RULE 10B5-1 TRADING PLAN
This Trading Plan dated February 12, 2004 (the "Trading Plan") is
entered into between XXXXXX CAPITAL PARTNERS, LLC ("Seller") and BESSEMER TRUST
COMPANY OF FLORIDA ("Bessemer"), acting as agent, for the purpose of
establishing a trading plan that complies with Rule 10b5-1(c)(1) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
WHEREAS, Seller has opened investment management account no. 9D3Q13
with Bessemer, which account holds, among other assets, common stock, par value
$0.50 per share (the "Stock"), of WINNEBAGO INDUSTRIES, INC. ("Issuer"); and
WHEREAS, Seller desires that Bessemer be granted the authority, under
certain circumstances more particularly described in the Trading Plan, to sell
the Stock, and Bessemer desires to exercise such authority.
NOW THEREFORE, in consideration of the promises and obligations of
Seller and Bessemer hereunder, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Bessemer agree as follows:
1. SPECIFIC PLAN OF SALE. Bessemer agrees to effect sales of Stock on
behalf of Seller in accordance with the specific instructions set forth in
Exhibit A (the "Sales Instructions").
2. FEES/COMMISSIONS. Seller shall pay Bessemer its customary brokerage
and other fees in connection with the sales of the Stock, such amounts to be
deducted by Bessemer from the proceeds of sales under this Trading Plan.
3. SELLER'S REPRESENTATIONS AND WARRANTIES. As of the date hereof,
Seller represents and warrants that:
(a) Seller is not aware of any material nonpublic information
concerning Issuer or any securities of Issuer;
(b) Seller is entering into this Trading Plan in good faith
and not as part of a plan or scheme to evade the prohibitions of Rule
10b5-1;
(c) Seller is not subject to any legal, regulatory or
contractual restriction or undertaking that would prevent Bessemer from
conducting sales in accordance with this Trading Plan;
(d) This Trading Plan is consistent with Issuer's xxxxxxx
xxxxxxx policy;
(e) Seller has informed Issuer of this Trading Plan, has
furnished Issuer with a copy of this Trading Plan and has been informed
by Issuer that this Trading Plan is consistent with the Issuer's
xxxxxxx xxxxxxx policy;
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(f) Seller is not currently party to, and within the 60 days
preceding the date hereof, has not been party to, an agreement with
another Financial Institution entered into for the purpose of
establishing a trading plan that complies with Rule 10b5-1;
(g) the Stock to be sold under this Trading Plan is owned free
and clear by Seller and is not subject to any liens, security interests
or other encumbrances or limitations on dispositions;
(h) to the extent that any Stock is eligible for sale under
Rule 144 or Rule 145 under the Securities Act of 1933, as amended (the
"Securities Act"), that Stock is not subject to any liens, security
interests or other encumbrances or limitations on disposition, other
than those imposed by Rule 144 or Rule 145; and
(i) Seller has had an opportunity to consult with Seller's own
advisors as to the legal (including this Trading Plan's compliance with
Rule 10b5-1 and applicable state law), tax, business, financial,
accounting and related aspects of this Trading Plan, including
potential application of Section 16(b) of the Exchange Act to any
transaction (whether or not under this Trading Plan) engaged in by
Seller or on Seller's behalf. Seller has not relied upon Bessemer or
any person affiliated with Bessemer in connection with Seller's
adoption or implementation of this Trading Plan, and Seller
acknowledges that Seller has not received or relied on any
representations from Bessemer concerning this Trading Plan's compliance
with Rule 10b5-1.
4. AGREEMENTS BY SELLER.
(a) INVESTMENT MANAGEMENT ACCOUNT. Seller agrees that it will maintain
Bessemer investment management account no. 9D3Q13 during the effectiveness of
this Trading Plan and agrees to comply with the terms and conditions of the
Investment Management Agreement under which the account was established.
(b) DELIVERY OF STOCK.
(i) Seller agrees to execute such documents as are necessary to cause
the delivery of all shares of Stock to be sold pursuant to this Trading
Plan (with the amount to be agreed upon by Seller and Bessemer, if the
Sale Amount is designated as an aggregate dollar amount) (the "Plan
Shares") into an account at Bessemer in the name of and for the benefit
of Seller (the "Plan Account") prior to the commencement of any sales
under this Trading Plan. Upon notification from Bessemer, if any, that
the number of shares of Stock in the Plan Account is less than the
number of Plan Shares that Bessemer estimates remain to be sold
pursuant to this Trading Plan, Seller agrees to execute such documents
that are necessary to cause the delivery promptly to the Plan Account
of the number of shares of Stock specified by Bessemer as necessary to
eliminate this shortfall.
(ii) Seller agrees that its failure to make effective delivery of
shares of Stock shall relieve Bessemer of its obligations under this
Trading Plan.
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(c) HEDGING TRANSACTIONS. While this Trading Plan is in effect, Seller
agrees to comply with the prohibition set forth in Rule 10b5-1(c)(1)(C) against
entering into or altering a corresponding or hedging transaction or position
with respect to the Stock.
(d) NOTICE TO BESSEMER. Seller agrees to notify Bessemer to terminate
sales, as appropriate, as soon as practicable upon the occurrence of any of the
events contemplated in paragraph 7(c).
(e) COMMUNICATIONS. Seller agrees that it shall not, directly or
indirectly, communicate any material nonpublic information relating to the Stock
or Issuer to any employee of Bessemer.
(f) CERTAIN REQUIRED EXCHANGE ACT FILINGS. Seller agrees to make all
filings, if any, required under Sections 13(d), 13(g) and 16 of the Exchange Act
in a timely manner, to the extent any such filings are applicable to Seller.
(g) COMPLIANCE WITH APPLICABLE LAWS. Seller agrees to comply with all
applicable laws, including, without limitation, Section 16(a) of the Exchange
Act and the rules and regulations promulgated thereunder.
(h) NO INFLUENCE. Seller acknowledges and agrees that Seller does not
have, and shall not attempt to exercise, any influence over how, when or whether
to effect sales of Stock pursuant to this Trading Plan following the execution
thereof.
(i) STOCK NON-MARGINABLE. The Stock is not marginable and may not be
used by Seller as collateral for any purpose.
(j) DISCRETION. Seller acknowledges and agrees that Bessemer and its
affiliates and any of their respective officers, employees or other
representatives shall exercise discretionary authority or discretionary control
in connection with effecting sales under this Trading Plan, subject to the Sales
Instructions under this Trading Plan and the express provisions of this Trading
Plan.
(k) ACKNOWLEDGMENT OF RELIEF FROM OBLIGATION TO EFFECT SALES. Seller
acknowledges and agrees that Bessemer shall be relieved of its obligation to
sell Stock as otherwise required by paragraph 1 above at any time when:
(i) Bessemer has determined that (A) a material adverse change in the
financial markets, in the market activity in the stock of Issuer or in
the internal systems of Bessemer or one of its affiliates, an outbreak
or escalation of hostilities or other crisis or calamity has occurred
(in each case, the effect of which is such as to make it, in the sole
judgment of Bessemer, impracticable for Bessemer to sell Stock); or (B)
a trading suspension with respect to the Stock by the Securities and
Exchange Commission or the New York Stock Exchange ("NYSE"), a
delisting of the Stock by the NYSE, or a banking moratorium has
occurred;
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(ii) Bessemer determines, in its sole discretion, that it is prohibited
from doing so by a legal, contractual or regulatory restriction
applicable to it or its affiliates or to Seller or Seller's affiliates;
or
(iii) This Trading Plan is terminated in accordance with paragraph 7
below.
(l) Seller further acknowledges and agrees that if Bessemer cannot
effect a sale as required by paragraph 1 above for any of the reasons
set forth in paragraph 4(k) above, Bessemer shall effect such sale as
promptly as practical after the cessation or termination of such cause,
subject to the restrictions set forth in paragraph 1 of Exhibit A.
5. PRO RATA ALLOCATION OF SALES. Seller agrees and acknowledges that
Bessemer shall allocate the proceeds of all Stock actually sold on a particular
day pursuant to all Rule 10b5-1 Trading Plans concerning Issuer's securities
that Bessemer manages (including this Trading Plan) pro rata among all such
Trading Plans, based on the ratio of (x) the Stock to be sold that day under
each such Trading Plan to (y) the sum of the proceeds of all Stock to be sold
that day under all such Trading Plans.
6. RULE 144 AND RULE 145. With respect to sales of Stock subject to
Rule 144 or Rule 145, Seller and Bessemer agree to comply with the following
provisions.
(a) Agreements by Seller Regarding Rule 144 and Rule 145.
(i) Seller agrees not to take, and agrees to cause any person or entity
with which Seller would be required to aggregate sales of Stock
pursuant to Rule 144(a)(2) or (e) not to take, any action that would
cause the sales hereunder not to meet all applicable requirements of
Rule 144 or Rule 145.
(ii) Seller agrees to complete, execute and deliver to Bessemer Forms
144 for sales to be effected under the Trading Plan at such times and
in such numbers as Bessemer shall request. Seller hereby grants
Bessemer a power of attorney to complete and file on behalf of Seller
any required Forms 144.
(iii) Seller agrees to complete, execute and deliver to Bessemer Rule
144 Letters (substantially in the form attached hereto as Exhibit C)
for sales to be effected under the Trading Plan at such times and in
such numbers as Bessemer shall request.
(b) Agreements by Bessemer Regarding Rule 144, Rule 145 and Section 16.
(i) Bessemer agrees to conduct all sales pursuant to the Trading Plan
in accordance with the manner of sale requirement of Rule 144 and/or
Rule 145. Bessemer shall not effect any sales that it knows would
exceed the then-applicable volume limitation under Rule 144 or Rule
145.
(ii) Bessemer agrees to file such Forms 144 furnished by Seller
pursuant to paragraph 6(a)(ii) above on behalf of Seller as required by
applicable law.
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Bessemer shall make one Form 144 filing at the beginning of each
three-month period, commencing upon the first Sale Day under the
Trading Plan.
(iii) Bessemer agrees to submit such Rule 144 Letters furnished by
Seller pursuant to paragraph 6(a)(iii) above on behalf of Seller as
required by Issuer's transfer agent.
(iv) Bessemer agrees to notify the Issuer as soon as practicable
following a sale of Stock under the Trading Plan, but in no event later
than the first business day after such sale, so that the appropriate
Section 16 filing can be made on Seller's behalf. Notice may be made
via e-mail to Xxxxxxx X. Xxxxx (xxxxxx@xxxxxxxxxxxx.xxx) (facsimile no.
641-585-6806) and Xxxxxxx X. Xxxxx (xxxxx@xxxxxxx.xxx) (facsimile no.
312-516-3981) and must include the trade date, the number of shares
sold and the sale price(s).
7. EFFECTIVENESS AND TERMINATION. This Trading Plan is effective as of
the date first written above and will terminate on the earliest to occur of the
following (the "Plan Sales Period"):
(a) on July 31, 2004;
(b) the date that the aggregate number of shares of Stock sold pursuant
to this Trading Plan reaches the Plan Shares amount;
(c) promptly after the date on which Bessemer receives notice from
Seller of the termination of this Trading Plan; PROVIDED, HOWEVER, that such
notice shall be accompanied by a certification from Seller that Seller has
notified Issuer in writing of such termination; or
(d) upon the determination by Bessemer, or promptly after the
determination by Seller and notice to Bessemer (either of which determinations
must be reasonable), that this Trading Plan does not comply with Rule 10b5-1.
8. INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) INDEMNIFICATION.
(i) Seller agrees to indemnify and hold harmless Bessemer 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 Bessemer's actions taken or not taken in compliance
with this Trading Plan, arising out of or attributable to any breach by
Seller of this Trading Plan (including Seller's representations and
warranties hereunder), and any violation by Seller of applicable laws
or regulations. This indemnification shall survive termination of this
Trading Plan.
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(ii) Bessemer agrees to indemnify and hold harmless Seller 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 the gross negligence or willful
misconduct of Bessemer in connection with this Trading Plan.
(b) LIMITATION OF LIABILITY.
(i) Notwithstanding any other provision hereof, Bessemer shall not be
liable to Seller, and Seller shall not be liable to Bessemer, 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."
(ii) Notwithstanding any other provision hereof, Bessemer shall not be
liable to Seller for (A) the exercise of discretionary authority or
discretionary control under this Trading Plan, if any, or (B) any
failure to effect a sale required by paragraph 1, except for failures
to effect sales as a result of the gross negligence or willful
misconduct of Bessemer.
9. AGREEMENT TO ARBITRATE. Any dispute between Seller and Bessemer
arising out of, relating to or in connection with this Trading Plan or any
transaction relating to this Trading Plan shall be determined only by
arbitration administered by Judicial Arbitration and Mediation Service in
accordance with its Comprehensive Arbitration Rules and Procedures.
10. NOTICES.
(a) All notices to Bessemer under this Trading Plan shall be provided
to Xxxxxx Xxxxxx at Bessemer in the manner specified by this Trading Plan by
telephone at (000) 000-0000, by facsimile at (000) 000-0000 or by certified mail
to the address below:
Bessemer Trust Company of Florida
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
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(b) All notices to Seller under this Trading Plan shall be given to
Xxxx X. Xxxxxx on behalf of Xxxxxx Capital Partners, LLC in the manner specified
by this Trading Plan by telephone at 000-000-0000, by facsimile at 000-000-0000
or by certified mail to the address below:
Xxxxxx Capital Partners, L.L.C.
c/o Xxxx X. Xxxxxx
0000 X.X. Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
11. AMENDMENTS AND MODIFICATIONS. This Trading Plan may be amended by
Seller only upon the written consent of Bessemer and receipt by Bessemer of the
following documents, each dated as of the date of such amendment:
(a) a certificate signed by Seller, certifying that the representations
and warranties of Seller contained in this Trading Plan are true at and as of
the date of such certificate as if made at and as of such date; and
(b) an issuer certificate completed by Issuer substantially in the form
of Exhibit B hereto.
12. ASSIGNMENT. Seller's rights and obligations under this Trading Plan
may not be assigned or delegated without the written permission of Bessemer.
13. INCONSISTENCY WITH LAW. If any provision of this Trading 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 Trading Plan will continue and remain in full force and
effect.
14. GOVERNING LAW. This Trading Plan shall be governed by and construed
in accordance with the internal laws of the State of New York and may be
modified or amended only by a writing signed by the parties hereto.
15. ENTIRE AGREEMENT. This Trading Plan, including Exhibits, and the
Investment Management Agreement referred to in paragraph 4(a) above, constitute
the entire agreement between the parties with respect to this Trading Plan and
supercede any prior agreements or understandings with regard to this Trading
Plan.
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16. COUNTERPARTS. This Trading 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.
NOTICE: THIS AGREEMENT CONTAINS A PREDISPUTE ARBITRATION CLAUSE IN
PARAGRAPH 9.
IN WITNESS WHEREOF, the undersigned have signed this Trading Plan as of
the date first written above.
XXXXXX CAPITAL PARTNERS, LLC
By: /s/ Xxxx Xxxx Xxxxx
-----------------------------------
Xxxx Xxxx Xxxxx
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
BESSEMER TRUST COMPANY OF FLORIDA
By: /s/ Jo Xxx Xxxxxxxxxx
-----------------------------------
Name: Jo Xxx Xxxxxxxxxx
Title: Managing Director
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EXHIBIT A
THIS EXHIBIT A MAY NOT BE AMENDED EXCEPT IN ACCORDANCE WITH THE TRADING PLAN.
SPECIFIC INSTRUCTIONS
1. Bessemer shall enter a Sell Order for such number of shares of stock
("Sale Amount") for the account of Seller on each specified Sale Day
(as defined below) at the specified Sale Price (as defined below) as
Bessemer shall in its discretion determine, subject to the following
restriction: In no event shall Bessemer sell any shares of Stock
pursuant to the Trading Plan prior to two Trading Days after the date
of this Trading Plan.
2. A "Sale Day" shall be any day during the Plan Sales Period that the
limit price specified in Paragraph 4 below is met; PROVIDED, HOWEVER,
that if any Sale Day is not a Trading Day, such Sale Day shall be
deemed to fall on the next succeeding Trading Day within the Plan Sales
Period.
3. Bessemer shall effect sales of a maximum of 1,250,000 shares of Stock
under the Trading Plan. Subject to the foregoing limitation and the
minimum Sale Price set forth below, Bessemer shall have full discretion
to effect sales of the Stock.
4. The "Sale Price" shall be the market price per share of Stock on the
Sale Day, provided that such market price is not less than $60.00 per
share.
5. The maximum number of shares of Stock that may be sold under paragraph
3 and the Sale Price 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 change in
capitalization with respect to Issuer that occurs while the Trading
Plan is in effect.
6. The term "Stock" as used in the Trading Plan shall include any class or
series of common stock of Issuer into which the Stock shall be
converted whether pursuant to a reclassification, reorganization,
reincorporation or similar event.
7. A "Trading Day" is any day during the Plan Sales Period that the NYSE
(the "Principal U.S. Market") is open for business and the Stock trades
in a regular way on the principal U.S. market; PROVIDED, HOWEVER, that
a "Trading Day" shall mean only that day's regular trading session of
the Principal U.S. Market and shall not include any extended-hours or
after-hours trading sessions that the Principal U.S. Market may allow.
8. Bessemer may sell Stock on any national securities exchange, in the
over-the-counter market, on an automated trading system or otherwise.
9. Bessemer may, in its sole discretion, elect to act as principal in
executing sales under the Trading Plan.
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EXHIBIT B
ISSUER CERTIFICATE
1. Winnebago Industries, Inc. ("Issuer") certifies that it has approved,
and retained a copy of, the Trading Plan dated February 12, 2004 (the
"Trading Plan") between Xxxxxx Capital Partners, LLC ("Seller") and
Bessemer Trust Company of Florida ("Bessemer") relating to the common
stock, par value $0.50 per share, of Issuer (the "Stock").
2. The Trading Plan is consistent with Issuer's xxxxxxx xxxxxxx policies,
and, to the best of Issuer's knowledge, there are no legal, contractual
or regulatory restrictions imposed by Issuer applicable to Seller or
Seller's affiliates as of the date of this representation that would
prohibit either Seller from entering into the Trading Plan or any sale
pursuant to the Trading Plan.
3. To avoid delays in connection with transfers of stock certificates and
settlement of transactions under the Trading Plan, and in
acknowledgment of Bessemer's agreement in paragraph 6(b) of the Trading
Plan that sales of Stock under the Trading Plan will be effected in
compliance with Rule 144, Issuer agrees that it will, immediately upon
Seller's directing delivery of Stock into an account at Bessemer in the
name of and for the benefit of Seller, instruct its transfer agent to
process the transfer of shares and issue a new certificate to Seller
that does not bear any legend or statement restricting its
transferability to a buyer.
Dated: February 12, 2004
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, General Counsel
and Secretary
Winnebago Industries, Inc.
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EXHIBIT C
RULE 144 LETTER
Date
[Broker to be used]
Ladies and Gentlemen:
In connection with the proposed sale by me of _______ shares (the
"Shares") of common stock of ______________________ (the "Securities") through
[Broker] Inc. and pursuant to Rule 144 of the Securities Act of 1933, I hereby
represent to you that:
1. I have not made and will not make, any payment in connection with the
execution of the above or to any persons other than [Broker] Inc.
2. I have not solicited or arranged for the solicitation of and will not
solicit or arrange for the solicitation of orders to buy the Securities in
anticipation of or in connection with this transaction.
3. During the three months prior to the date of this letter, a total of zero
(0) Shares of the Company have been sold by me and any person whose sales must
be aggregated with mine as provided in paragraphs (a) and (e) of Rule 144.
4. At the time of the sale of the Shares which I have instructed [Broker]
Inc. to sell for my account, together with the Shares mentioned in paragraph 3
above, the aggregate amount of Shares sold during the preceding three (3) months
will not exceed the greater of (i) 1% of outstanding Securities as shown by the
most recent report or statement published by the Issuer or (ii) the average
weekly volume of trading in the Securities reported on all national securities
exchanges and/or reported through the automated quotation system of a registered
securities association during the four calendar weeks preceding the filing of
Form 144, or if no such Form 144 is required to be filed, the date of the
receipt of the order to execute the transaction by the broker or the date of
execution of the transaction directly with a market maker as defined in Section
39(a)(38) of the Securities Exchange Act of 1934, or (iii) the average weekly
volume of trading in the Securities reported through the consolidated
transaction reporting system contemplated by Rule 11Aa3-1 under the Securities
Exchange Act of 1934 during the four-week period specified in clause (ii) above.
5. I warrant that I have beneficially owned these securities for a period of
at least one (1) year as computed in accordance with paragraph (d) of Rule 144.
6. I am aware that payment of the proceeds of the sale is subject to the
Shares being transferred and delivered free of restriction into the name of
[Broker] Inc. and that transfer of the Shares may be delayed as the certificates
bear a restrictive legend.
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7. I herewith deliver to you an executed copy of Form 144, three executed
copies of which were transmitted to the Securities and Exchange Commission and
if the Securities are admitted to trading on any national securities exchange, I
will transmit one executed copy of such notice to the principal exchange on
which such securities are admitted to trading.
I am familiar with Rule 144 under the Securities Act of 1933, as amended,
and agree that you may rely on the above statements in executing the order
referred to above.
Very truly yours,
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[Name]
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