10B5-1 SALES PLAN
This
10B5-1 SALES PLAN (the “Sales Plan”) is dated this 14th day of March 2008,
between the SBL, L.L.C. (“Seller”) and CAPITAL
WEST SECURITIES, INC. (“Broker”).
For good and valuable consideration, the receipt of which is acknowledged,
Seller and Broker hereby agree as follows:
1. Background.
This
Sales Plan is entered into between Seller and Broker for the purpose of
establishing a trading plan that complies with the requirements of Rule
10b5-1(c)(1) promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). Seller is establishing this Sales Plan in order to permit
the disposition of a portion of Seller’s holdings of the common stock, par value
$0.10 per share (the “Stock”), of LSB Industries, Inc, (the “Issuer”). Seller
desires to engage Broker to effect sales of share of stock in accordance with
this Sales Plan. On the date of execution of this Agreement, which is the date
first set forth above, the Seller is not subject to any Issuer blackout period
restricting the sale of Stock by the Seller.
2. Appointment
of Broker; Sales.
Seller
hereby appoints Broker to sell shares of Stock pursuant to the terms and
conditions set forth below. Subject to such terms and conditions, Broker accepts
such appointment.
2.1 Authorizing
Selling.
Commencing, Thursday, -------------May 15, 2008 (the “Effective Date”), and
continuing for a period of 12 calendar months after the Effective Date (the
“Effective Period”), Broker is authorized and directed, from time to time during
the Effective Period, to sell up to 200,000 shares of Stock. Sales of Stock
pursuant to this Sales Plan will be made at Broker’s discretion on the American
Stock Exchange (“AMEX”) at a price per share equal to or greater than $28.00,
with such prices being before deducting any commission, commission equivalent,
xxxx-up or differential, or other expense of sale.
2.2 Market
Disruptions.
Seller
understands that Broker may not be able to effect a sale due to a market
disruption. If any sale cannot be executed due to a market disruption, Broker
shall effect such sales as promptly as practical after the cessation or
termination of such market disruption pursuant to this Sales Plan.
3. Term.
This
Sales Plan is effective on the Effective Date. Broker will cease selling Stock
and the Sales Plan will terminate on the earlier of:
(a) March
14,
2009;
(b) the
completion of the sale of 200,000 shares of Stock pursuant to this Sales
Plan;
(c) notice
to
Seller or Broker that Seller or Broker is not able to effect the sale of Stock
under this Sales Plan due to a legal, regulatory or contractual restriction
applicable to Seller or Broker;
(d) death
of
Seller;
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(e) Seller’s
or Broker’s reasonable determination that the Sales Plan does not
comply with
Rule
10b5-1 or other applicable securities laws;
(f) written
notice by Seller or Seller’s counsel to Broker informing Broker of
Seller’s suspension
or termination of the Sales Plan; or
(g) written
notice by Broker or Broker’s counsel to Seller informing Seller
of Broker’s
withdrawal as Seller’s broker under the Sales Plan.
4. Seller’s
Representations, Warranties and Covenants.
4.1 Compliance.
As of
the date 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), (b) is not subject to any legal, regulatory or
contractual restriction or undertaking that would prevent Broker from conducting
sales in accordance with this Sales Plan and (c) 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 or compliance with the federal securities laws.
4.2 Notification.
Seller
shall immediately notify Broker if Seller becomes subject to a legal, regulatory
or contractual restriction or undertaking that would prevent Broker from making
sales pursuant to this Sales Plan.
4.3 No
Issuer Prohibition.
Seller
is currently able to sell shares of Stock in accordance with the Issuer’s
xxxxxxx xxxxxxx policies and Seller has obtained the approval of the Issuer’s
counsel to enter into this Sales Plan.
4.4 No
Liens.
The
shares of Stock subject to the Sales Plan are free and clear of liens and
encumbrances of any kind.
4.5 No
Disclosure; Hedging.
While
the Sales Plan is in effect, Seller will not, directly or indirectly, (a)
disclose to any Broker or any persons affiliated with Broker who is effecting
sales under this Sales Plan any information concerning the Stock or the Issuer
that might influence the execution of this Sales Plan or (b) engage in
offsetting or hedging transactions in violation of Rule 10b5-1.
4.6 Exchange
Act Reporting.
Seller
agrees to make all filings, if any, required under Sections 13(d) and 16 of
the
Exchange Act.
4.7 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 Sales Plan.
5. Rule
144 and Section 16(a) Compliance.
5.1 Rule
144.
Broker
agrees to conduct all sales under this Sales Plan in accordance with the manner
of sale requirement of Rule 144, if applicable, under the Securities Act of
1933, as amended (the “Act”), if applicable. If Rule 144 is applicable, Broker
will not effect any sale which would exceed the then applicable volume
limitation under Rule 144, assuming Broker’s sales under this Sales Plan are the
only sales subject to that limitation. 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 paragraph (a) (2) or (e) of Rule 144 not to take
any
action that would cause the sales under this Sales Plan not to comply with
Rule
144.
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5.2 Form
144.
Broker
will be responsible for completing and filing on behalf of Seller each required
Form 144. Seller hereby grants Broker a power of attorney to complete and file
on behalf of Seller Forms 144. Seller understands and agrees that Broker will
make one Form 144 filing at the beginning of each three-month period commencing
on the Effective Date. Each Form 144 filed by Broker on behalf of Seller shall
(a) state that the sales are being effected in accordance with an existing
Sales
Plan intended to comply with Rule 10b5-1, (b) indicate the date the Sales Plan
was adopted, and (c) state that the representations are made as of such
date.
5.3 Form
4.
Broker
understands and acknowledges that Seller is subject to the beneficial ownership
reporting requirements of Section 16(a) of the Exchange Act. Section 16(a)
requires Seller to file a Statement of Changes in Beneficial Ownership of
Securities on Form 4 to report each sale by Broker of the Stock under this
Sales
Plan. The required filing date is generally within two business days following
each such sale. To enable Seller to comply with Seller’s Section 16(a) filing
obligations, Broker agrees to notify Seller immediately following each sale
of
Stock under this Sales Plan, but in no event later than one business day
following the date of each such sale.
6. Certain
Events.
6.1 Stock
Split.
In the
event of a stock split or reverse stock split of the Stock, the maximum number
of shares of Stock to be sold and the minimum price established above in
paragraph 2 will be automatically adjusted proportionately.
6.2 Reorganization.
In the
event of a reincorporation or other corporate organization resulting in an
automatic share-for-share exchange of new shares for the type of Stock subject
to the Sales Plan, then the new shares will automatically replace the type
of
Stock originally specified in the Sales Plan.
7. General.
7.1 Interpretation.
This
Sales Plan is intended to comply with the requirements of Rule
10b5-1(c)(1)(i)(B) under the Exchange Act, and this Sales Plan shall be
interpreted to comply with the requirements of Rule 10b5-1(c).
7.2 Broker
Prohibitions.
Broker
shall immediately notify Seller if Broker becomes subject to a legal, regulatory
or contractual restriction or undertaking that would prevent Broker from making
sales pursuant to this Sales Plan.
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7.3 Amendment.
This
Sales Plan may be modified or amended only upon the written agreement of Seller
and Broker, and only to the extent such modification or amendment complies
with
the terms requirements of Rule 10b5-1 as of the date of the modification or
amendment.
7.4 Governing
Law.
This
Sales Plan shall be governed by and construed in accordance with the laws of
the
State of Oklahoma and may be modified or amended only by a writing signed by
the
parties hereto.
7.5 Proceeds.
Proceeds from each sale of Stock effective under this Sales Plan will be
delivered to Seller’s Brokerage account, or such other account as directed in
writing by Seller to Broker.
7.6 Counterparts.
This
Sale Plan may be signed in any number of counterparts, each shall be an original
with the same effect as if all of the signatures were upon the same
instrument.
7.7 Reformation.
If any
provision of this Sales Plan is or becomes inconsistent with any applicable
present or future law, rule or regulation, that provision will be deemed
modified or, if necessary, rescinded in order to comply with the relevant law,
rule or regulation. All of the provisions of this Sales Plan will continue
and
remain in full force and effect.
IN
WITNESS WHEREOF,
the
undersigned have signed this Sales Plan as of the date first written
above.
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SBL,
L.L.C.
By: /s/
Xxxx X. Xxxxxx
Name:
Xxxx X.
Xxxxxx
Title:
Manager
(“Seller”)
CAPITAL
WEST SECURITIES, INC.
By: /s/
Xxxxx Xxxxxx
Name:
Xxxxx
Xxxxxx
Title:
Vice
President
(“Broker”)
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