Amended and Restated Sales Plan
EXHIBIT
10.15
Amended
and Restated Sales Plan
Amended
and Restated Sales Plan, dated March 22, 2006 (this “Sales
Plan”), between Xxxxxx X. Xxxxxxx (“Seller”) and Northern Trust Securities, Inc.
(“Northern”).
RECITALS
WHEREAS,
on August 10, 2005, Seller established a sales plan (the
“2005 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”);
WHEREAS,
Seller desires to amend certain terms of the 2005 Sales
Plan as set forth in this Sales Plan;
WHEREAS,
Seller desires to sell a total of 60,000 shares of Stock
(the “Total Plan Shares”); and
WHEREAS,
Seller desires to engage Northern to effect sales of
shares of Stock in accordance with this Sales Plan;
NOW,
THEREFORE, Seller and Northern hereby agree as follows:
A. IMPLEMENTATION
OF
THIS 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, or any exchange or association on which the shares of the Issuer
are
then listed (“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;
provided that in no event shall Northern sell any shares of Stock at a price
that is less than the average per share closing price on the ten trading days
on
which Amex is open and effectuating trades immediately preceding the applicable
Friday. If, consistent with ordinary principles of best execution, because
of
the limit price set forth in the immediately preceding sentence 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 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
has deposited 60,000 shares of Stock into its
specified Northern brokerage account (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.
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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.
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 March 22, 2006, 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 Xxxxxx
X. Xxxxxxx.
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, this 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.
C.REPRESENTATIONS
AND AGREEMENTS OF
SELLER
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.
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.
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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 xxxxxxx xxxxxxx 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).
D. INDEMNIFICATION
AND LIMITATION ON LIABILITY
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.
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 (except as set forth in Paragraph A.7) 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.
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4. All
notices to Northern under this Sales Plan shall be
given to Northern’s office by facsimile at (000) 000-0000 or by certified mail
at Northern Trust Securities, Inc., 00 X. XxXxxxx Xxxxxx, X-00, Xxxxxxx,
Xxxxxxxx 00000. Attention: Xxxxx Xxxxx. 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.
Witness
the following signatures for this Sales Plan, dated March 22,
2006, between Xxxxxx X. Xxxxxxx and Northern Trust Securities, Inc.:
| /s/ Xxxxxx Xxxxxxx | /s/ Xxxxxx Xxxxxx | ||
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|
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| March 22, 2006 | Northern
Trust Securities, Inc. Senior Vice President, Stock Services March 22, 2006 |
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 | ||
| |
|
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| Date: March 22, 2006 | By: | /s/ Xxxxxx X. Xxxxxxxx |
|
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||
| Vice President - Finance | ||
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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:
|
To
Client:
Name:
Xxxxxx X. Xxxxxxx
Address:
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Telephone:
000-000-0000
|
Copies
to:
Name:
Xxxxx Xxxxxxxxxx
Address:
Northern Trust
0000
X. Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx 00000
Telephone:
000-000-0000
Fax:
000-000-0000
E-Mail:
xx0@xxxx.xxx
|
|
To
Issuer:
Name:
Xxxxxx X. Xxxxxxxx
VP
- Finance
Address:
Hawk Corporation
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Fax:
000-000-0000
E-Mail:
xxxxxxxxxxx@xxxxxxxx.xxx
|
Name:
Xxxxxxx Xxxx
Address:
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000
Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Fax:
000-000-0000
E-Mail:
xxx@xxx.xxx
|
|
To
NTSI:
Primary
Contact: Xxxxx Xxxxx
Alternate
Contact: Xxxx Xxxxxx
Address:
Northern Trust Securities, Inc.
00
X. XxXxxxx Xxxxxx, Xxxxxxx, XX 00000
Telephone:
312/000-0000
Fax:
312/444-5478
E-Mail:
xx000@xxxx.xxx
|
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