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Exhibit 10.1
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (the " Agreement ") is made and
entered into as of February 23, 2007, by and between InFocus
Corporation, an Oregon corporation (" InFocus " or the "
Company "), and Caxton Associates, L.L.C., a Delaware
limited liability company (" Caxton "), Caxton International
Limited, a British Virgin Islands corporation (" Caxton
International "), and GDK Inc., a British Virgin Islands
corporation (together with Caxton and Caxton International, the "
Caxton Entities ").
RECITALS
WHEREAS, InFocus has announced that its board of directors (the
" Board ") and the Company’s financial advisor are
conducting an evaluation of strategic alternatives for the Company;
and
WHEREAS, one of those strategic alternatives may involve a sale
of the Company or a merger or other business combination involving
the Company (a " Transaction "); and
WHEREAS, Caxton International intends to demand a special
meeting of the shareholders of InFocus (the " Special
Meeting ") and to solicit proxies from InFocus’
shareholders (the " Special Meeting Solicitation ") to (i)
remove a majority of the members of the Board at the Special
Meeting and (ii) nominate certain individuals to be elected at the
Special Meeting to fill the resulting vacancies on the Board;
and
WHEREAS, among other things, InFocus is willing under certain
circumstances to add to the Board two individuals selected by
Caxton (whom Caxton believes in good faith to be qualified to serve
on the Board), and Caxton is willing to terminate the Special
Meeting Solicitation;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
AGREEMENTS
Section 1.1. Abandonment of Special Meeting Solicitation
. Neither the Caxton Entities nor any of their Affiliates
will, directly or indirectly, (a) demand, or encourage any other
shareholder of the Company to demand, pursuant to the
Company’s Bylaws or the Oregon Business Corporation Act, at
any time prior to the Company’s 2007 Annual Meeting of
shareholders (the " 2007 Annual Meeting "), that the Company
call a special meeting of its shareholders or (b) with respect to
any special meeting of shareholders held prior to the 2007 Annual
Meeting (an " Interim Special Meeting "), solicit proxies or
consents for the purpose of removing directors or increasing the
authorized number of directors of the Company or otherwise become a
"participant," directly or indirectly, in any "solicitation" of
"proxies" or consents for such purpose (such quoted terms being
defined in Regulation 14A under the
Securities Exchange Act of 1934, as amended (the " Exchange
Act ")); provided that, with the exception of the foregoing
prohibitions with respect to calling an Interim Special Meeting and
the removal of directors or increasing the authorized number of
directors at an Interim Special Meeting, nothing herein contained
shall affect or limit Caxton’s ability to act with respect to
any annual or special meeting of the Company’s
shareholders. For purposes of this Agreement, "
Affiliate " means any person that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or
is under common control with, the Caxton Entities.
Section 1.2. Option for Board Representation.
(a)
At any time on or after April 13, 2007, Caxton may deliver to the
Company written notice (the " Notice ") demanding that the
Company add to its Board up to two (2) designees named by Caxton in
the Notice (the " Caxton Designees ") whom Caxton believes
in good faith to be qualified to serve on the Board. As
promptly as practicable, and in any event within five (5) business
days after the date of receipt of the Notice by the Company, the
Company shall take all action necessary (including the calling of a
special meeting of the Board to approve such actions) to increase
the authorized number of directors of the Company from five (5) to
seven (7) members and to cause the directors then on the Board (the
"Incumbent Directors") to nominate and elect the Caxton Designees
to fill such newly created directorships to serve until the next
election of directors of the Company or until the earlier
resignation or removal of such directors. Notwithstanding the
foregoing, Caxton shall not be entitled to deliver the Notice and
the Company shall not be required to add any Caxton Designees to
the Board if prior to the time the Notice is given, or prior to the
time the Company otherwise would be required to add Caxton
Designees to the Board, as the case may be, InFocus shall have
publicly announced that it has entered into a definitive agreement
for a Transaction.
(b)
Should any Caxton Designee resign from the Board or decide not to
seek appointment or election to the Board, pursuant to Section
1.2(c), Caxton shall be entitled to designate a replacement for
such Caxton Designee as a member of the Board (such replacement
being a person whom Caxton believes in good faith to be qualified
to serve on the Board), and InFocus shall take all necessary action
to replace the resigning Caxton Designee with such designated
replacement as promptly as practicable. Any such designated
replacement who becomes a Board member shall be deemed to be a
Caxton Designee for all purposes under this Agreement.
(c)
The Board or a nominating committee of the Board shall nominate for
election to the Board at the 2007 Annual Meeting a slate of
individuals selected by it in its sole discretion. For the
avoidance of doubt, Incumbent Directors shall have no obligation to
nominate and recommend Caxton Designees to shareholders for
election at any subsequent annual or special meeting of
shareholders.
(d)
Notwithstanding any provision to the contrary contained i
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