in opposition to the recommendation of the Board with respect to any matter, including the election of directors; (d) knowingly seek to influence any person with respect to the voting of any securities of the Company in opposition to the recommendation of the Board with respect to any matter, including but not limited to the election of members of the Board, unless requested to do so by the Company; (e) otherwise act, alone or acting in concert with others, to knowingly seek to control or influence the Board or the management or policies of the Company; (f) otherwise act, alone or in concert with others, to seek to control the Board or initiate or take any action to obtain representation on the Board, or seek the removal of any director from the Board; (g) take any action to seek to amend any provision of the Company’s Articles of Incorporation or Bylaws, as amended and restated, except as may be approved by the Board; (h) grant any proxy rights with respect to the Common Stock to any person not designated by the Company; (i) call or seek to have called any meeting of the shareholders of the Company; (j) propose any matter for submission to a vote of the shareholders of the Company; (k) vote for any matter submitted to a vote of the shareholders that is proposed by any third party; (1) make any demand to inspect the books and records of the Company or demand a copy of the Company’s list of shareholders, including pursuant to any statutory rights the Wintergreen Investors may have; (m) execute any written consents, waiver or demand with respect to the Common Stock; 4 (n) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any proxy solicitation other than a proxy solicitation by the Company, (ii) concerning any matter described in (a) through (k) above, or (iii) negatively commenting upon the Company, including the Company’s management, the Board and the Company’s strategy, business plan or corporate activities; (o) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company on or following the date of this Agreement: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format (including on the Internet), (iii) to any journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) or (iv) in any letter or other communication to or with any shareholder of the Company; (p) request the Company to amend, waive or terminate any provision of this Agreement (including this sentence); (q) enter into any agreements with any third party with respect to any of the foregoing or take any action which might force the Company to make a public announcement regarding any of the foregoing; or (r) form, join or in any way participate in a “group” (as defined in Section 13(d13(d)(3) of the Exchange Act) with any holders of Common Stock, but subject, in each case, to the provisions of Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other voting securities of the Company or options, rights to acquire or other derivative instruments with respect thereto, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly for or in a manner that would reasonably be expected to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(a), the “Acquisition Restrictions”); (b) call or seek to call a meeting of the Company’s stockholders or initiate a stockholder proposal for action by the Company’s stockholders; (c) engage in, directly or indirectly, any “solicitation” (as such term is defined under the Exchange Act) of proxies or consents connection with respect to the election or removal of directors or other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents; (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oral), or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, any of the foregoingpurposes.

Standstill Period. For so long as Sponsor Stockholder is entitled to designate an individual for election to (a) Each member of the Board pursuant to Section 3.01 Ramius Group agrees that, from the date of this Agreement until after the date of the 2008 Annual Meeting (such period, the “Standstill Period”), Sponsor Stockholder shall notwithout the prior written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, neither it nor any of its Affiliates or Associates under its control or direction will, and shall it will cause each Sponsor of its Affiliates and their respective Affiliates Associates under its control not to, directly or indirectly, alone in any manner: (i) engage in any solicitation of proxies or acting in concert or as a “group” (as defined in Section 13(d) of the Exchange Act) with consents to vote any holders of Common Stock, but subject, in each case, to the provisions of Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other voting securities of the Company or options, rights to acquire or other derivative instruments with respect thereto, or make become a participant in any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(a), the “Acquisition Restrictions”); (b) call or seek to call a meeting of the Company’s stockholders or initiate a stockholder proposal for action by the Company’s stockholders; (c) engage in, directly or indirectly, any “solicitation” (as such term is defined under the Exchange Act) of proxies or consents election contest with respect to the election or removal of directors or other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents; (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oral), or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuadeCompany, in each case, with respect to the Company’s 2008 Annual Meeting, and, in each case, except in accordance with Section 4(c) above; (ii) seek to influence any person with respect to the voting or disposition of any securities of the Company at the Company’s 2008 Annual Meeting of Stockholders, except in accordance with Section 4(c) above; provided, however, that any member of the Ramius Group and any Affiliate or Associate of any such member may disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor; (iii) otherwise act, alone or in concert with others, to seek to influence the management, the Board or policies of the Company or initiate or take any action to obtain representation on the Board, except as permitted expressly by this Agreement; or (iv) enter into any agreements with any third party to take or cause any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, to any of the foregoing, except in each case, as contemplated by this Agreement, it being understood and agreed that nothing contained herein shall be construed to limit the ability of any member of the Ramius Group and any Affiliate or Associate of any such member to form a “group” pursuant to Rule 13d-5 promulgated by the SEC under the Exchange Act with, or acquire additional shares of Common Stock from, any party. (b) Nothing contained in this Agreement shall limit any member of the Ramius Group or the Associates or Affiliates of such member from taking any of the actions otherwise prohibited in this Agreement in connection with the 2009 Annual Meeting of Stockholders, including without limitation, nominating directors or soliciting proxies for the election of directors or other purposes at the 2009 Annual Meeting. (c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.

Standstill Period. For so long as Sponsor Stockholder is entitled H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to designate an individual material non-public information concerning COMVERGE. You agree that, for election to a period of one year following the Board pursuant to Section 3.01 date of this agreement (the “Standstill Period”), Sponsor Stockholder shall you will not, and shall cause each Sponsor and their respective Affiliates not to, directly or indirectly, alone without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to acquire, propose, seek or acting offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other than with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in concert any way participate or as engage in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You further agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of COMVERGE, take any action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any other person or group (as defined in Section 13(d13(d)(3) of the Exchange Act) with any holders shall have acquired or entered into a definitive agreement (approved by the Board of Common Stock, but subject, in each case, to the provisions Directors of Section 5.02: (aCOMVERGE) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or its subsidiaries representing more than 50% of the Company or optionsconsolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing, rights to acquire or other derivative instruments with respect theretoand as described in Section 14, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified nothing in this Section 5.01(a)section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a public investor in COMVERGE, so long as such transactions do not violate the “Acquisition Restrictions”); (b) call or seek to call a meeting applicable United States securities laws. Furthermore, for avoidance of doubt, both Parties agree that the purpose of the Company’s stockholders or initiate Transaction is for H.I.G. to submit a stockholder proposal for action to COMVERGE regarding a possible transaction. Accordingly, until informed in writing by the Company’s stockholders; (c) engage inCOMVERGE otherwise, directly or indirectly, any “solicitation” (as such term is defined under the Exchange Act) of proxies or consents with respect H.I.G. may propose potential transactions to the election or removal of directors or other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents; (d) seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oral), or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuade, in each case, any third party to take or cause COMVERGE without violating any of the foregoing actions; or (f) make any public announcement with respect to, or make any public announcement inconsistent with, or contesting the validity of, any of the foregoingrestrictions set forth above in this section.

Standstill Period. For so long as Sponsor Stockholder is entitled to designate an individual (a) Company agrees that, for election to a period of one (1) year from the Board pursuant to Section 3.01 Effective Date (the “Standstill Period”), Sponsor Stockholder shall it and/or its controlled Affiliates will not, and shall cause each Sponsor and their respective it and/or its controlled Affiliates will not direct any other person to, or consent to any other person doing on its behalf, unless requested or consented to by TherapeuticsMD or the Board of Directors of TherapeuticsMD, directly or indirectlyindirectly (i) purchase or otherwise acquire or attempt to purchase or otherwise acquire (or enter into any agreement or make any proposal to purchase or otherwise acquire) all or substantially all assets of TherapeuticsMD or any of its Affiliates or any equity or debt securities of TherapeuticsMD or any of its Affiliates (including, alone without limitation, pursuant to any tender or acting exchange offer), any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, or form, join, or in concert or as any way participate in a “group” (as defined in Section 13(d) of such term is used under the Exchange Act) with respect thereto (it being understood that the acquisition of any holders securities includes the acquisition of Common Stock, but subject, in each case, to the provisions of Section 5.02: (a) acquire, offer or seek to acquire, or agree to acquire Common Stock, any other voting securities of the Company or options, rights to acquire or other derivative instruments with respect thereto, or make any tender or exchange offer or propose any merger, consolidation or any other business combination, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or Sponsor Stockholder (the restrictions specified in this Section 5.01(a), the “Acquisition Restrictions”); (b) call or seek to call a meeting of the Company’s stockholders or initiate a stockholder proposal for action by the Company’s stockholders; (c) engage in, directly or indirectly, any “solicitation” beneficial ownership (as such term is defined under the Exchange Act) thereof), (ii) propose or seek, or assist, advise, or encourage any other person or persons to propose or seek, directly or indirectly, (A) any merger, consolidation, recapitalization, restructuring, liquidation, or other extraordinary transaction with respect to TherapeuticsMD, or any of its Affiliates, or any of its or their respective assets or securities, or (B) any solicitation of proxies or consents with respect to the election or removal any securities of directors or other matter or proposal relating to the Company or become a “participant” TherapeuticsMD, (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Actiii) in any such solicitation of proxies or consents; (d) seek election or appointment to, or representation on, the Board, or nominate or publicly propose the nomination of, or recommend the nomination of, any candidate to the Board other than pursuant to Section 3.01; (e) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oral), or advise, finance, or solicit, or knowingly facilitate, assist, encourage or seek to persuadeinfluence or control the Board of Directors, in each casemanagement, or policies of TherapeuticsMD or any third party of its successors; (iv) make any public disclosure, or take any action that would require TherapeuticsMD or any of its successors to take or cause make any public disclosure, with regard to any of the foregoing actions; oror (v) knowingly enter into discussions or arrangements with any third party with respect to any of the foregoing actions. Company also agrees during such period not to take any action that it reasonably believes might require TherapeuticsMD to make a public announcement regarding the possibility of any of the matters set forth in clauses (i) through (iv) of the preceding sentence. For the avoidance of doubt, nothing contained in this Section 12(a) shall prohibit Company or its Affiliates from initiating private discussion with, and submitting confidential private proposals to, TherapeuticsMD or its Authorized Third Parties (including the Board of Directors and management of TherapeuticsMD) so long as such discussions or proposals would not reasonably be expected to require public disclosure. (fb) make any public announcement with respect toCompany represents to TherapeuticsMD that neither it nor, or make any public announcement inconsistent with, or contesting the validity ofto its knowledge, any of its Affiliates, has ownership, including, without limitation, “beneficial ownership” (within the foregoingmeaning of Rule 13d-3 under the Act) of any securities of TherapeuticsMD. (c) Nothing in this Section 12 shall limit each Party’s ability to discuss a transaction with its Authorized Third Parties as otherwise expressly permitted hereunder or to evaluate, discuss, negotiate, consummate and implement a transaction with the other Party as otherwise expressly permitted hereunder. The restrictions in this Section 12 shall be inoperative and of no force or effect if any other person or “group” (as defined above) shall acquire, or enter into a definitive written agreement to acquire, directly or indirectly, more than 50% of the outstanding voting securities of the Disclosing Party.