EXHIBIT 7
STANDSTILL AGREEMENT
This STANDSTILL AGREEMENT, dated as of June 5, 2001 and
effective as of the Effective Date (as defined below) (this "Agreement"), is
among ▇▇▇▇▇▇ Street Partners, LLC ("TSP") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and Pacholder
Associates, Inc. ("PAI") (each, a member of, and collectively, the "Pacholder
Group").
WHEREAS, it is contemplated by the parties that ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ may cease to be members of the Board of
Directors of ICO, Inc. (the "Company") and all committees thereof and the Boards
of Directors of all subsidiaries of the Company and all committees thereof; and
WHEREAS, it is contemplated by the parties that each member
of the Pacholder Group, other the PAI, may cease to be an employee of the
Company pursuant to the terms of those certain respective proposed draft
termination agreements;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Effectiveness. The terms and provisions of this
Agreement shall become effective upon each of ▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
ceasing to be an employee and a director of the Company, pursuant to the terms
of those certain termination agreements expected to be entered into between the
Company and such individuals (the "Termination Agreements"). (The time at which
all of the foregoing shall have occurred is hereinafter referred to as the
"Effective Time"). Notwithstanding anything herein to the contrary, no term or
provision of this Agreement shall be binding on any party hereto until such
time, if ever, as the Effective Time has occurred.
2. Term of this Agreement. The respective covenants and
agreements of the Pacholder Group contained in Sections 3 and 4(b) of this
Agreement (the "Standstill Agreements") shall remain in full force and effect
during the period from the Effective Date through and including the third
anniversary of the Effective Date (the "Standstill Period"). Except as otherwise
expressly provided herein, at the end of the Standstill Period, the Standstill
Agreements shall expire, but all other covenants and agreements of the parties
contained in this Agreement shall survive and remain in full force and effect.
3. Certain Agreements of the Pacholder Group. No member of
the Pacholder Group will, or will permit any entity under the control (including
but not limited to funds or trusts under investment management control) of such
member (whether alone or together with other Pacholder Group members) to,
directly or indirectly:
(a) solicit proxies with respect to any common stock or
any other securities of the Company entitled to vote generally for the
election of directors or any security convertible into or exchangeable
for or exercisable for the purchase of common stock or other
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securities of the Company entitled to vote generally for the election
of directors (collectively, "Voting Securities"), or become a
"participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act of 1934, as amended) in
opposition to the recommendation of the Board of Directors of the
Company; or
(b) deposit any Voting Securities in a voting trust or
subject them to a voting agreement or other arrangement of similar
effect; or
(c) acquire or offer to acquire or agree to acquire,
directly or indirectly, by purchase or otherwise any record or
beneficial ownership of (a) Voting Securities, except (i) through
stock splits, stock dividends or other pro rata distributions or
offerings made by the Company to holders of any class of Voting
Securities generally, (ii) if such acquisition is as a result of the
issuance by the Company of Voting Securities pursuant to the terms of
any merger or other means of acquisition in exchange for securities of
a corporation or other entity acquired in whole or in part by the
Company or any of its subsidiaries which securities were owned by any
member of the Pacholder Group prior to the time of the first public
announcement of the acquisition or, if sooner, the time any member of
the Pacholder Group learned of the acquisition or (iii) upon the
exercise of stock options to purchase shares of the Company's common
stock vested in and held by members of the Pacholder Group as of the
Effective Date or (b) the Company's 10-3/8% Senior Notes due 2007; or
(d) join a partnership, limited partnership, syndicate,
or other group or 13D Group (as hereinafter defined) (other than the
Pacholder Group) for the purpose of acquiring, holding or disposing of
Voting Securities within the meaning of Section 13(d) of the
Securities Exchange Act of 1934. As used herein, the term "13D Group"
shall mean any group of persons formed for the purpose of acquiring,
holding, voting or disposing of Voting Securities which would be
required under Section 13(d) of the Exchange Act and the rules and
regulations thereunder (as now in effect and based on present legal
interpretations thereof) to file a statement on Schedule 13D with the
Securities and Exchange Commission as a "person" within the meaning of
Section 13(d)(3) of the Exchange Act if such group beneficially owned
more than 5% of any class of equity securities of the Company then
outstanding; or
(e) initiate, induce or attempt to induce or give
encouragement to any other party or parties to initiate any proposal
or tender or exchange offer for Voting Securities or to otherwise
acquire any Voting Securities, or any change of control of the
Company; or
(f) make any proposal (or fail to withdraw on or
promptly after the Effective Date any existing proposal) regarding a
business combination or transaction involving the Company or solicit
or invite proposals from, or otherwise induce or give encouragement to
any other party or parties to make any proposal regarding a merger,
consolidation, business combination or similar transaction involving
the Company; or
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(g) acquire or permit any entity under his or her
control (including but not limited to subsidiaries and employee
pension, profit sharing or other trusts under investment management
control of any member of the Pacholder Group) to acquire, by purchase
or otherwise, more than 5% of any class of equity securities of any
entity which, prior to the time the Pacholder Group acquires more than
5% of such class, is publicly disclosed (by filing with the Securities
and Exchange Commission or otherwise) to be the beneficial owner of
more than 5% of any class of Voting Securities; or
(h) execute any written consent or demand in lieu of a
meeting with respect to Voting Securities (other than written consents
or demands in lieu of a meeting which are solicited by the Company) or
otherwise take any action in the nature of a vote with respect to
Voting Securities except at a meeting of the shareholders of the
Company; or
(i) call, or join with others in calling, any special
meeting of the Company's shareholders.
4. Covenants of the Pacholder Group. Each member of the
Pacholder Group hereby covenants and agrees that:
(a) no member of the Pacholder Group will, directly or
indirectly, bring or maintain or request or cause to be brought or
maintained, or encourage, solicit or assist any third party to bring
or maintain, or provide to or discuss with any third party any
information respecting any basis for, any claim, action, cause of
action, proceeding, or suit against any of the Released TSP Parties
(as defined below) arising out of or in connection with the actions of
TSP in its capacity as a shareholder of the Company or the actions or
omissions of any member of TSP as an officer, director, employee or
shareholder of the Company or its subsidiaries (the "TSP Actions")
(other than arising out of a breach of this Agreement or the
transactions contemplated herein) except as may be otherwise required
by applicable law; and
(b) each member of the Pacholder Group, on all matters
for which Voting Securities are entitled to vote, either will vote or
cause to be voted all of such member's respective Voting Securities as
recommended by the Board of Directors of the Company or will abstain
from voting, and cause not to be voted, such securities; provided,
however, that no provision of this Section 4(b) will apply to PAI.
5. Representation, Warranty and Covenant of TSP.
(a) TSP hereby represents and warrants that as of the
Effective Date no member of TSP, other than Global Undervalued
Securities Master Fund, L.P., beneficially owns shares of common stock
of the Company.
(b) TSP hereby covenants and agrees that it will not,
directly or indirectly, bring or maintain or request or cause to be
brought or maintained, or encourage, solicit or assist any third party
to bring or maintain, or provide to or discuss with any third party
any information respecting any basis for, any claim, action, cause of
action, proceeding, or suit against any of the Released Pacholder
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Parties (as defined below) arising out of or in connection with any
actions or omissions of any member of the Pacholder Group in its
capacity as an officer, director, employee or shareholder of the
Company or its subsidiaries (the "Pacholder Actions") (other than
arising out of a breach of this Agreement or the transactions
contemplated herein) except as may be otherwise required by applicable
law.
6. Release.
(a) In consideration of the covenants and agreements of
the members of the Pacholder Group herein, TSP, for itself, in its
capacity as a shareholder of the Company, and for its respective
members, officers, employees, affiliates, agents, legal
representatives, successors and assigns (with TSP, the "TSP Parties"),
hereby releases and forever discharges each member of the Pacholder
Group and each of his or her respective affiliates, heirs, agents,
legal representatives, successors and assigns (with each member of the
Pacholder Group, the "Released Pacholder Parties"), of and from any
and all debts, demands, actions, causes of action, suits, proceedings,
agreements, contracts, judgments, damages, accounts, reckonings,
executions, claims and liabilities whatsoever of every name and
nature, whether known or unknown, whether or not founded in fact or in
law, and whether in law or equity or otherwise, which any of the TSP
Parties ever had, now has, or can, shall or may have for or by reason
of any matter, cause or anything whatsoever related to any Pacholder
Actions on or prior to the Effective Date (other than arising out of a
breach of this Agreement or the transactions contemplated thereby).
(b) In consideration of the covenants and agreements of
TSP herein, each member of the Pacholder Group, for himself or herself
or itself and for his or her or its shareholders, officers, employees,
respective affiliates, heirs, agents, legal representatives,
successors and assigns (the "Pacholder Parties"), hereby releases and
forever discharges TSP and each of its respective affiliates, members,
managers, officers, employees, agents, legal representatives,
successors and assigns (with TSP, the "Released TSP Parties"), of and
from any and all debts, demands, actions, causes of action, suits,
proceedings, agreements, contracts, judgments, damages, accounts,
reckonings, executions, claims and liabilities whatsoever of every
name and nature, whether known or unknown, whether or not founded in
fact or in law, and whether in law or equity or otherwise, which any
of the Pacholder Parties ever had, now has or can, shall or may have
for or by reason of any matter, cause or anything whatsoever related
to any TSP Actions on or prior to the Effective Date (other than
arising out of a breach of this Agreement or the transactions
contemplated thereby).
7. Reservation of Rights. Notwithstanding the foregoing,
each of the parties hereto agrees that nothing in this Agreement shall in any
way release any party from its obligations and requirements, nor waive any
party's rights, pursuant to this Agreement.
8. Specific Enforcement; Other Remedies. Notwithstanding
the foregoing, each of the parties hereto acknowledges and agrees that the other
would be irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the non-breaching party shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
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provisions hereof in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which such non-breaching party
may be entitled at law or equity.
9. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given by
personal delivery, facsimile or by mail (registered or certified mail, postage
prepaid, return receipt requested) to the respective parties as follows:
If to any member of the Pacholder Group other
than to PAI, to such member as follows:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ O. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
in each case with a copy to:
Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
If to PAI:
Pacholder Associates, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
If to TSP:
▇▇▇▇▇▇ Street Partners, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
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with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or to such other address as any party to this Agreement shall specify by notice
to the other party, and shall be deemed to have been given when received.
10. Severability. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
11. Descriptive Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
12. Counterparts. For the convenience of the parties, any
number of counterparts of this Agreement may be executed by either party hereto
and each such executed counterpart shall be deemed to be, and shall be, an
original instrument.
13. Successors and Assigns. Except as provided herein, this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the heirs, personal representatives, successors and assigns of the parties
hereto.
14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Texas.
15. Amendment, Etc. This Agreement may not be amended,
modified or supplemented except upon the execution and delivery of a written
agreement executed by TSP and each member of the Pacholder Group.
16. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior or contemporaneous understandings, oral or written,
between the parties hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be duly executed on the day and year first above written.
▇▇▇▇▇▇ STREET PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
Title: Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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