UBS Logo] Rule 10b5-1 Trading Plan
Exhibit 99.1
[UBS Logo]
Rule 10b5-1 Trading Plan
This Trading Plan (the “Trading Plan”) is entered into on July 13, 2012 (“Seller’s Adoption Date”) between BFC Financial Corporation (“Seller”) and UBS Financial Services Inc. (“UBSFS”) for the purpose of selling shares of common stock (“Stock”) of Benihana Inc. (“Issuer”), BNHN (Ticker), including; Stock that the Seller has the right to acquire under outstanding stock options (“the Options”); Stock that is acquired by Seller pursuant to the Issuer’s employee stock purchase plan (the “ESPP Stock”); Stock that is acquired upon vesting of outstanding restricted stock units/awards from Issuer (“RSUs/RSAs”); and Stock that is acquired upon vesting of outstanding performance share awards from Issuer (“PSAs”) listed on Exhibit A, in accordance with Rule 10b5-1(c)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Seller and UBSFS agree as follows:
| 1. | Specific Plan of Sale. UBSFS, acting as agent, agrees to effect sales of Stock on behalf of Seller in accordance with the specific instructions set forth in Exhibit A (the “Trading Instructions”) UBSFS’s obligations under this Trading Plan will not take effect until UBSFS approves and accepts this Trading Plan. |
| 2. | Fees/Commissions. Seller shall pay UBSFS $0.10 per share of Stock sold; with such amounts to be deducted by UBSFS from the proceeds of sales under this Trading Plan. |
| 3. | Seller’s Representations and Warranties. Seller represents and warrants that: |
| (a) | Seller is a corporation duly organized under the laws of the British Virgin Islands and has all requisite corporate power and authority to execute and deliver this Trading Plan, and to perform its obligations hereunder. The execution, delivery and performance of this Trading Plan by Seller has been duly authorized by all necessary corporate action and constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms; |
| (b) | All investment decisions on behalf of Seller, including without limitation, decisions to purchase or sell Stock owned by Seller, are made by the following officers of Seller: |
| Name: Xxxx X. Xxxxxx |
Title: Executive Vice President and Chief Financial Officer |
| (c) | As of Adoption Date, the Individuals listed above are not aware of any material nonpublic information concerning Issuer or any securities of Issuer; |
| (d) | Seller has implemented reasonable policies and procedures to ensure that individuals making investment decisions would not violate the laws prohibiting trading on the basis of material nonpublic information; |
| (e) | 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; |
| (f) | Seller has informed Issuer of this Trading Plan and has furnished Issuer with a copy, and Seller has determined that this Trading Plan is consistent with Issuer’s xxxxxxx xxxxxxx policy; |
| (g) | Seller has disclosed to UBSFS any agreements that Seller is currently party to, or within the past 60 days, has been party to with another broker, dealer or financial institution (each, a “Financial Institution”)entered into for the purpose of establishing a trading plan that complies with Rule 10b5-1; |
| (h) | Seller is not subject to any legal, regulatory or contractual restriction or undertaking that would prevent UBSFS from conducting sales in accordance with this Trading Plan; |
| (i) | 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, other than those imposed by Rule 144 or Rule 145, if applicable; |
| (j) | Seller has had an opportunity to consult with Seller’s own advisors as to the legal, tax, financial and other aspects of this Trading Plan, including this Trading Plan’s compliance with Rule 10b5-1 and applicable state law. Seller has not received or relied on any representations from UBSFS concerning this Trading Plan’s compliance with Rule 10b5-1. |
| 4. | Agreements by Seller. Seller acknowledges and agrees to the following provisions: |
| (a) | Brokerage Account. Seller shall open a sole-purpose UBSFS brokerage account in the name of and for the benefit of Seller (the “Plan Account”), prior to acceptance and approval of this Trading Plan by UBSFS 10b5-1 Group. |
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| (b) | Delivery of Stock. Seller shall deliver all shares of Stock, including restricted securities, as defined in Rule 144, to be sold pursuant to this Trading Plan into the Plan Account prior to the commencement of any sales under this Trading Plan. This excludes any Options, PSAs, RSAs, RSUs, or ESPP shares to be sold under the plan listed in Exhibit A. If the Sale Amount is designated as an aggregate dollar amount, Seller agrees to deliver shares of Stock in an amount to be agreed upon by Seller and UBSFS as sufficient to effect sales anticipated under this Trading Plan, and upon notification from UBSFS that the number of shares of Stock in the Plan Account is less than the number of shares that UBSFS estimates remain to be sold pursuant to this Trading Plan, Seller agrees to deliver promptly to the Plan Account the number of shares of Stock specified by UBSFS as necessary to eliminate this shortfall. |
| (c) | Hedging Transactions. While this Trading Plan is in effect, Seller shall comply with the prohibition set forth in Rule 10b5-1(c)(1)(i)(C) against entering into or altering a corresponding or hedging transaction or position with respect to the Stock. |
| (d) | Notice to UBS Financial Services Inc. Seller shall notify UBSFS to terminate or suspend sales, as appropriate, as soon as practicable upon the occurrence of any of the events contemplated in paragraph 7(a) or (b) or paragraph 8(c). |
| (e) | Communications. Seller shall not, directly or indirectly, communicate any material nonpublic information relating to the Stock or Issuer to any employee of the UBSFS 10b5-1 Group or any UBSFS Financial Advisor. |
| (f) | Compliance with Applicable Laws and Required Exchange Act Filings. Seller shall comply with all applicable laws, rules and regulations, and Seller shall make all filings required under Sections 13 and 16 of the Exchange Act in a timely manner. |
| (g) | No Influence. 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. |
| (h) | Stock Non-Marginable. The Stock is not marginable and may not be used by Seller as collateral for any purpose. |
| (i) | Execution, Average Pricing and Pro Rata Allocation of Sales. UBSFS may sell Stock on any national securities exchange, in the over-the-counter market, on an automated trading system or otherwise. UBSFS or one of its affiliates may make a market in the Stock and may act as principal in executing sales under the Trading Plan. To the extent that UBSFS administers other trading plans relating to Issuer’s securities, UBSFS may aggregate orders for Seller with orders under other sellers’ trading plans for execution in a block and allocate each execution on a pro rata basis to each seller. In the event of partial execution of block orders, UBSFS shall allocate the proceeds of ill Stock actually sold on a particular day pursuant to all Rule 10b5-1 trading plans concerning Issuer’s securities that UBSFS manages pro rata based on the ratio of (x) the number of shares, to be sold pursuant to the order instructions of each Trading Plan to (y) the total number of shares to be sold under all Trading Plans having the same type of order instructions. |
| (j) | Exclusivity. Until this Trading Plan has been terminated, Seller shall not enter into any agreement with, give any instructions to or adopt a plan for trading With another Financial Institution with respect to purchase or sale of the Stock or the Options that are referenced in Exhibit A of the plan, for the purpose of establishing a trading plan that complies with Rule 10b5-1. |
| (k) | Acknowledgment of Relief from Obligation to Effect Sales. UBSFS shall be relieved of its obligation to sell Stock as otherwise required by paragraph 1 above at any time when: |
| (i) | UBSFS has determined that (A) 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 (B) a material adverse change in the financial markets, in the market activity in the Stock or in the internal systems of UBSFS 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 UBSFS, impracticable for UBSFS to sell Stock); or (C) a trading suspension with respect to the Stock by the Securities and Exchange Commission or the primary listed exchange or a delisting of the Stock or a banking moratorium has occurred; if UBSFS cannot effect a sale for any of such reasons, UBSFS shall effect such sale as promptly as practical after the cessation or termination of such cause, subject to the restrictions set forth in paragraph I of Exhibit A; |
| (ii) | This Trading Plan is suspended in accordance with paragraph 7 below; or |
| (iii) | This Trading Plan is terminated in accordance with paragraph 8 below. |
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| (l) | Plan Sales made pursuant to Prospectus. |
Seller agrees to provide UBSFS 10b5-1 Group with immediate notification in the event that there is a material change or development with respect to the status of the Prospectus, including but not limited to the effectiveness of the Prospectus. In the event that such notification is not timely ‘nude, thereby requiring the buy back of Stock sold pursuant to this Plan, the Seller shall be responsible for any and all loss associated with such buy back.
| 5. | Rule 144 and Rule 145. With respect to sales of Stock subject to Rule 144 or Rule 145, Seller and UBSFS agree to comply with the following provisions: |
| (a) | Agreements by Seller Regarding Rule 144 and Ride 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 UBSFS Forms 144 for sales to be effected under the Trading Plan at such times and in such numbers as UBSFS shall request. Seller hereby grants UBSFS a power of attorney to complete and file on behalf of Seller any required Forms 144. The remarks section of each Form 144 filed shall include a statement to the effect that the shares covered by the Form 144 are being sold pursuant to a Rule 10b5-1 trading plan dated as of the date hereof, and the representation regarding the sellers knowledge of material nonpublic information speaks as of that plan adoption date. |
| (iii) | Seller agrees to complete, execute and deliver to UBSFS Rule 144 Seller’s Representation Letters (in the form attached as Exhibit C) for sales to be effected under the Trading Plan at such times and in such numbers as UBSFS shall request. |
| (iv) | Seller agrees to notify 10b5-1 Group of UBSFS immediately if there is any change in Seller’s employment, affiliate or non-affiliate status. |
| (b) | Agreements by UBSFS Regarding Rule 141 and Rule 145. |
| (i) | UBSFS agrees to conduct all sales pursuant to the Trading Plan in accordance with the manner of sale requirement of Rule 144. UBSFS shall not affect any sales that it knows would exceed the then-applicable volume limitation under Rule 144. |
| (ii) | UBSFS agrees to file such Forms 144 furnished by Seller pursuant to paragraph 5(a)(ii) on behalf of Seller as required by applicable law. |
| (iii) | UBSFS agrees to submit such Rule 144 Seller’s Representation Letters furnished by Seller pursuant to paragraph 5(a)(iii) on behalf of Seller as required by Issuer’s transfer agent. |
| 6. | Options. If applicable, Seller and UBSFS agree to the provisions regarding the exercise of Options contained in Exhibit A. |
| (a) | Seller’s Representations and Warranties. |
| (i) | Seller represents and warrants that the Options listed in Exhibit A are held free and clear without liens, security interests or other encumbrances or limitations on exercise of the vested portion thereof, other than the requirement that Seller comply with the exercise provisions of such Options; and |
| (ii) | The shares of Stock acquired through exercise of the Options shall be held free and clear by Seller without liens, security interests or other encumbrances or limitations on disposition. |
| (b) | Delivery. |
| (i) | Seller agrees to complete, execute and deliver to UBSFS Stock Option Exercise Notices, in the form provided by Issuer, for the exercise of Options pursuant to the Trading Plan at such times and in such numbers as UBSFS shall request. Seller hereby authorizes UBSFS to deliver such Stock Option Exercise Notices to Issuer on Seller’s behalf as necessary to effectuate such exercises and settle the sales of Stock underlying such Options under the Trading Plan. Seller agrees to make appropriate arrangements to ensure that Stock received upon the exercise of Options shall be delivered to the Plan Account promptly after Issuer’s receipt of the applicable Stock Option Exercise Form. |
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| (ii) | UBSFS shall be relieved of its obligation to exercise Options and sell Stock as otherwise required at any time when Seller has failed to deliver Stock Options Exercise Notices or underlying shares. |
| (c) | Exercise. |
| (i) | UBSFS shall exercise a sufficient number of Options to effect such sales in the manner specified in Exhibit A. |
| (ii) | UBSFS shall, in connection with the exercise of Options, remit to Issuer the exercise price along with such amounts as may be necessary to satisfy withholding obligations. These amounts shall be deducted from the proceeds of sale of the Stock, together with late fees, if applicable. |
| (iii) | UBSFS shall in no event exercise any Option if, at the time of exercise, the cost of the Option exercise (plus fees and commissions) is equal to or greater than the market value of the Stock. |
7. Suspension. Sales under this Trading Plan shall be suspended as follows:
| (a) | Promptly after the date on which UBSFS receives notice front Seller or Issuer of legal, contractual or regulatory restrictions applicable to Seller or Seller’s affiliates that would prevent UBSFS from selling Stock under this Trading Plan (such notice merely stating that there is a restriction applicable to Seller without specifying the reasons for We restriction), including a restriction based on Seller’s awareness of material nonpublic information in connection with a tender offer for Issuer’s securities (transactions on the basis of which Rule 14e-3 of the Exchange Act could be violated). The Seller or the Issuer will notify UBSFS in writing of its intention and specify the beginning date and the ending date, to the extent that it’s known, of the suspension or temporary withdrawal period. The notice shall be provided no less than two (2) business days prior to beginning or end of suspension date. |
| (b) | In the event of a Qualifying Securities Offering, promptly after the date on which UBSFS receives notice from Issuer or Seller of the Suspension Date until UBSFS receives notice from Issuer or Seller of the Resumption Date; provided, however, that (i) Seller Certifies that Seller has no control over the Suspension Date or the Resumption Date, and (ii) if Seller is unable to make such certification then this paragraph shall result in a termination of the Trading Plan, rather than suspension. |
“Qualifying Securities Offering” means any offering of securities of Issuer for cash in which the lead underwriter, lead manager, initial purchaser, placement agent or other entity performing a similar function (each, an “Underwriter”) requires Seller to agree to restrict Seller’s ability to effect Sales pursuant to this Trading Plan.
“Suspension Date” means the date on which a preliminary prospectus, offering memorandum, offering circular or other disclosure document (each, a “Preliminary Offering Document”) is first used to market securities or Issuer by the Underwriter, or if a Preliminary Offering Document is not used, the date on which the underwriting agreement, purchase agreement, placement agent agreement or similar agreement (each, an “Underwriting Agreement”) is entered into by the Underwriter and Issuer.
“Resumption Date” means the day immediately following the expiration of the time period during which Seller was restricted from effecting Sales pursuant to this Trading Plan in accordance with the Underwriting Agreement.
| (c) | In the event that the UBSFS 10b5-1 Group becomes aware of material nonpublic information concerning Issuer or the Stock, UBSFS may be required by applicable law or, in its sole discretion find it advisable, to suspend sales under this Mating Plan. In such case, UBSFS shall promptly notify Seller of the suspension of sales under this Trading Plan. |
| 8. | Termination. This Trading Plan will terminate on the earliest to occur of the following: |
| (a) | at the close of trading on January 28, 2013; |
| (b) | promptly after the date on which UBSFS receives notice from Seller of the termination of this Trading Plan, in which case, Seller agrees to notify the issuer promptly of such termination; |
| (c) | upon the reasonable determination by UBSFS, or promptly after the reasonable determination by Seller and notice to UBSFS, that this Trading Plan does not comply with Rule 10b5-1; |
| (d) | promptly after the date UBSFS is notified of the death of Seller; |
| (e) | immediately in the event that Seller fails to deliver any Stock pursuant to paragraph 4(b) or fails to satisfy the delivery requirements with respect to Options set forth herein; or |
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| (f) | the date that the aggregate number of shares of Stock sold pursuant to this Trading Plan reaches 150,000 shares. |
| 9. | Confidentiality. UBS Financials Services, Inc. will maintain the confidentiality adds Plan and will not disclose the specific terms of this Plan to any person or entity, except: (i) to those persons who reasonably need to know the information in the execution and administration of the Trading Plan; (ii) to respond to any inquiry from the Securities and Exchange Commission, FINRA, NYSE or any other self-regulatory organization, ;my State securities regulator, or any other governmental authority regarding the Trading Plan, (iii) to any other person or entity to the extent such disclosure is required by law or by a subpoena issued by a court of competent jurisdiction. |
| 10. | Indemnification; Limitation of Liability. |
| (a) | Indemnification. |
| (i) | Seller agrees to indemnify and hold harmless UBSFS 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) (collectively, “Losses”) arising out of or attributable to (A) UBSFS’s actions taken or not taken in compliance with this Trading Plan, (B) any breach by Seller of this Trading Plan (including Seller’s representations and warranties hereunder), or (C) any violation by Seller of applicable laws or regulations. This indemnification shall survive termination of this Trading Plan. |
| (ii) | UBSFS agrees to indemnify and hold harmless Seller from and against all Losses arising out of or attributable to the gross negligence or willful misconduct of UBSFS in connection with this Trading Plan. |
| (b) | Limitation of Liability. |
| (i) | Notwithstanding any other provision hereof, UBSFS shall not be liable to Seller, and Seller shall not be liable to UBSFS, 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, UBSFS 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 UBSFS. |
| 11. | Agreement to Arbitrate. Any dispute between Seller and UBSFS 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 as provided in the UBSFS brokerage account agreement referred to in paragraph 4(a). |
| 12. | Notices. |
| (a) | All notices to UBSFS under this Trading Plan shall be provided in writing to the 10b5-1 Group of UBSFS by facsimile at fax number 000-000-0000. |
| (b) | All notices to Seller under this Trading Plan shall be provided by mail to the address below: |
0000 X. Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, XX 00000
| (c) | UBSFS will provide notification of all sales of Stock and exercise of Options under this Trading Plan to Seller and to Issuer by e-mail at the below addresses by 6 p.m. (ET) on the date of execution on a best efforts basis, with a final report by 12 p.m. (ET) on the following business day. Seller and Issuer agree to notify UBSFS in writing of any changes to the contact information provided. |
xxxxxxx@xxxxxxxxxxxx.xxx
xxxxxx@xxxxxxxxxxxx.xxx
xxxxxxxxx@xxxxxxxx.xxx
xxxxx.xxxxxx@xxx.xxx
xxxxx.xxxxx@xxx.xxx
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| 13. | Amendments and Modifications. This Trading Plan and the Exhibits hereto may be amended by Seller only upon the written consent of UBSFS and receipt by UBSFS 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. |
| 14. | 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. |
| 15. | Governing Law. This Trading Plan shall be governed by and construed in accordance with the internal laws of the State of New York. |
| 16. | Entire Agreement. This Trading Plan, including Exhibits, and the brokerage account agreement referred to in paragraph 4(a) above, constitute the entire agreement between the parties with respect to this Trading Plan and supersede any prior agreements or understandings with regard to this Trading Plan. |
| 17. | 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; provided, however that (i) Seller’s Adoption Date is the same date that Seller signed this Trading Plan and its Exhibits, (ii) the Trading Plan Effective Date may be no sooner than two weeks following the Seller’s Adoption Date, (iii) the Issuer’s Certification Date, as defined in Exhibit B, may not be earlier than the Seller’s Adoption Date, and (iv) UBSFS will not approve and accept this Trading Plan on any date that is prior to the Seller’s Adoption Date or the Issuer’s Certification Date. |
NOTICE: THIS AGREEMENT CONTAINS A PREDISPUTE ARBITRATION CLAUSE IN PARAGRAPH 11.
IN WITNESS WHEREOF, the undersigned have signed this Trading Plan as of the date specified below.
BFC FINANCIAL CORPORATION
| /s/ Xxxx X. Xxxxxx | July 13, 2012 | |||
| Name: Xxxx X. Xxxxxx | Date | |||
| Title: Executive Vice President and Chief Financial Officer | ||||
NOTICE: Signature date above must be the same as Seller’s Adoption Date as defined in the opening section of this Trading Plan.
ACCEPTED BY: UBS FINANCIAL SERVICES INC.
| /s/ Xxxx Xxxxxx | July 13, 2012 | |||
| Name: Xxxx Xxxxxx Title: Executive Director |
Date | |||
| /s/ Xxxxxxxxxxx XxXxxx | July 13, 2012 | |||
| Name: Xxxxxxxxxxx XxXxxx Title: Director |
Date | |||
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