OMB APPR
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OMB Number: 3235-0145
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Expires: January 31, 2014
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Estimated average burden
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hours per response: 14.5
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CUSIP No. 461148108
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1
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NAME OF REPORTING PERSON / I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Becker Drapkin Management, L.P.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
þ
(b)
¨
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
OO
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
152,640
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8
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SHARED VOTING POWER
1,048,980
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9
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SOLE DISPOSITIVE POWER
152,640
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10
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SHARED DISPOSITIVE POWER
1,048,980
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,201,620
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.0%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IA, PN
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CUSIP No. 461148108
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1
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NAME OF REPORTING PERSON / I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Becker Drapkin Partners (QP), L.P.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
þ
(b)
¨
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
WC
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
880,212
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
880,212
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
880,212
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.7%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
PN
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CUSIP No. 461148108
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1
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NAME OF REPORTING PERSON / I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.
Becker Drapkin Partners, L.P.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
þ
(b)
¨
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
WC
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
168,768
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8
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SHARED VOTING POWER
0
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9
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SOLE DISPOSITIVE POWER
168,768
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10
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SHARED DISPOSITIVE POWER
0
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
168,768
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
PN
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CUSIP No. 461148108
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1
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NAME OF REPORTING PERSON / I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BC Advisors, LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
þ
(b)
¨
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||
3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
OO
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
|
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8
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SHARED VOTING POWER
1,201,620
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9
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SOLE DISPOSITIVE POWER
0
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||
10
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SHARED DISPOSITIVE POWER
1,201,620
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,201,620
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.0%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IA, OO
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CUSIP No. 461148108
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1
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NAME OF REPORTING PERSON / I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Steven R. Becker
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
þ
(b)
¨
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
OO
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
1,201,620
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9
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SOLE DISPOSITIVE POWER
0
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||
10
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SHARED DISPOSITIVE POWER
1,201,620
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,201,620
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||
12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.0%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
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CUSIP No. 461148108
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1
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NAME OF REPORTING PERSON / I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Matthew A. Drapkin
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
þ
(b)
¨
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||
3
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SEC USE ONLY
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||
4
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SOURCE OF FUNDS (See Instructions)
OO
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
1,201,620
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9
|
SOLE DISPOSITIVE POWER
0
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||
10
|
SHARED DISPOSITIVE POWER
1,201,620
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||
11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,201,620
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
o
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||
13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.0%
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||
14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
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Name of Reporting Person
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Trade Date
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Purchased (Sold)
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Price / Share
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Becker Drapkin, L.P.
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5/9/2014
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1,837
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$6.7617
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Becker Drapkin, L.P.
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5/12/2014
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5,014
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$6.8147
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Becker Drapkin, L.P.
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5/13/2014
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2,278
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$6.8570
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Becker Drapkin, L.P.
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5/14/2014
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118
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$6.9814
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Becker Drapkin, L.P.
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5/16/2014
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851
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$7.0279
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Becker Drapkin QP
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5/9/2014
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15,734
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$6.7617
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Becker Drapkin QP
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5/12/2014
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42,923
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$6.8147
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Becker Drapkin QP
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5/13/2014
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19,505
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$6.8570
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Becker Drapkin QP
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5/14/2014
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1,016
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$6.9814
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Becker Drapkin QP
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5/16/2014
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7,290
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$7.0279
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Managed Account
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5/9/2014
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4,129
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$6.7617
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Managed Account
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5/12/2014
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11,263
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$6.8147
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Managed Account
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5/13/2014
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5,118
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$6.8570
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Managed Account
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5/14/2014
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266
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$6.9814
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Managed Account
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5/16/2014
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1,913
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$7.0279
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(d) No person other than the Reporting Persons, and the Managed Account with respect to the Managed Account Shares, has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock set forth above.
(e) Not applicable.
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Item 6.
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Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
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On May 23, 2014, the Reporting Persons entered into the Joint Filing Agreement pursuant to which they agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer. Such Joint Filing Agreement is attached hereto as Exhibit 1.
The Reporting Persons may, from time to time, enter into and dispose of option contracts with one or more counterparties that are based upon the value of shares of Common Stock, which transactions may be significant in amount. The profit, loss and/or return on such contracts may be wholly or partially dependent on the market value of the shares of Common Stock.
On December 9, 2013, the Issuer and the Reporting Persons entered into the Standstill Agreement, the terms of which are described in Item 4 of this Schedule 13D.
On May 6, 2014, each of (i) Becker Drapkin QP, (ii) Becker Drapkin, L.P., and (iii) BD Management entered into a Stock Purchase Plan (the “10b5-1 Plans”) with Tourmaline Partners, LLC (“Tourmaline”), pursuant to which Tourmaline may purchase shares of Common Stock on behalf of the applicable Reporting Person for the period beginning June 9, 2014 and ending July 31, 2014. Transactions under the 10b5-1 Plans will be subject to certain price restrictions and termination in accordance with its terms and subject to applicable law and regulation. The 10b5-1 Plans are intended to comply with the requirements of Rule 10b5-1(c) promulgated under the Securities Exchange Act of 1934.
The foregoing description of the 10b5-1 Plans is qualified in its entirety by reference to the text of the 10b5-1 Plans, which are attached as Exhibit 3 hereto and incorporated by reference herein.
On December 20, 2013, Mr. Drapkin, in connection with his service on the Board, was awarded a non-qualified stock option (the “Option”). The Option represents the right to buy 18,000 shares of Common Stock of the Issuer at an exercise price of $7.89 per share. The Option vests in two equal installments on December 20, 2014 and December 20, 2015.
Except for the matters described herein, no Reporting Person has any contract, arrangement, understanding or relationship with any person with respect to any securities of the Issuer.
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Item 7.
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Material to Be Filed as Exhibits
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Exhibit 1
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Joint Filing Agreement, dated May 23, 2014, by and among Becker Drapkin Management, L.P.; Becker Drapkin Partners (QP), L.P., Becker Drapkin Partners, L.P.; BC Advisors, LLC; Steven R. Becker; and Matthew A. Drapkin
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Exhibit 2
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Agreement, dated December 9, 2013, by and among Intevac, Inc., Steven R. Becker, Matthew A. Drapkin, BC Advisors, LLC, Becker Drapkin Management, L.P., Becker Drapkin Partners (QP), L.P., and Becker Drapkin Partners, L.P.
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Exhibit 3
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(1) Stock Purchase Plan, dated May 6, 2014, by and between Becker Drapkin Partners (QP), L.P. and Tourmaline Partners, LLC
(2) Stock Purchase Plan, dated May 6, 2014, by and between Becker Drapkin Partners, L.P. and Tourmaline Partners, LLC
(3) Stock Purchase Plan, dated May 6, 2014, by and between Becker Drapkin Management, L.P. on behalf of the Managed Account, and Tourmaline Partners, LLC
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Exhibit 4
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Power of Attorney, dated March 16, 2013, signed by Steven R. Becker
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Exhibit 5
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Power of Attorney, dated March 16, 2013, signed by Matthew A. Drapkin
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BECKER DRAPKIN MANAGEMENT, L.P.
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By:
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BC Advisors, LLC, its general partner
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By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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Title: Attorney-in-Fact
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BECKER DRAPKIN PARTNERS (QP), L.P.
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By:
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Becker Drapkin Management, L.P., its general partner
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By:
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BC Advisors, LLC, its general partner
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By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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BECKER DRAPKIN PARTNERS, L.P.
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By:
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Becker Drapkin Management, L.P., its general partner
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By:
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BC Advisors, LLC, its general partner
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By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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Title: Attorney-in-Fact
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BC ADVISORS, LLC
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By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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Title: Attorney-in-Fact
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STEVEN R. BECKER
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By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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Title: Attorney-in-Fact
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|||||
MATTHEW A. DRAPKIN
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|||||
By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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Title: Attorney-in-Fact
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BECKER DRAPKIN MANAGEMENT, L.P.
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|||||
By:
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BC Advisors, LLC, its general partner
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By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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BECKER DRAPKIN PARTNERS (QP), L.P.
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By:
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Becker Drapkin Management, L.P., its general partner
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By:
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BC Advisors, LLC, its general partner
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||||
By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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|||||
BECKER DRAPKIN PARTNERS, L.P.
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|||||
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|||||
By:
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Becker Drapkin Management, L.P., its general partner
|
||||
By:
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BC Advisors, LLC, its general partner
|
||||
By:
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/s/ Andrew S. McLelland
|
||||
Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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BC ADVISORS, LLC
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|||||
By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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|||||
STEVEN R. BECKER
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|||||
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|||||
By:
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/s/ Andrew S. McLelland
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||||
Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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|||||
MATTHEW A. DRAPKIN
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|||||
By:
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/s/ Andrew S. McLelland
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Name: Andrew S. McLelland
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|||||
Title: Attorney-in-Fact
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|||||
/s/ Steven R. Becker
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/s/ Matthew A. Drapkin
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|||||||
STEVEN R. BECKER
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MATTHEW A. DRAPKIN
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|||||||
BC ADVISORS, LLC
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BECKER DRAPKIN MANAGEMENT, L.P.
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|||||||
By:
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BC Advisors, LLC, its general partner
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|||||||
By:
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/s/ Matthew A. Drapkin
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|||||||
Name: Matthew A. Drapkin
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||||||||
Title: Partner
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||||||||
By:
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/s/ Matthew A. Drapkin
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|||||||
Name: Matthew A. Drapkin
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||||||||
Title: Partner
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||||||||
BECKER DRAPKIN PARTNERS (QP), L.P.
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BECKER DRAPKIN PARTNERS, L.P . | |||||||
By:
|
Becker Drapkin Management, L.P., its general partner
|
By:
|
Becker Drapkin Management, L.P., its general partner
|
|||||
By:
|
BC Advisors, LLC, its general partner
|
By:
|
BC Advisors, LLC, its general partner
|
|||||
By:
|
/s/ Matthew A. Drapkin
|
By:
|
/s/ Matthew A. Drapkin
|
|||||
Name: Matthew A. Drapkin
|
Name: Matthew A. Drapkin
|
|||||||
Title: Partner
|
Title: Partner
|
1.
|
Starting on June 9, 2014 purchase shares of Stock pursuant to the written instructions on
Appendix A
on a “not held” basis.
|
2.
|
TOUR will use its reasonable efforts to effect all open-market purchases pursuant to this Purchase Plan in accordance with the provisions of Rule 10b-18. TOUR will advise the Purchaser of all purchases executed under this Purchase Plan pursuant to the customary trade confirmation.
|
3.
|
This Purchase Plan will terminate upon the earliest of:
|
i.
|
the opening of the trading day immediately following the receipt by TOUR of written notice by the Purchaser of termination of the Purchase Plan;
|
ii.
|
July 31, 2014;
|
iii.
|
the completion of the purchases contemplated by the Purchase Plan;
|
iv.
|
the date TOUR becomes aware of the commencement of any voluntary or involuntary case or other proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, receiver or other similar official, in each case with respect to the Issuer or the taking of any corporate action by the Issuer to authorize or commence any of the foregoing;
|
v.
|
the date the Issuer or any other person publicly announces a tender or exchange offer with respect to the Stock or a merger, acquisition, reorganization, recapitalization or other similar business combination or transaction as a result of the consummation of which the Stock would be exchanged or converted into cash, securities or other property.
|
vi.
|
the Purchaser’s or TOUR’s reasonable determination that: (a) the Purchase Plan does not comply with Rule 10b5-1 or other applicable securities laws; or (b) the Purchaser has not, or TOUR has not, complied with the Purchase Plan, Rule 10b5-1 or other applicable securities laws.
|
4.
|
Any transaction pending at the time that this Purchase Plan is terminated shall be completed and TOUR shall receive the commission set forth in paragraph 5 below.
|
5.
|
The Purchaser will pay TOUR commission not to exceed $.04 per share.
|
6.
|
TOUR will provide Purchaser and Issuer with written trade confirmations of the purchases made pursuant to this Purchase Plan promptly after the execution of such transactions and in any event no later than the close of business on the day following any such sales, including sufficient information to permit the client to timely prepare and make all filings required under section 13(d), 13(g) and 16 of the Exchange Act.
|
7.
|
TOUR must suspend purchase of shares of Stock under this Purchase Plan on a particular day for any of the following reasons:
|
i.
|
A day specified by the Purchase Plan is not a day on which the shares of Stock trade regular way on the listing exchange or primary market center;
|
ii.
|
Trading of the shares of Stock on the listing exchange or the primary market center is suspended for any reason; or
|
iii.
|
TOUR cannot effect a purchase of shares of Stock due to legal, regulatory or contractual restrictions applicable to it, the Issuer or the Purchaser (including without limitation, Regulation M, Rule 10b-5 or Rule 10b-18).
|
8.
|
This Purchase Plan may be modified or amended by the Purchaser provided that such modification is made in good faith and not as part of a scheme to evade the prohibitions of Rule 10b-5 or Rule 10b-18. The Plan may be modified or amended only in accordance with the following:
|
9.
|
TOUR will from time to time trade on a proprietary basis in shares of Stock while in possession of this Purchase Plan and orders contemplated hereby, in accordance with industry rules, including New York Stock Exchange Rule 92. By signing this agreement, you acknowledge the foregoing disclosures, and consent to TOUR trading while it is in possession of this Plan or Purchaser’s order.
|
i.
|
At the time of the Purchaser’s execution of this Purchase Plan, the Purchaser is not aware of any material, non-public information with respect to the Issuer or the Stock. The Purchaser is entering into this Purchase Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1, Rule 10b-18 or other applicable securities laws.
|
ii.
|
The Issuer has approved this Purchase Plan, and agreed that the purchases to be made by TOUR pursuant to this Plan will not violate the Issuer’s insider trading policies.
|
iii.
|
Purchases of Stock under this Purchase Plan have been duly authorized by the Purchaser and are not prohibited by any legal, regulatory or contractual restriction or undertaking binding on the Purchaser. The Purchaser will inform TOUR as soon as possible of any subsequent legal or contractual restrictions affecting the execution of the Purchase Plan by TOUR or the Purchaser and of the occurrence of any event that would cause the Purchase Plan to be suspended or to end as contemplated in paragraphs 3 and 6.
|
iv.
|
The Purchaser agrees not to enter into or alter any corresponding or hedging transaction with respect to the Stock while this Purchase Plan remains in effect.
|
v.
|
If applicable, the Purchaser agrees to provide TOUR with all necessary information regarding the Purchaser’s previous purchases, as may be required for TOUR to calculate the Purchaser’s volume limitations under Rule 10b-18.
|
vi.
|
The Purchaser agrees to provide TOUR any documents that it reasonably requests to effect this Purchase Plan, including but not limited to: (i) a W-8 for the Purchaser; (ii) a copy of resolutions duly adopted by the Purchaser’s Board of Directors authorizing the Repurchase Program and/or this Purchase Plan; and (iii) a corporate resolution or secretary’s certificate identifying the undersigned and other specified individuals the authority to implement the Purchase Plan by, among other things, engaging a broker-dealer to act as the Purchaser’s agent for such purposes, establishing and maintaining an account on behalf of the Purchaser for the Purchase Program and to transact in and instruct such broker or dealer on the account to effect the Purchase Plan (“Authorized Persons”).
|
vii.
|
The Purchaser agrees that it will not take any action that would cause any purchase of Stock under this Purchase Plan not to comply with Rule 10b-18 or any other applicable law.
|
viii.
|
The Purchaser agrees that it does not have authority, influence or control over any purchase of Stock effected by TOUR pursuant to this Purchase Plan and will not attempt to exercise any such authority, influence or control. The Purchaser agrees that it will not, communicate any information relating to the Stock, the Issuer or the Purchaser to any employee of TOUR or its affiliates who are responsible for purchasing Stock in accordance with this Purchase Plan and during the time this Purchase Plan is in effect.
|
ix.
|
The Purchaser acknowledges and agrees that the Purchase Plan is a “securities contract,” as such term is defined in Section 741(7) of Title 11 of the United States Code, as it may be amended (the “Bankruptcy Code”), entitled to all of the protections given such contracts under the Bankruptcy Code.
|
x.
|
This Purchase Plan constitutes the Purchaser’s legal, valid and binding obligation enforceable against the Purchaser in accordance with its terms. There is no litigation, arbitration or other proceeding pending, or to the Purchaser’s knowledge threatened, that would prevent or interfere with the Purchaser’s purchase of Stock under this Purchase Plan.
|
xi.
|
That TOUR will be the Purchaser’s exclusive agent for the repurchase of shares of Stock pursuant to this Purchase Plan and any other repurchase program during the duration of this Purchase Plan.
|
xii.
|
The Purchaser agrees to transfer funds for purchases of Stock that TOUR makes on behalf of the Purchaser, but in no case later than the settlement date stipulated on the applicable trade confirmation.
|
xiii.
|
The Purchaser agrees to provide TOUR with trade reporting and security delivery instructions for the daily trade reporting and account statements as well as the delivery of the Stock purchased by TOUR on the Purchaser’s behalf.
|
xiv.
|
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)
|
Indemnification and Limitation on Liability
|
1.
|
The Purchaser agrees to indemnify and hold harmless TOUR (and its directors, officers, employees and affiliates) from and against all claims, liabilities, losses, damages and expenses (including reasonable attorney’s fees and costs) arising out of or attributable to: a.) any material breach by the Purchaser of this Purchase Plan (including the Purchaser’s representations and warranties), and b.) any violation by the Purchaser of applicable laws or regulations. The Purchaser will have no indemnification obligations in the case of gross negligence or willful misconduct of TOUR or any other indemnified person. This indemnification will survive the termination of this Purchase Plan.
|
2.
|
Notwithstanding any other provision herein, neither TOUR nor the Purchaser will be liable for:
|
i.
|
Special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages or any kind, even if advised of the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen.
|
ii.
|
Any failure to perform or for 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”.
|
3.
|
The Purchaser acknowledges and agrees that TOUR has not provided the Purchaser with any tax, accounting or legal advice with respect to this Purchase Plan, including whether the Purchaser would be entitled to any of the affirmative defenses under Rule 10b5-1.
|
C)
|
Governing Law
|
D)
|
Entire Agreement
|
E)
|
Assignment
|
F)
|
Notices
|
G)
|
Counterparts
|
BECKER DRAPKIN PARTNERS (QP), LP
|
||
By:
|
/s/ Steven R. Becker
|
|
Name:
|
Steven R. Becker
|
|
Title:
|
Managing Partner
|
|
ACKNOWLEDGED AND AGREED:
|
||
Tourmaline Partners, LLC
|
||
By:
|
/s/ Daniel Dispigna
|
|
Name:
|
Daniel Dispigna
|
|
Title:
|
COO
|
1.
|
Starting on June 9, 2014 purchase shares of Stock pursuant to the written instructions on
Appendix A
on a “not held” basis.
|
2.
|
TOUR will use its reasonable efforts to effect all open-market purchases pursuant to this Purchase Plan in accordance with the provisions of Rule 10b-18. TOUR will advise the Purchaser of all purchases executed under this Purchase Plan pursuant to the customary trade confirmation.
|
3.
|
This Purchase Plan will terminate upon the earliest of:
|
i.
|
the opening of the trading day immediately following the receipt by TOUR of written notice by the Purchaser of termination of the Purchase Plan;
|
ii.
|
July 31, 2014;
|
iii.
|
the completion of the purchases contemplated by the Purchase Plan;
|
iv.
|
the date TOUR becomes aware of the commencement of any voluntary or involuntary case or other proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, receiver or other similar official, in each case with respect to the Issuer or the taking of any corporate action by the Issuer to authorize or commence any of the foregoing;
|
v.
|
the date the Issuer or any other person publicly announces a tender or exchange offer with respect to the Stock or a merger, acquisition, reorganization, recapitalization or other similar business combination or transaction as a result of the consummation of which the Stock would be exchanged or converted into cash, securities or other property.
|
vi.
|
the Purchaser’s or TOUR’s reasonable determination that: (a) the Purchase Plan does not comply with Rule 10b5-1 or other applicable securities laws; or (b) the Purchaser has not, or TOUR has not, complied with the Purchase Plan, Rule 10b5-1 or other applicable securities laws.
|
4.
|
Any transaction pending at the time that this Purchase Plan is terminated shall be completed and TOUR shall receive the commission set forth in paragraph 5 below.
|
5.
|
The Purchaser will pay TOUR commission not to exceed $.04 per share.
|
6.
|
TOUR will provide Purchaser and Issuer with written trade confirmations of the purchases made pursuant to this Purchase Plan promptly after the execution of such transactions and in any event no later than the close of business on the day following any such sales, including sufficient information to permit the client to timely prepare and make all filings required under section 13(d), 13(g) and 16 of the Exchange Act.
|
7.
|
TOUR must suspend purchase of shares of Stock under this Purchase Plan on a particular day for any of the following reasons:
|
i.
|
A day specified by the Purchase Plan is not a day on which the shares of Stock trade regular way on the listing exchange or primary market center;
|
ii.
|
Trading of the shares of Stock on the listing exchange or the primary market center is suspended for any reason; or
|
iii.
|
TOUR cannot effect a purchase of shares of Stock due to legal, regulatory or contractual restrictions applicable to it, the Issuer or the Purchaser (including without limitation, Regulation M, Rule 10b-5 or Rule 10b-18).
|
8.
|
This Purchase Plan may be modified or amended by the Purchaser provided that such modification is made in good faith and not as part of a scheme to evade the prohibitions of Rule 10b-5 or Rule 10b-18. The Plan may be modified or amended only in accordance with the following:
|
9.
|
TOUR will from time to time trade on a proprietary basis in shares of Stock while in possession of this Purchase Plan and orders contemplated hereby, in accordance with industry rules, including New York Stock Exchange Rule 92. By signing this agreement, you acknowledge the foregoing disclosures, and consent to TOUR trading while it is in possession of this Plan or Purchaser’s order.
|
i.
|
At the time of the Purchaser’s execution of this Purchase Plan, the Purchaser is not aware of any material, non-public information with respect to the Issuer or the Stock. The Purchaser is entering into this Purchase Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1, Rule 10b-18 or other applicable securities laws.
|
ii.
|
The Issuer has approved this Purchase Plan, and agreed that the purchases to be made by TOUR pursuant to this Plan will not violate the Issuer’s insider trading policies.
|
iii.
|
Purchases of Stock under this Purchase Plan have been duly authorized by the Purchaser and are not prohibited by any legal, regulatory or contractual restriction or undertaking binding on the Purchaser. The Purchaser will inform TOUR as soon as possible of any subsequent legal or contractual restrictions affecting the execution of the Purchase Plan by TOUR or the Purchaser and of the occurrence of any event that would cause the Purchase Plan to be suspended or to end as contemplated in paragraphs 3 and 6.
|
iv.
|
The Purchaser agrees not to enter into or alter any corresponding or hedging transaction with respect to the Stock while this Purchase Plan remains in effect.
|
v.
|
If applicable, the Purchaser agrees to provide TOUR with all necessary information regarding the Purchaser’s previous purchases, as may be required for TOUR to calculate the Purchaser’s volume limitations under Rule 10b-18.
|
vi.
|
The Purchaser agrees to provide TOUR any documents that it reasonably requests to effect this Purchase Plan, including but not limited to: (i) a W-8 for the Purchaser; (ii) a copy of resolutions duly adopted by the Purchaser’s Board of Directors authorizing the Repurchase Program and/or this Purchase Plan; and (iii) a corporate resolution or secretary’s certificate identifying the undersigned and other specified individuals the authority to implement the Purchase Plan by, among other things, engaging a broker-dealer to act as the Purchaser’s agent for such purposes, establishing and maintaining an account on behalf of the Purchaser for the Purchase Program and to transact in and instruct such broker or dealer on the account to effect the Purchase Plan (“Authorized Persons”).
|
vii.
|
The Purchaser agrees that it will not take any action that would cause any purchase of Stock under this Purchase Plan not to comply with Rule 10b-18 or any other applicable law.
|
viii.
|
The Purchaser agrees that it does not have authority, influence or control over any purchase of Stock effected by TOUR pursuant to this Purchase Plan and will not attempt to exercise any such authority, influence or control. The Purchaser agrees that it will not, communicate any information relating to the Stock, the Issuer or the Purchaser to any employee of TOUR or its affiliates who are responsible for purchasing Stock in accordance with this Purchase Plan and during the time this Purchase Plan is in effect.
|
ix.
|
The Purchaser acknowledges and agrees that the Purchase Plan is a “securities contract,” as such term is defined in Section 741(7) of Title 11 of the United States Code, as it may be amended (the “Bankruptcy Code”), entitled to all of the protections given such contracts under the Bankruptcy Code.
|
x.
|
This Purchase Plan constitutes the Purchaser’s legal, valid and binding obligation enforceable against the Purchaser in accordance with its terms. There is no litigation, arbitration or other proceeding pending, or to the Purchaser’s knowledge threatened, that would prevent or interfere with the Purchaser’s purchase of Stock under this Purchase Plan.
|
xi.
|
That TOUR will be the Purchaser’s exclusive agent for the repurchase of shares of Stock pursuant to this Purchase Plan and any other repurchase program during the duration of this Purchase Plan.
|
xii.
|
The Purchaser agrees to transfer funds for purchases of Stock that TOUR makes on behalf of the Purchaser, but in no case later than the settlement date stipulated on the applicable trade confirmation.
|
xiii.
|
The Purchaser agrees to provide TOUR with trade reporting and security delivery instructions for the daily trade reporting and account statements as well as the delivery of the Stock purchased by TOUR on the Purchaser’s behalf.
|
xiv.
|
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)
|
Indemnification and Limitation on Liability
|
1.
|
The Purchaser agrees to indemnify and hold harmless TOUR (and its directors, officers, employees and affiliates) from and against all claims, liabilities, losses, damages and expenses (including reasonable attorney’s fees and costs) arising out of or attributable to: a.) any material breach by the Purchaser of this Purchase Plan (including the Purchaser’s representations and warranties), and b.) any violation by the Purchaser of applicable laws or regulations. The Purchaser will have no indemnification obligations in the case of gross negligence or willful misconduct of TOUR or any other indemnified person. This indemnification will survive the termination of this Purchase Plan.
|
2.
|
Notwithstanding any other provision herein, neither TOUR nor the Purchaser will be liable for:
|
i.
|
Special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages or any kind, even if advised of the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen.
|
ii.
|
Any failure to perform or for 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”.
|
3.
|
The Purchaser acknowledges and agrees that TOUR has not provided the Purchaser with any tax, accounting or legal advice with respect to this Purchase Plan, including whether the Purchaser would be entitled to any of the affirmative defenses under Rule 10b5-1.
|
C)
|
Governing Law
|
D)
|
Entire Agreement
|
E)
|
Assignment
|
F)
|
Notices
|
G)
|
Counterparts
|
BECKER DRAPKIN PARTNERS, LP
|
||
By:
|
/s/ Steven R. Becker
|
|
Name:
|
Steven R. Becker
|
|
Title:
|
Managing Partner
|
|
ACKNOWLEDGED AND AGREED:
|
||
Tourmaline Partners, LLC
|
||
By:
|
/s/ Daniel Dispigna
|
|
Name:
|
Daniel Dispigna
|
|
Title:
|
COO
|
1.
|
Starting on June 9, 2014 purchase shares of Stock pursuant to the written instructions on
Appendix A
on a “not held” basis.
|
2.
|
TOUR will use its reasonable efforts to effect all open-market purchases pursuant to this Purchase Plan in accordance with the provisions of Rule 10b-18. TOUR will advise the Purchaser of all purchases executed under this Purchase Plan pursuant to the customary trade confirmation.
|
3.
|
This Purchase Plan will terminate upon the earliest of:
|
i.
|
the opening of the trading day immediately following the receipt by TOUR of written notice by the Purchaser of termination of the Purchase Plan;
|
ii.
|
July 31, 2014;
|
iii.
|
the completion of the purchases contemplated by the Purchase Plan;
|
iv.
|
the date TOUR becomes aware of the commencement of any voluntary or involuntary case or other proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or similar law or seeking the appointment of a trustee, receiver or other similar official, in each case with respect to the Issuer or the taking of any corporate action by the Issuer to authorize or commence any of the foregoing;
|
v.
|
the date the Issuer or any other person publicly announces a tender or exchange offer with respect to the Stock or a merger, acquisition, reorganization, recapitalization or other similar business combination or transaction as a result of the consummation of which the Stock would be exchanged or converted into cash, securities or other property.
|
vi.
|
the Purchaser’s or TOUR’s reasonable determination that: (a) the Purchase Plan does not comply with Rule 10b5-1 or other applicable securities laws; or (b) the Purchaser has not, or TOUR has not, complied with the Purchase Plan, Rule 10b5-1 or other applicable securities laws.
|
4.
|
Any transaction pending at the time that this Purchase Plan is terminated shall be completed and TOUR shall receive the commission set forth in paragraph 5 below.
|
5.
|
The Purchaser will pay TOUR commission not to exceed $.04 per share.
|
6.
|
TOUR will provide Purchaser and Issuer with written trade confirmations of the purchases made pursuant to this Purchase Plan promptly after the execution of such transactions and in any event no later than the close of business on the day following any such sales, including sufficient information to permit the client to timely prepare and make all filings required under section 13(d), 13(g) and 16 of the Exchange Act.
|
7.
|
TOUR must suspend purchase of shares of Stock under this Purchase Plan on a particular day for any of the following reasons:
|
i.
|
A day specified by the Purchase Plan is not a day on which the shares of Stock trade regular way on the listing exchange or primary market center;
|
ii.
|
Trading of the shares of Stock on the listing exchange or the primary market center is suspended for any reason; or
|
iii.
|
TOUR cannot effect a purchase of shares of Stock due to legal, regulatory or contractual restrictions applicable to it, the Issuer or the Purchaser (including without limitation, Regulation M, Rule 10b-5 or Rule 10b-18).
|
8.
|
This Purchase Plan may be modified or amended by the Purchaser provided that such modification is made in good faith and not as part of a scheme to evade the prohibitions of Rule 10b-5 or Rule 10b-18. The Plan may be modified or amended only in accordance with the following:
|
9.
|
TOUR will from time to time trade on a proprietary basis in shares of Stock while in possession of this Purchase Plan and orders contemplated hereby, in accordance with industry rules, including New York Stock Exchange Rule 92. By signing this agreement, you acknowledge the foregoing disclosures, and consent to TOUR trading while it is in possession of this Plan or Purchaser’s order.
|
i.
|
At the time of the Purchaser’s execution of this Purchase Plan, the Purchaser is not aware of any material, non-public information with respect to the Issuer or the Stock. The Purchaser is entering into this Purchase Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1, Rule 10b-18 or other applicable securities laws.
|
ii.
|
The Issuer has approved this Purchase Plan, and agreed that the purchases to be made by TOUR pursuant to this Plan will not violate the Issuer’s insider trading policies.
|
iii.
|
Purchases of Stock under this Purchase Plan have been duly authorized by the Purchaser and are not prohibited by any legal, regulatory or contractual restriction or undertaking binding on the Purchaser. The Purchaser will inform TOUR as soon as possible of any subsequent legal or contractual restrictions affecting the execution of the Purchase Plan by TOUR or the Purchaser and of the occurrence of any event that would cause the Purchase Plan to be suspended or to end as contemplated in paragraphs 3 and 6.
|
iv.
|
The Purchaser agrees not to enter into or alter any corresponding or hedging transaction with respect to the Stock while this Purchase Plan remains in effect.
|
v.
|
If applicable, the Purchaser agrees to provide TOUR with all necessary information regarding the Purchaser’s previous purchases, as may be required for TOUR to calculate the Purchaser’s volume limitations under Rule 10b-18.
|
vi.
|
The Purchaser agrees to provide TOUR any documents that it reasonably requests to effect this Purchase Plan, including but not limited to: (i) a W-8 for the Purchaser; (ii) a copy of resolutions duly adopted by the Purchaser’s Board of Directors authorizing the Repurchase Program and/or this Purchase Plan; and (iii) a corporate resolution or secretary’s certificate identifying the undersigned and other specified individuals the authority to implement the Purchase Plan by, among other things, engaging a broker-dealer to act as the Purchaser’s agent for such purposes, establishing and maintaining an account on behalf of the Purchaser for the Purchase Program and to transact in and instruct such broker or dealer on the account to effect the Purchase Plan (“Authorized Persons”).
|
vii.
|
The Purchaser agrees that it will not take any action that would cause any purchase of Stock under this Purchase Plan not to comply with Rule 10b-18 or any other applicable law.
|
viii.
|
The Purchaser agrees that it does not have authority, influence or control over any purchase of Stock effected by TOUR pursuant to this Purchase Plan and will not attempt to exercise any such authority, influence or control. The Purchaser agrees that it will not, communicate any information relating to the Stock, the Issuer or the Purchaser to any employee of TOUR or its affiliates who are responsible for purchasing Stock in accordance with this Purchase Plan and during the time this Purchase Plan is in effect.
|
ix.
|
The Purchaser acknowledges and agrees that the Purchase Plan is a “securities contract,” as such term is defined in Section 741(7) of Title 11 of the United States Code, as it may be amended (the “Bankruptcy Code”), entitled to all of the protections given such contracts under the Bankruptcy Code.
|
x.
|
This Purchase Plan constitutes the Purchaser’s legal, valid and binding obligation enforceable against the Purchaser in accordance with its terms. There is no litigation, arbitration or other proceeding pending, or to the Purchaser’s knowledge threatened, that would prevent or interfere with the Purchaser’s purchase of Stock under this Purchase Plan.
|
xi.
|
That TOUR will be the Purchaser’s exclusive agent for the repurchase of shares of Stock pursuant to this Purchase Plan and any other repurchase program during the duration of this Purchase Plan.
|
xii.
|
The Purchaser agrees to transfer funds for purchases of Stock that TOUR makes on behalf of the Purchaser, but in no case later than the settlement date stipulated on the applicable trade confirmation.
|
xiii.
|
The Purchaser agrees to provide TOUR with trade reporting and security delivery instructions for the daily trade reporting and account statements as well as the delivery of the Stock purchased by TOUR on the Purchaser’s behalf.
|
xiv.
|
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.
|
1.
|
The Purchaser agrees to indemnify and hold harmless TOUR (and its directors, officers, employees and affiliates) from and against all claims, liabilities, losses, damages and expenses (including reasonable attorney’s fees and costs) arising out of or attributable to: a.) any material breach by the Purchaser of this Purchase Plan (including the Purchaser’s representations and warranties), and b.) any violation by the Purchaser of applicable laws or regulations. The Purchaser will have no indemnification obligations in the case of gross negligence or willful misconduct of TOUR or any other indemnified person. This indemnification will survive the termination of this Purchase Plan.
|
2.
|
Notwithstanding any other provision herein, neither TOUR nor the Purchaser will be liable for:
|
i.
|
Special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages or any kind, even if advised of the possibility of such losses or damages or if such losses or damages could have been reasonably foreseen.
|
ii.
|
Any failure to perform or for 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”.
|
3.
|
The Purchaser acknowledges and agrees that TOUR has not provided the Purchaser with any tax, accounting or legal advice with respect to this Purchase Plan, including whether the Purchaser would be entitled to any of the affirmative defenses under Rule 10b5-1.
|
C)
|
Governing Law
|
D)
|
Entire Agreement
|
E)
|
Assignment
|
F)
|
Notices
|
G)
|
Counterparts
|
BECKER DRAPKIN MANAGEMENT, LP
ON
BEHALF OF A MANAGED ACCOUNT
|
||
By:
|
/s/ Steven R. Becker
|
|
Name:
|
Steven R. Becker
|
|
Title:
|
Managing Partner
|
|
ACKNOWLEDGED AND AGREED:
|
||
Tourmaline Partners, LLC
|
||
By:
|
/s/ Daniel Dispigna
|
|
Name:
|
Daniel Dispigna
|
|
Title:
|
COO
|