Exhibit D
AMENDMENT TO SALES PLAN DATED AS OF JANUARY 16, 2004
Amendment dated February 6, 2004 ("Amendment") to Sales Plan dated as of
January 16, 2004 (the "Sales Plan"), between Xxxxxx X. Xxxx ("Seller") and Bear,
Xxxxxxx & Co. Inc. ("Broker").
WHEREAS, Seller desires to incorporate this Amendment to the aforementioned
Sales Plan.
WHEREAS, this Amendment is established to comply with the requirements of
Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
WHEREAS, as of the date of this Amendment, Seller is not aware of any
material non public information concerning Xxxxxxx Industries, Inc. or its
securities. Seller is entering into this Amendment in good faith and not as part
of a plan or scheme to evade compliance with the federal securities laws.
WHEREAS, Seller desires to amend the terms of the Sales Plan as set forth
herein. All other applicable provisions of the Sales Plan shall remain in
effect.
NOW, THEREFORE, Seller and Broker hereby agree that the text of Section
C.3(a) shall be deleted in its entirety and the following text shall be
inserted:
3. (a) Bear Xxxxxxx shall exercise Options to purchase a total of 200,000
shares of Stock on the first business day of each calendar month which shall
immediately succeed the trading day on the New York Stock Exchange on which the
closing sale price of the Stock shall be at least $30.00 per share (except that
with respect to the first calendar month during the term of this Sales Plan such
business day shall not be earlier than January 20, 2004). To the extent shares
of Stock are available from the exercise of Options after Stock is withheld by
the Issuer to pay required Federal, state and local withholding taxes due with
respect to such Option exercise, Bear Xxxxxxx shall sell, as soon as reasonably
practicable but with time and price discretion with Xxxxx Xxxxxxxx or Xxxx
Xxxxxxxxx or a successor registered representative designated by Bear Xxxxxxx,
the net amount of Stock remaining (the "Monthly Sale Amount"), at a gross price
before deduction of commissions or mark-down of at least $30.00 per share (the
"Minimum Sale Price"). The Monthly Sale Amount may commence being sold on the
business day immediately following the Option exercise and may be sold on any
business day thereafter until all such shares are sold (each such day, a "Sale
Day").
In addition, commencing February 9, 2004, Seller is giving Xxxxx Xxxxxxxx
or Xxxx Xxxxxxxxx or a successor registered representative of Bear Xxxxxxx the
discretion to exercise Options, on any business day which shall immediately
succeed a trading day on the New York Stock Exchange on which the closing price
of the Stock shall be at least $30.00 per share, to purchase such additional
number of shares of Stock which, net of the amount of Stock after Stock is
withheld by the Issuer to pay required Federal, state and local withholding
taxes due with respect to such Option exercise, together with all shares of
Stock sold by Bear Xxxxxxx during the applicable three-month period, may equal
the maximum number of shares of Stock which may be sold by Seller pursuant to
Rule 144(e). Thereafter, Xxxxx Xxxxxxxx or Xxxx Xxxxxxxxx or a successor
registered representative designated by Xxxx Xxxxxxx shall sell, as soon as
reasonably practicable but with time and price discretion, the net amount of
Stock remaining after Stock is withheld by the Issuer to pay required Federal,
state and local withholding taxes due with respect to such Option exercise (the
"Additional Monthly Sale Amount") at the Minimum Sale Price. The Additional
Monthly Sale Amount may commence being sold on the business day immediately
following the Option exercise and may be sold on any Sale Day. Bear Xxxxxxx
shall not be liable for any consequences arising from such exercise of Options,
including but not limited to, the number of Options exercised by Bear Xxxxxxx,
or if Bear Xxxxxxx is unable to sell all of the shares of Stock underlying such
Options.
The Issuer shall notify Bear Xxxxxxx not later than the opening of trading
on the day following each Option exercise of the number of shares of Stock to be
withheld by the Issuer to pay required Federal, state and local withholding
taxes due with respect to each Option exercise.
Notwithstanding the foregoing, Bear Xxxxxxx shall not exercise Options if
there are 250,000 or more shares of Stock in the Plan Account (as defined below)
which have not been sold by Bear Xxxxxxx pursuant to this Sales Plan, nor shall
Bear Xxxxxxx exercise Options to purchase more than 900,000 shares of Stock
during the term of this Sales Plan and, during the term of this Sales Plan, one
or more exercises of Options may be reduced so as not to exceed such limitation.
The first 800,000 Options exercised under this Sales Plan shall be from the
December Options and the remaining 100,000 Options exercised shall be from the
March Options.
IN WITNESS WHEREOF, the undersigned have signed this Amendment to Sales Plan as
of the date first written above.
Seller: Broker:
/s/ Xxxxxx X. Xxxx Bear, Xxxxxxx & Co. Inc.
----------------------------- By: ___________________
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx
Senior Managing Director
EXHIBIT A
ISSUER REPRESENTATION
1. Xxxxxxx Industries, Inc., a Delaware corporation (the "Issuer"),
represents that it has reviewed the Amendment to the Sales Plan dated February
6, 2004 (the "Amendment") between Xxxxxx X. Xxxx and Bear, Xxxxxxx & Co. Inc.
relating to the common stock, par value $.01 per share, of the Issuer, and the
Amendment does not violate the Issuer's xxxxxxx xxxxxxx policies.
Dated: February 6, 2004
Xxxxxxx Industries, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Vice President and General Counsel
