Purchase Plan
Exhibit 99.1
This
purchase plan is dated as of February 19, 2010 (“Purchase Plan”) between Ramius
LLC (together with its controlled affiliates, “Purchaser”) and Xxxxx-Xxxxxx
Capital Group LLC (“Xxxxx-Xxxxxx”), as
agent.
A. Recitals
1. This
Purchase Plan is entered into between Purchaser and Xxxxx-Xxxxxx as the
Purchaser’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. Purchaser
is establishing this Purchase Plan in order to permit the orderly acquisition of
the common stock of Actel Corporation (the “Stock” and the “Issuer” as the case may
be).
B. Purchaser’s
Representations, Warranties and Covenants
1. As
of the date on which Purchaser executed this Purchase Plan, Purchaser was not
aware of any material nonpublic information concerning the Issuer or its
securities. Purchaser entered into this Purchase Plan in good faith
and not as part of a plan or scheme to evade compliance with the federal
securities laws.
2. The
execution and delivery of this Purchase Plan by Purchaser and the transactions
contemplated by this Purchase Plan will not contravene any provision of
applicable law or any agreement or other instrument binding on Purchaser or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over Purchaser.
3. Purchaser
agrees that it shall not, directly or indirectly, communicate any information
relating to the Stock or the Issuer to any employee of Xxxxx-Xxxxxx or its
affiliates who is involved, directly or indirectly, in executing this Purchase
Plan at any time while the Purchase Plan is in effect.
4. (a) Purchaser
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 Purchaser.
(b) Purchaser
agrees that it shall in connection with the performance of this Purchase Plan
comply with all applicable laws, including, without limitation, Section 16 of
the Exchange Act and the rules and regulations promulgated
thereunder.
X. Xxxxx-Xxxxxx’x
Representations, Warranties and Covenants
1. Xxxxx-Xxxxxx
has implemented reasonable policies and procedures, taking into consideration
the nature of Xxxxx-Xxxxxx’x 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 Xxxxx-Xxxxxx has material nonpublic
information.
2. In
connection with all purchases of Stock, Xxxxx-Xxxxxx shall deliver to the
Purchaser 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 Xxxxx-Xxxxxx possesses such information) for the Purchaser to make
all required Form 4 and 5 filings, as required by Section 16(a) of the Exchange
Act with regard to purchases made pursuant to this Purchase Plan.
3. Xxxxx-Xxxxxx
agrees to conduct all purchases pursuant to this Purchase Plan in accordance
with applicable laws including, but not limited to, Rule 10b-18 under the
Exchange Act.
D. Implementation
of the Plan
1. Purchaser
hereby appoints Xxxxx-Xxxxxx to purchase shares of Stock pursuant to the terms
and conditions set forth below. Subject to such terms and conditions,
Xxxxx-Xxxxxx hereby accepts such appointment.
2. Xxxxx-Xxxxxx
is authorized to begin purchasing Stock pursuant to this Purchase Plan
commencing on the date hereof and ending on the earlier of (i) the termination
of this Purchase 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 Purchaser's bankruptcy, liquidation or
insolvency.
3. (a) Xxxxx-Xxxxxx
is directed to purchase shares of Stock pursuant to this Purchase Plan in
accordance with trading requirements adopted by the Purchaser and to be
delivered in writing to Xxxxx-Xxxxxx by separate letter (the “Trading
Instructions”). The prices indicated in the Trading
Instructions are gross prices before 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 Purchase Plan, Xxxxx-Xxxxxx shall purchase 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 term of the Purchase
Plan.
(d) Purchaser
understands that Xxxxx-Xxxxxx may not be able to effect a purchase due to a
market disruption or a legal, regulatory or contractual restriction applicable
to Xxxxx-Xxxxxx or any other event or circumstance (a “Blackout”). Purchaser
also understands that even in the absence of a Blackout, Xxxxx-Xxxxxx may be
unable to effect purchases 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
purchase.
(e) Purchaser
and Xxxxx-Xxxxxx agree that if Issuer enters into a transaction that results, in
Issuer’s good faith determination, in the imposition of trading restrictions on
the Purchaser, such as a tender offer, material business combination or stock
offering requiring an affiliate lock-up (“Issuer Restriction”), and if
Issuer and Purchaser shall provide Xxxxx-Xxxxxx at least three (3) days’ prior
written notice signed by Issuer and Purchaser and confirmed by telephone of such
trading restrictions then Xxxxx-Xxxxxx will cease effecting purchases
under this Purchase Plan until notified in writing by both Issuer and Purchaser
that such restrictions have terminated. Xxxxx-Xxxxxx shall resume
effecting purchases in accordance with this Purchase 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 purchases 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 Purchase Plan.
4. To
the extent that any Stock remains in the Purchaser’s account after the end of,
or upon termination of, this Purchase Plan, Xxxxx-Xxxxxx agrees to transfer such
Stock promptly to Purchaser’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 Purchaser or otherwise to be put in such name
as directed by Purchaser.
5. Subject
to the parameters specified in Section D(3) above, purchases of the Stock may be
effected, in whole or in part, on an agency basis or, if Xxxxx-Xxxxxx is a
market maker in the Stock at the time that any purchase is to be made under this
Purchase Plan, Xxxxx-Xxxxxx may, in its sole discretion, effect one or more
purchases on a principal basis commensurate with all regulatory requirements
regarding best execution practices.
6. Purchaser
acknowledges and agrees that he does not have authority, influence or control
over any purchases of Stock effected by Xxxxx-Xxxxxx pursuant to this Purchase
Plan, and will not attempt to exercise any authority, influence or control over
such purchases.
E. Termination
1. This
Purchase Plan shall terminate upon the earlier to occur of the
following:
(a) Xxxxx-Xxxxxx
purchases the maximum number of shares of Stock allowable under this Purchase
Plan; and
(b) One
party hereto receives written notice of termination from the other
party.
2. Any
modification of this Purchase Plan by Purchaser will be made in good faith and
not as part of a scheme to evade the prohibitions of applicable
law. In particular, subject to the Purchaser's right to terminate
this Purchase Plan, Purchaser agrees not to alter or modify this Purchase Plan
at any time that Purchaser is aware of any material non-public information about
the Issuer or the Stock.
F. Limitation
of Liability
1. Notwithstanding
any other provision hereof, Xxxxx-Xxxxxx shall not be liable to Purchaser
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
(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. Purchaser
has consulted with his own advisors as to the legal, tax, business, financial
and related aspects of, and has not relied upon Xxxxx-Xxxxxx or any person
affiliated with Xxxxx-Xxxxxx in connection with, Purchaser’s adoption and
implementation of this Purchase Plan.
3. Purchaser
acknowledges and agrees that in performing its obligations hereunder neither
Xxxxx-Xxxxxx 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 Purchaser’s assets, or exercising
any authority or control respecting management or disposition of Purchaser’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 Purchaser or Purchaser’s assets. Without
limiting the foregoing, Purchaser further acknowledges and agrees that neither
Xxxxx-Xxxxxx 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
Purchaser’s assets.
4. Purchaser
jointly and severally agrees to indemnify and hold harmless Xxxxx-Xxxxxx 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
Purchase 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 Xxxxx-Xxxxxx.
G. General
1. Purchaser
and Xxxxx-Xxxxxx acknowledge and agree that Xxxxx-Xxxxxx is acting as agent and
custodian for Purchaser in connection with this Purchase Plan and that Purchaser
is a “customer” of Xxxxx-Xxxxxx within the meaning of Section 741(2) of Title 11
of the United States Code (the “Bankruptcy
Code”). Purchaser and Xxxxx-Xxxxxx further acknowledge and
agree that this Purchase 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.
2. This
Purchase Plan constitutes the entire agreement between the parties with respect
to this Purchase Plan and supersedes any prior agreements or understandings with
regard to the Purchase Plan.
3. All
notices to Xxxxx-Xxxxxx under this Purchase Plan shall be deemed notice when
received and shall be given to all of the following persons in the manner
specified by this Purchase Plan by telephone, by facsimile or by certified
mail:
Xxxxx-Xxxxxx
Capital Group LLC
000 Xxxxx
0xx
Xxxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxxxxx Xxxxxxxxxxx
4. Neither
party’s rights and obligations under this Purchase Plan may be assigned or
delegated without the written permission of the other party.
5. This
Purchase 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 Purchase 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 Purchase Plan
will continue and remain in full force and effect.
7. This
Purchase 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 Purchase 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 Purchase 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.
IN
WITNESS WHEREOF, the undersigned have signed this Purchase Plan as of the date
first written above.
By:________________________________
Name:
Title:
XXXXX-XXXXXX
CAPITAL GROUP LLC
By:________________________________
Name:
Title:
