Sales Plan
Exhibit
10.1
Sales
Plan, dated August 10, 2005 (the “Sales Plan”), between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(“Seller”) and Northern Trust Securities, Inc. (“Northern”).
WHEREAS,
Seller desires to establish this Sales Plan to sell unregistered shares of
Class
A common stock, par value $0.01 per share, of Hawk Corporation, a Delaware
corporation (the “Issuer”), acquired prior to the initial public offering of the
Issuer (the “Stock”); and
WHEREAS,
Seller desires to engage Northern to effect sales of shares of Stock in
accordance with the Sales Plan;
1.
Subject
to Paragraph A.7., Northern shall effect sales (each a “Sale”) as provided
herein. Beginning October 7, 2005, and thereafter on the first Friday of each
subsequent quarter on which the American Stock Exchange (“Amex”) is open and
effectuating trades (“Trade Date”), an order for 7,500 shares of Stock (or, if
less than 7,500 of the Total Plan Shares remain, such remaining amount) at
the
market price per share on the Trade Date. If, consistent with ordinary
principles of best execution or for any other reason, Northern cannot sell
any
or all of the 7,500 shares of Stock on the Trade Date, then the amount of such
shortfall shall be sold as soon as practicable on the immediately succeeding
days in which the Amex is open and trades regular way following the Trade Date
(“Business Day”); provided that in no event may the amount of any shortfall be
sold any later than the tenth Business Day following the Trade Date. In the
event that any shares of Stock are not sold within ten Business Days of the
Trade Date, Northern will have no authority to sell any such shortfall on the
succeeding month’s Trade Date.
2.
Seller
acknowledges and agrees that Northern will handle the above order on a best
efforts basis. In the event any limit prices of orders are away from the
prevailing market prices at any time, there can be no assurance that such orders
will be executed in whole or in part. Seller agrees that all orders may be
partially executed and will not be treated as an all or none order.
3.
Seller
agrees to deposit 60,000 shares of Stock into a Northern brokerage account
NT1-302546 (the “Account”). Northern shall withdraw Stock from Seller’s Account
in order to effect sales of Stock under this Sales Plan. If on any day that
sales are to be made under this Sales Plan the number of shares of Stock in
Seller’s Account is less than the number of shares to be sold on such day, then
Northern shall notify Seller promptly of such deficiency, and Seller agrees
to
promptly deposit into the Account the number of shares of Stock necessary to
eliminate such deficiency.
4. Subject
to Paragraph A.10., Seller agrees not to remove or transfer shares of Stock
out
of the Account. Upon notification pursuant to Paragraph A.10., Seller shall
have
the right to remove the portion of the Total Plan Shares subject to such
Private
Sale or Gift from Seller’s Account.
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5. To
the
extent that any Stock remains in Seller’s Account upon termination of this Sales
Plan, Northern agrees to return such Stock promptly 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 Seller.
6. Northern
will deduct its reasonable and customary commissions from the proceeds of sales
of Stock under this Sales Plan, together with any other reasonable expenses
incurred by Northern in connection with such sales.
7. Subject
to Paragraph E.6., this Sales Plan shall become effective on August [__], 2005
(“Effective Date”) and shall terminate on the earliest of the date on which the
Total Plan Shares have been sold, the date this Sales Plan is terminated
pursuant to Paragraph E.3., or upon notification of death of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
8. Seller
acknowledges and agrees that he does not have authority, influence or control
over any sales of Stock effected by Northern pursuant to this Sales Plan, and
will not attempt to exercise any authority, influence or control over such
sales. Northern agrees not to seek advice from Seller with respect to the manner
in which he effects sales under this Sales Plan. Seller understands that
Northern shall have no discretion as to the timing of the sales of
Stock.
9. Northern
will notify Seller and Issuer of all transactions pursuant to customary trade
confirmations that are provided in the normal course of business.
10. Seller
agrees that he will notify Northern as soon as possible in the event he
consummates a private sale of any portion of the Total Plan Shares to the Issuer
(a “Private Sale”) or makes a bona fide gift of any portion of the Total Plan
Shares (a “Gift”). Seller agrees that in the event that any sale of a portion of
the Total Plan Shares by Northern pursuant to this Sales Plan, when combined
with a Private Sale or a Gift, results in the sale of Stock in excess of the
Total Plan Shares, Seller shall be responsible for delivering additional Stock
to Northern to cover the excess number of shares sold.
11. Seller
understands that Northern may not be able to effect a sale due to a market
disruption or a legal, regulatory or contractual restriction applicable to
Northern, an insufficient number of shares of Stock being in the Account or
a
pending sale under this Sales Plan causing Seller to exceed any applicable
volume limitations of Rule 144 or 145 under the Securities Act of 1933 (the
“Securities Act”). If any sale cannot be executed as required by Paragraph A.1.
due to a market disruption, a legal, regulatory or contractual restriction
applicable to Northern or any other such event, Northern shall effect such
sale
as promptly as practical after the cessation or termination of such market
disruption, applicable restriction or other event, or, at the discretion of
Northern, the Sales Plan may be terminated.
12. It
is the
intent of the parties that this Sales Plan comply with the requirements of
Rule
10b5-1(c)(1)(i)(B) under the Securities Exchange Act of 1934 (the “Exchange
Act”) and this Sales Plan shall be interpreted to comply with the requirements
of Rule 10b5-1(c).
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B. RULES
144 AND 145
The
following three paragraphs shall only apply to the extent Seller is subject
to
Rules 144 and 145.
1. Northern
agrees to conduct all sales in accordance with the manner of sale requirement
of
Rule 144 or 145 under the Securities Act, and in no event shall Northern effect
any such sale if such sale would exceed the then applicable volume limitation
under Rule 144, assuming Northern’s sales under this Sales Plan and those
notified to Northern pursuant to Paragraph B.3. are the only sales subject
to
that limitation. Seller will be responsible for completing and filing all
required Form 144s prior to the sale of any Stock covered under Rule 144. Seller
agrees to promptly provide Northern with a copy of any Form 144 filing made
by
Seller. In the event Seller requests, and Northern agrees, in writing, to make
certain Form 144 filings, Seller hereby appoints Northern as agent and
attorney-in-fact to execute, file and submit, on behalf of Seller, any such
required Form 144s.
2. Each
such
Form 144 shall state in the “Remarks” section that the sales thereunder are
being made pursuant to a previously adopted plan intended to comply with Rule
10b5-1(c), shall include the date Seller adopted this Sales Plan and shall
indicate that the representation regarding Seller’s knowledge of material
information speaks as of the adoption date of this Sales Plan.
3. Seller
agrees not to take any action that would cause the sales not to comply with
Rule
144 or 145, and Seller 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 not
to
comply with Rules 144 or 145. Seller will provide notice of any such
transactions during the three months preceding the date hereof and may not
enter
into any other selling program or transaction without the prior consent of
Northern.
1. Seller
represents and warrants that as of the time of execution of this Sales Plan,
Seller: (a) is not aware of material, nonpublic information with respect to
the
Issuer or any securities of the Issuer (including the Stock) and, (b) is
entering into this Sales Plan in good faith and not as part of a plan or scheme
to evade the prohibitions of Rule 10b5-1 under the Exchange Act or other
applicable securities laws.
2. At
the
time of Seller’s execution of this Sales Plan, Seller has not entered into or
altered a corresponding or hedging transaction with respect to the Stock.
Seller
agrees not to enter into any such transaction while this Sales Plan remains
in
effect.
3. Seller
agrees to make all filings, if any, required under and monitor his compliance
with Sections 13(d), 13(g) and 16 of the Exchange Act.
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4. Except
as
provided in Paragraph B.1., Seller acknowledges and agrees that Northern has
no
duty to determine whether Seller has violated Rules 144 or 145 under the
Securities Act, or Sections 13(d), 13(g) or 16 of the Exchange Act or the rules
adopted by the SEC thereunder. Seller understands that this Plan in no way
alters his obligations and responsibilities under Section 16, including those
prohibitions against short swing profits.
5. Seller
understands that there may be specific state law restrictions or limitations
applicable to this Sales Plan. Seller acknowledges and agrees that Northern
has
not provided Seller with any tax, accounting or legal advice. Seller understands
that he should seek the advice of counsel regarding this Sales Plan and the
various securities and tax law issues related thereto.
6. Seller
agrees to notify Northern immediately in the event of trading restrictions
being
imposed as the result of any lock up event restricting sales by affiliates,
such
as a stock offering, tender offer or acquisition transaction or any similar
event.
7. Seller
represents and warrants that he is able to sell shares of Stock, as contemplated
by this Sales Plan, in accordance with the Issuer’s statement regarding ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and confidentiality, as supplemented and amended from time to time
and
Seller has obtained the acknowledgement of the Issuer to enter into this Sales
Plan. Seller further represents and warrants that the Stock is not subject
to
any liens, security interests or other impediments to transfer (except for
limitations imposed by Rules 144 or 145, if applicable).
1. Seller
agrees to indemnify and hold harmless Northern and its directors, officers,
employees and affiliates from and against all claims, losses, damages and
liabilities (including without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) arising out of or attributable to Northern’s actions taken or
not taken in compliance with this Sales Plan or arising out of or attributable
to any breach by Seller of this Sales Plan (including Seller’s representations
and warranties hereunder) or any violation by Seller of applicable laws or
regulations. Seller will not be liable under the foregoing sentence to the
extent that any claim, loss, damage or liability is found in a final judgement
by a court to have resulted from the bad faith, gross negligence or willful
misconduct of Northern or its directors, officers, employees or affiliates.
This
indemnification shall survive termination of this Sales Plan.
2. Notwithstanding
any other provision hereof, Northern shall not be liable to Seller for: (a)
special, indirect, punitive, exemplary or consequential damages, or incidental
losses or 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”.
E.
GENERAL
1. This
Sales Plan shall be governed by and construed in accordance with the laws
of the
State of Delaware without
reference to choice of law principles and may be modified or amended only
by a
writing signed by the parties hereto and acknowledged by the
Issuer.
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2. This
Sales Plan shall be subject to all terms and conditions governing Seller’s
Account, including the Northern Account Agreement.
3. Notwithstanding
anything to the contrary herein, Seller and/or Issuer may notify Northern to
terminate this Sales Plan at any time. Seller may also notify Northern to modify
sales under this Sales Plan; provided, however, that such modification shall
not
be effective until 30 days after the notification thereof and the
acknowledgement of Issuer. Any such modification or termination shall be made
in
good faith and not as a part of a plan or scheme to evade the prohibitions
of
Rule l0b5-1 or other applicable securities laws. Seller agrees that he will
not
modify this Sales Plan at any time that he is aware of any material non-public
information about the Issuer and/or the Stock.
4. All
notices to Northern under this Sales Plan shall be given to Northern’s office by
facsimile at (▇▇▇) ▇▇▇-▇▇▇▇ or by certified mail at Northern Trust Securities,
Inc., ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Attention: ▇▇▇▇▇
▇▇▇▇▇. Upon termination or suspension of this Sales Plan, Northern will send
notice to Seller and Issuer to the address provided below.
5. Seller’s
rights and obligations under this Sales Plan may not be assigned or delegated
without the written permission of Northern.
6. This
Sales Plan shall not be effective until executed by Seller and Northern, and
acknowledged by Issuer. 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 were upon the same instrument.
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Witness
the following signatures for the Sales Plan, dated August 10, 2005, between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Northern Trust Securities, Inc.:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ August
10, 2005
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Northern
Trust Securities, Inc.
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ August
10, 2005
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Senior Vice President
Solely
for purposes of acknowledging notification of the foregoing Sales Plan and
not
as a party thereto, except to the extent of its rights thereunder, Hawk
Corporation, through its representative, has duly signed below:
Hawk
Corporation
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ August
10, 2005
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Vice President --- Finance
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
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SCHEDULE
A
Communications
required by the Plan shall be made to the following persons in accordance with
Section E. 4. of such Plan:
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To
Client:
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
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Copies
to:
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Address:
Northern Trust
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
E-Mail:
▇▇▇@▇▇▇▇.▇▇▇
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To
Issuer:
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
VP
- Finance
Address:
Hawk Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.
▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
E-Mail:
▇▇▇@▇▇▇.▇▇▇
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To
NTSI:
Primary
Contact: ▇▇▇▇▇ ▇▇▇▇▇
Alternate
Contact: ▇▇▇▇ ▇▇▇▇▇▇
Address:
Northern Trust Securities, Inc.
▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:
312/▇▇▇-▇▇▇▇
Fax:
312/444-5478
E-Mail:
▇▇▇▇▇@▇▇▇▇.▇▇▇
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