Sales Plan
Exhibit
99.1
This plan
of sales is dated as of September 5, 2008 (“Sales Plan”) between Ramius LLC
(together with its controlled affiliates, “Seller”) and Cantor Xxxxxxxxxx &
Co. (“Cantor”), as agent.
A. Recitals
1. This
Sales Plan is entered into between Seller and Cantor as the Seller’s adoption of
a written plan for trading securities that complies with the requirements of
Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
2. Seller
is establishing this Sales Plan in order to permit the orderly disposition of a
portion of Seller’s holdings of the common stock of S1 Corporation (the “Stock”
and the “Issuer” as the case may be).
B. Seller’s
Representations, Warranties and Covenants
1. As
of the date on which Seller executed this Sales Plan, Seller was not aware of
any material nonpublic information concerning the Issuer or its
securities. Seller entered into this Sales Plan in good faith and not
as part of a plan or scheme to evade compliance with the federal securities
laws.
2. The
securities to be sold under this Sales Plan are owned free and clear by Seller
and are not subject to any liens, security interests or other encumbrances or
limitations on disposition other than those imposed by Rules 144 or 145 under
the Securities Act of 1933, as amended (the “Securities Act”).
3. Seller
agrees to complete, execute and deliver to Cantor a seller’s representation
letter dated as of the date hereof substantially in a form acceptable to Cantor
prior to or upon the commencement of sales of Stock pursuant to this Sales
Plan.
4. The
execution and delivery of this Sales Plan by Seller and the transactions
contemplated by this Sales Plan will not contravene any provision of applicable
law or any agreement or other instrument binding on Seller or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over Seller.
5. Seller
agrees that until this Sales Plan has been terminated it shall, upon written
request from Cantor delivered to Seller from time to time, provide such
information as is reasonably requested to confirm that sales under the Sales
Plan are in compliance with Rule 144 or Rule 145.
6. Seller
agrees that it shall not, directly or indirectly, communicate any information
relating to the Stock or the Issuer to any employee of Cantor or its affiliates
who is involved, directly or indirectly, in executing this Sales Plan at any
time while the Sales Plan is in effect.
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7. (a) Seller
agrees to make all filings, if any, required under Sections 13(d), 13(g) and 16
of the Exchange Act in a timely manner, to the extent any such filings are
applicable to Seller.
(b) Seller
agrees that it shall in connection with the performance of this Sales Plan
comply with all applicable laws, including, without limitation, Section 16 of
the Exchange Act and the rules and regulations promulgated
thereunder.
8. (a) Seller
agrees not to take, and agrees not to cause any person or entity with which
Seller would be required to aggregate sales of Stock pursuant to paragraph
(a)(2) or (e) of Rule 144 to take, any action that would cause the sales
hereunder not to meet all applicable requirements of Rule 144.
(b) Seller
agrees to file Forms 144 for the sales to be effected under this Sales Plan at
such times as Seller may be required or permitted by applicable law.1
9. Seller
shall maintain in its account at Cantor or timely cause the delivery of a
sufficient number of shares to cover all sales contemplated by this Sales Plan
together with stock powers and other necessary transfer
documentation.
X. Xxxxxx’x
Representations, Warranties and Covenants
1. Cantor
has implemented reasonable policies and procedures, taking into consideration
the nature of Cantor’s business, to ensure that its employees making investment
decisions will not violate the laws prohibiting trading on the basis of material
nonpublic information. These policies and procedures include those
that restrict any purchase or sale, or causing any purchase or sale, of any
security as to which Cantor has material nonpublic information.
2. In
connection with all sales of Stock, Cantor shall deliver to the Seller by
facsimile or electronic mail, no later than the close of business on the date
such transaction is effected, all information necessary (to the extent that
Cantor possesses such information) for the Seller to make all required Form 4
and 5 filings, as required by Section 16(a) of the Exchange Act with regard to
sales made pursuant to this Sales Plan.
3. Cantor
agrees to conduct all sales pursuant to this Sales Plan in accordance with
whatever provisions of Rule 144 or Rule 145 are applicable, including, but not
limited to, the manner of sale requirement of Rule 144 of the Securities Act,
and in no event shall Cantor effect any sale if such sale would exceed the
then-applicable volume limitation under Rule 144, assuming that the sales to be
made by Cantor under this Sales Plan are the only sales subject to such
limitation.
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Seller’s representation on the Forms 144 regarding Seller’s knowledge of
material information regarding the Issuer may be made as of the date the Sales
Plan is adopted. The “Remarks” section of each Form 144 should state
that the sale is being made pursuant to a previously adopted plan intended to
comply with Rule 10b5-1(c) and indicate the later of the date the Sales Plan was
adopted or was most recently amended and that the representation is made as of
such date.
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D. Implementation
of the Plan
1. Seller
hereby appoints Cantor to sell shares of Stock pursuant to the terms and
conditions set forth below. Subject to such terms and conditions,
Cantor hereby accepts such appointment.
2. Cantor
is authorized to begin selling Stock pursuant to this Sales Plan commencing on
the date hereof and ending on the earlier of (i) the termination of this Sales
Plan in accordance with Section E below or (ii) two business days after receipt
of notice of the commencement of any proceedings in respect of or triggered by
the Seller's bankruptcy, liquidation or insolvency.
3. (a) Cantor
is directed to sell shares of Stock pursuant to this Sales Plan in accordance
with trading requirements adopted by the Seller and to be delivered in writing
to Cantor by separate letter (the “Trading Instructions”). The prices
indicated in the Trading Instructions are gross prices before deduction of
commissions (which shall be $0.015 per share) or xxxx-down.
(b) Subject
to the parameters set forth in the Trading Instructions hereto and the other
applicable provisions of this Sales Plan, Cantor shall sell the Stock under
ordinary principles of best execution.
(c) The
amounts set forth in the Trading Instructions shall be adjusted automatically on
a proportionate basis to take into account any stock split, reverse stock split
or stock dividend with respect to the Stock or any similar transaction with
respect to the Issuer’s stock that occurs during the Sales Plan.
(d) Seller
understands that Cantor may not be able to effect a sale due to a market
disruption or a legal, regulatory or contractual restriction applicable to
Cantor or any other event or circumstance (a “Blackout”). Seller also
understands that even in the absence of a Blackout, Cantor may be unable to
effect sales consistent with ordinary principles of best execution due to
insufficient volume of trading, failure of the Stock to reach and sustain a
limit order price, or other market factors in effect on the date of a
sale.
(e) Seller
and Cantor agree that if Issuer enters into a transaction that results, in
Issuer’s good faith determination, in the imposition of trading restrictions on
the Seller, such as a tender offer, material business combination or stock
offering requiring an affiliate lock-up (“Issuer Restriction”), and if Issuer
and Seller shall provide Cantor at least three (3) days’ prior written notice
signed by Issuer and Seller and confirmed by telephone of such trading
restrictions then Cantor will cease effecting sales under this Sales
Plan until notified in writing by both Issuer and Seller that such restrictions
have terminated. Cantor shall resume effecting Sales in accordance
with this Sales Plan as soon as practicable after the cessation or termination
of a Blackout or receipt of the notice as set forth in the preceding sentence
that the Issuer Restriction has ended. Any unfilled sales that are
not executed due to the existence of a Blackout or Issuer Restriction shall be
deemed to be cancelled and shall not be effected pursuant to this Sales
Plan.
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4. To
the extent that any Stock remains in the Seller’s account after the end of, or
upon termination of, this Sales Plan, Cantor agrees to return such Stock
promptly to Seller’s custodian or to the Issuer’s transfer agent for relegending
to the extent that such Stock would then be subject to transfer restrictions in
the hands of the Seller or otherwise to be put in such name as directed by
Seller.
5. Subject
to the parameters specified in Section D(3) above, and in each such case,
subject to the manner of sale requirement of Rule 144 being satisfied as
provided in Section C(4), sales of the Stock may be effected, in whole or in
part, on an agency basis or, if Cantor is a market maker in the Stock at the
time that any sale is to be made under this Sales Plan, Cantor may, in its sole
discretion, effect one or more sales on a principal basis commensurate with all
regulatory requirements regarding best execution practices.
6. Seller
acknowledges and agrees that he does not have authority, influence or control
over any sales of Stock effected by Cantor pursuant to this Sales Plan, and will
not attempt to exercise any authority, influence or control over such
sales.
E. Termination
1. This
Sales Plan shall terminate upon the earlier to occur of the
following:
(a) Cantor
sells the maximum number of shares of Stock allowable under this Sales Plan;
and
(b) One
party hereto receives written notice of termination from the other
party.
2. Any
modification of this Sales Plan by Seller will be made in good faith and not as
part of a scheme to evade the prohibitions of the Rule. In
particular, subject to the Seller's right to terminate this Sales Plan, Seller
agrees not to alter or modify this Sales Plan at any time that Seller is aware
of any material non-public information about the Issuer or the
Stock.
F. Limitation
of Liability
1. Notwithstanding
any other provision hereof, Cantor shall not be liable to Seller
for:
(a) special,
indirect, punitive, exemplary or consequential damages, or incidental losses or
incidental damages of any kind, even if advised of the possibility of such
losses or damages or if such losses or damages could have been reasonably
foreseen, or
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(b) any
failure to perform or to cease performance or any delay in performance that
results from a cause or circumstance that is beyond its reasonable control,
including but not limited to failure of electronic or mechanical equipment,
strikes, failure of common carrier or utility systems, severe weather, market
disruptions or other causes commonly known as “acts of God”.
2. Seller
has consulted with his own advisors as to the legal, tax, business, financial
and related aspects of, and has not relied upon Cantor or any person affiliated
with Cantor in connection with, Seller’s adoption and implementation of this
Sales Plan.
3. Seller
acknowledges and agrees that in performing its obligations hereunder neither
Cantor nor any of its affiliates nor any of their respective officers, employees
or other representatives is exercising any discretionary authority or
discretionary control respecting management of Seller's assets, or exercising
any authority or control respecting management or disposition of Seller's
assets, or otherwise acting as a fiduciary (within the meaning of Section 3(21)
of the Employee Retirement Income Security Act of 1974, as amended, or Section
2510.3-21 of the Regulations promulgated by the United States Department of
Labor) with respect to Seller or Seller’s assets. Without limiting
the foregoing, Seller further acknowledges and agrees that neither Cantor nor
any of its affiliates nor any of their respective officers, employees or other
representatives has provided any “investment advice” within the meaning of such
provisions, and that no views expressed by any such person will serve as a
primary basis for investment decisions with respect to Seller’s
assets.
4. Seller
jointly and severally agrees to indemnify and hold harmless Cantor and its
officers, directors, employees, agents and affiliates from and against any
losses, liabilities, claims, damages and expenses including but not limited to
reasonable and documented attorneys’ fees and the costs of investigating or
defending any matter, arising out of or incurred in connection with this Sales
Plan (“Losses”), except to the extent Losses are found in a final award or
judgment by an arbitrator or court of competent jurisdiction (not subject to
further appeal) to have resulted primarily and directly from gross negligence or
willful misconduct on the part of Cantor.
G. General
1. Seller
and Cantor acknowledge and agree that Cantor is acting as agent and custodian
for Seller in connection with this Sales Plan and that Seller is a “customer” of
Cantor within the meaning of Section 741(2) of Title 11 of the United States
Code (the “Bankruptcy Code”). Seller and Cantor further acknowledge
and agree that this Sales Plan is a “securities contract,” as such term is
defined in Section 741(7) of the Bankruptcy Code, entitled to the protections
of, among other sections, Sections 362(b)(6), 546(e) and 555 of the Bankruptcy
Code.
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2. This
Sales Plan constitutes the entire agreement between the parties with respect to
this Sales Plan and supersedes any prior agreements or understandings with
regard to the Sales Plan.
3. All
notices to Cantor under this Sales Plan shall be deemed notice when received and
shall be given to all of the following persons in the manner specified by this
Sales Plan by telephone, by facsimile or by certified mail:
Cantor
Xxxxxxxxxx & Co.
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxxx Xxxxxxxx
4. Neither
party’s rights and obligations under this Sales Plan may be assigned or
delegated without the written permission of the other party.
5. This
Sales Plan may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
6. If
any provision of this Sales Plan is or becomes inconsistent with any applicable
present or future law, rule or regulation, that provision will be deemed
modified or, if necessary, rescinded in order to comply with the relevant law,
rule or regulation. All other provisions of this Sales Plan will
continue and remain in full force and effect.
7. This
Sales Plan, and all transactions contemplated hereunder, shall be governed by
and construed in accordance with the internal laws of the State of New
York. Any action brought in connection with this Sales Plan shall be
brought in the federal or state courts located in the County of New York, State
of New York, and the parties hereto irrevocably consent to the jurisdiction of
such courts. This Sales Plan may be modified or amended only by a
writing signed by the parties hereto. IN THE EVENT OF A DISPUTE
BETWEEN THE PARTIES, THE PARTIES HEREBY AGREE TO WAIVE TRIAL BY
JURY.
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IN
WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the date
first written above.
