Exhibit 99.1
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Sales Plan for Xxxxxxx Xxxxxxxx Xxxxxxx
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Sales Plan dated April 22, 2005 (this "Sales Plan") between Xxxxxxx
Xxxxxxxx Xxxxxxx ("Seller") and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"),
acting as agent.
A. Recitals
1. This Sales Plan is entered into between Seller and Bear Xxxxxxx as
the Seller's adoption of a written plan for trading securities that complies
with the requirements of Rule 10b5-1(c)(1) under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
2. Seller is establishing this Sales Plan in order to permit the
orderly disposition of a portion of Seller's holdings of the ordinary shares, no
par value per share, of UTi Worldwide Inc. (the "Stock" and the Issuer" as the
case may be), consisting of Stock that Seller under the outstanding stock
options issued by the Issuer dated 4/15/00 has the right to acquire 98,297
shares of Stock with an expiration date of 4/15/10 and a present exercise price
of $14.27 per share the ("Options").
B. Seller's Representations, Warranties and Covenants
1. As of the date on which Seller executed this Sales Plan, Seller was
not aware of any material nonpublic information concerning the Issuer or its
securities. Seller entered into this Sales Plan in good faith and not as part of
a plan or scheme to evade compliance with the federal securities laws.
2. The securities to be sold under this Sales Plan will be owned free
and clear by Seller upon exercise, subject to the compliance by Seller with the
vesting and exercise provisions of the Options and are not subject to any liens,
security interests or other encumbrances or limitations on disposition other
than those imposed by Rules 144 or 145 under the Securities Act of 1933, as
amended (the "Securities Act").
3. While the Sales Plan is in effect, Seller agrees not to sell any
shares of the Issuer through any broker other than Bear Xxxxxxx.
4. Seller agrees to provide Bear Xxxxxxx with a certificate dated as of
the date hereof and signed by the Issuer substantially in the form of Exhibit A
hereto prior to commencement of sales of Stock pursuant to this Sales Plan.
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5. Seller agrees to complete, execute and deliver to Bear Xxxxxxx a
seller's representation letter substantially in the form of Exhibit B hereto
prior to the commencement of sales of Stock pursuant to this Sales Plan.
6. The execution and delivery of this Sales Plan by Seller and the
transactions contemplated by this Sales Plan will not contravene any provision
of applicable law or any agreement or other instrument binding on Seller or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over Seller.
7. Seller agrees that until this Sales Plan has been terminated he
shall, upon request from Bear Xxxxxxx delivered to Seller from time to time,
provide such information as is reasonably requested to confirm that sales under
the Sales Plan are in compliance with Rule 144 or Rule 145.
8. Seller agrees that he shall not, directly or indirectly, communicate
any information relating to the Stock or the Issuer to any employee of Bear
Xxxxxxx or its affiliates who is involved, directly or indirectly, in executing
this Sales Plan at any time while the Sales Plan is in effect.
9. (a) 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. Bear Xxxxxxx shall provide
information to Seller, as Seller may reasonably request in writing, with respect
to each sale of Stock made under this Sales Plan, as soon as reasonably
practicable.
(b) Seller agrees that he shall in connection with the performance of
this Sales Plan, comply with all applicable laws, including, without limitation,
Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.
(c) Seller acknowledges that Seller is deemed an insider (generally
classified as an officer, director or 10% shareholder) of the Issuer.
10. (a) Seller represents and warrants that the Stock to be sold
pursuant to this Sales Plan will be issued upon exercise of the Options and will
be eligible for sale under Rule 144 or 145 upon such issuance.
(b) Seller agrees not to take, and agrees to use reasonable efforts 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 hereunder not to meet all applicable
requirements of Rule 144. Seller shall promptly advise Bear Xxxxxxx of any sale
of Stock by any other person or entity whose sales of Stock would be aggregated
with those of Seller for purposes of compliance with the volume limitations of
Rule 144. Seller understands and agrees that Bear Xxxxxxx shall not
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be liable for sales effected in excess of the Rule 144 volume limitations, due
to Sellers failure to promptly inform Bear Xxxxxxx of such sales prior to such
sales.
(c) Seller agrees to file Forms 144 for the sales to be effected under
this Sales Plan at such times as Seller may be required or permitted by
applicable law.(1)
(d) Bear Xxxxxxx agrees to conduct all sales pursuant to this Sales
Plan in accordance with whatever provisions of Rule 144 or Rule 145 are
applicable, including but not limited to, the manner of sale requirement of Rule
144 of the Securities Act, and in no event shall Bear Xxxxxxx effect any sale if
such sale would exceed the then-applicable volume limitation under Rule 144;
provided however, that Seller has informed Bear Xxxxxxx as set forth above of
all sales by any person or entity that Seller would have to aggregate with for
Rule 144 volume purposes.
C. Implementation of the Plan
1. Seller hereby appoints Bear Xxxxxxx to sell shares of Stock pursuant
to the terms and conditions set forth below. Subject to such terms and
conditions, Bear Xxxxxxx hereby accepts such appointment.
2. Bear Xxxxxxx is authorized to begin selling Stock pursuant to this
Sales Plan commencing on July 1, 2005 and ending on the earliest of December 31,
2005, the sale of 98,297 shares (the "Sale Amount"), or two business days after
receipt of notice of death of Seller or of the commencement of any proceedings
in respect of or triggered by the Seller's bankruptcy or insolvency or upon the
termination of this Sales Plan as provided below in Section D.
3. (a) Subject to the terms and conditions of this Sales Plan and Rule
144, commencing on July 1, 2005, Bear Xxxxxxx may sell the Sale Amount with
time, price and amount discretion by W. Xxxxxxx Xxxxx or another successor
registered representative designated by Bear Xxxxxxx. The Sale Amount may be
sold on any day (the "Daily Sale Amount") that the principal market in which the
Stock trades is open (each such day a "Sale Day") at a gross price before
deduction of commissions or xxxx-down of at least $55.00 per share ("Minimum
Sale Price").
Any shares not sold on a Sale Day may be rolled over and sold on any
subsequent Sale Day pursuant to this Sales Plan.
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1 The Seller's representation on the Forms 144 regarding Seller's knowledge of
material information regarding the Issuer may be made as of the date the Sales
Plan is adopted. The "Remarks" section of each Form 144 should state that the
sale is being made pursuant to a previously adopted plan intended to comply with
Rule 10b5-1(c) and indicate the later of the date the Sales Plan was adopted or
was most recently amended and that the representation is made as of such date.
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(b) Subject to the Minimum Sale Price and the other applicable
provisions of this Sales Plan, Bear Xxxxxxx may sell the Daily Sale Amount on
each Sale Day under ordinary principles of best execution.
(c) The Daily Sale Amount and any other applicable provisions of the
Sales Plan 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 similar transaction with respect to the Issuer's stock that
occurs during the Sales Plan.
(d) Seller understands that Bear Xxxxxxx may not be able to effect a
sale due to a market disruption or a legal, regulatory or contractual
restriction applicable to Bear Xxxxxxx or any other event or circumstance (a
"Blackout"). Seller also understands that even in the absence of a Blackout,
Bear Xxxxxxx may be unable to effect sales consistent with ordinary principles
of best execution due to insufficient volume of trading, failure of the Stock to
reach and sustain a limit order price, or other market factors in effect on the
date of a sale.
(e) Seller and Bear Xxxxxxx agree that if Issuer enters into a
transaction that results, in Issuer's good faith determination, in the
imposition of trading restrictions on the Seller, such as a stock offering
requiring an affiliate lock-up ("Issuer Restriction"), and if Issuer shall
provide Broker at least three (3) days' prior written notice signed by Issuer
and Seller and confirmed by telephone of such trading restrictions (Attn:
Xxxxxxx Xxxxxx, Fax No. (000) 000-0000, Tel: (000) 000-0000; and Xxxx Xxxxxx,
Fax No. (000) 000-0000, Tel: (000) 000-0000), then Bear Xxxxxxx will cease
effecting sales under this Sales Plan until notified in writing by Issuer that
such restrictions have terminated. Bear Xxxxxxx shall resume effecting Sales in
accordance with this Sales Plan as soon as practicable after the cessation or
termination of a Blackout or receipt of the notice as set forth in the preceding
sentence that the Issuer Restriction has ended. Any unfilled sales that are not
executed due to the existence of a Blackout or Issuer Restriction shall be
deemed to be cancelled and shall not be effected pursuant to this Sales Plan.
(f) Seller agrees to make appropriate arrangements with the Issuer and
its transfer agent and stock plan administrator to permit Bear Xxxxxxx to
furnish notice to the Issuer of the exercise of the Options and to have
underlying shares delivered to Bear Xxxxxxx as necessary to effect sales under
this Sales Plan, and Bear Xxxxxxx agrees to do so. Seller hereby authorizes Bear
Xxxxxxx to serve as Seller's agent and attorney-in-fact and, in accordance with
the terms of this Sales Plan, to exercise the Options in order to sell the Daily
Sale Amount. Seller agrees to complete, execute and deliver to Bear Xxxxxxx
Stock Option Cashless Exercise Forms, in the form attached hereto as Exhibit C,
for the exercise of Options pursuant to this Sales Plan at such times and in
such numbers as Bear Xxxxxxx shall request. Stock received upon exercise of
Options shall be delivered to an account at Bear Xxxxxxx for the benefit of
Seller (the "Plan Account").
(g) Bear Xxxxxxx shall withdraw Stock from the Plan Account in order to
effect sales of Stock under this Sales Plan. If on any day that sales are to be
made under this
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Sales Plan the number of shares of Stock in the Plan Account is less than the
number of shares to be sold on such day, Bear Xxxxxxx shall exercise a
sufficient number of Options to effect such sales.
(h) Bear Xxxxxxx shall, in connection with the exercise of Options,
remit to the Issuer the exercise price thereof along with such amounts as may be
necessary to satisfy withholding obligations. These amounts shall be deducted
from, the proceeds of the sale of the Stock and paid to the Issuer, together
with interest thereon computed in accordance with Bear Xxxxxxx'x customary
practices.
4. Subject to the parameters specified in Section C(3) above, and in
each such case, subject to the manner of sale requirement of Rule 144 being
satisfied as provided in Section B(10)(d), sales of the Stock may be effected,
in whole or in part, on an agency basis or, if Bear Xxxxxxx is a market maker
(as the term is defined in Section 3(a) (38) of the Securities Exchange Act of
1934) in the Stock at the time that any sale is to be made under this Sales
Plan, Bear Xxxxxxx may, in its sole discretion, effect one or more sales on a
principal basis commensurate with all regulatory requirements regarding best
execution practices.
5. Seller acknowledges and agrees that he does not have authority,
influence or control over any sales of Stock effected by Bear Xxxxxxx pursuant
to this Sales Plan, and will not attempt to exercise any authority, influence or
control over such sales.
D. Termination
1. This Sales Plan may not be terminated prior to the end of the Sales
Plan, except upon direction by Seller to Bear Xxxxxxx or by notice from Bear
Xxxxxxx that Bear Xxxxxxx, in its sole discretion, has determined that it is
prohibited from continuing to operate as agent by a legal, contractual or
regulatory restriction applicable to it or its affiliates. Any modification of
this Sales Plan by Seller will be made in good faith and not as part of a scheme
to evade the prohibitions of the Rule 10b5-1. In particular, subject to the
Seller's right to terminate this Sales Plan, Seller agrees that he will not
alter or modify this Sales Plan at any time that Seller is aware of any material
non-public information about the Issuer and/or the Stock.
E. Limitation of Liability
1. Notwithstanding any other provision hereof, neither Seller nor Bear
Xxxxxxx shall be liable to the other for:
(a) special, indirect, punitive, exemplary or consequential
damages, or incidental losses or incidental 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
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(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".
2. Seller has consulted with his own advisors as to the legal, tax,
business, financial and related aspects of, and has not relied upon Bear Xxxxxxx
or any person affiliated with Bear Xxxxxxx in connection with, Seller's adoption
and implementation of this Sales Plan.
3. Seller acknowledges and agrees that in performing his obligations
hereunder neither Bear Xxxxxxx nor any of its affiliates nor any of their
respective officers, employees or other representatives is exercising any
discretionary authority or discretionary control respecting management of
Seller's assets, or exercising any authority or control respecting management or
disposition of Seller's assets, or otherwise acting as a fiduciary (within the
meaning of Section 3(21) of the Employee Retirement Income Security Act of 1974,
as amended, or Section 2510.3-21 of the Regulations promulgated by the United
States Department of Labor) with respect to Seller or Seller's assets. Without
limiting the foregoing, Seller further acknowledges and agrees that neither Bear
Xxxxxxx nor any of its affiliates nor any of their respective officers,
employees or other representatives has provided any "investment advice" within
the meaning of such provisions, and that no views expressed by any such person
will serve as a primary basis for investment decisions with respect to Seller's
assets.
4. Seller agrees to indemnify and hold harmless Bear Xxxxxxx and its
officers, directors, employees, agents and affiliates from and against any
losses, liabilities, claims, damages and expenses including but not limited to
reasonable attorneys' fees and the costs of investigating or defending any
matter, arising out of or incurred in connection with this Sales Plan
("Losses"), except to the extent Losses are found in a final award or judgement
by an arbitrator or court of competent jurisdiction (not subject to further
appeal) to have resulted primarily and directly from gross negligence or willful
misconduct of Bear Xxxxxxx.
F. General
1. Seller and Bear Xxxxxxx acknowledge and agree that Bear Xxxxxxx is
acting as agent and custodian for Seller in connection with this Sales Plan and
that Seller is a "customer" of Bear Xxxxxxx within the meaning of Section 741(2)
of Title 11 of the United States Code (the "Bankruptcy Code"). Seller and Bear
Xxxxxxx further acknowledge and agree that this Sales Plan is a "securities
contract," as such term is defined in Section 741(7) of the Bankruptcy Code,
entitled to the protections of, among other sections, Sections 362(b)(6), 546(e)
and 555 of the Bankruptcy Code.
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2. This Sales Plan constitutes the entire agreement between the parties
with respect to this Sales Plan and supercedes any prior agreements or
understandings with regard to the Sales Plan.
3. This Sales Plan may be amended by Seller only upon the written
consent of Bear Xxxxxxx and receipt by Bear Xxxxxxx of a certificate signed by
Seller dated as of the date of such amendment certifying that Seller is not
aware of any material non-public information with respect to the Issuer;
provided that the foregoing shall not apply in the case of termination under
Section D.
4. All notices to Bear Xxxxxxx under this Sales Plan shall be deemed
notice when received and shall be given to all of the following persons in the
manner specified by this Sales Plan by telephone, by facsimile and by certified
mail:
Xxxxxxx Xxxxxx
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
W. Xxxxxxx Xxxxx
Bear, Xxxxxxx & Co. Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Xxxx Xxxxxx
Bear, Xxxxxxx & Co. Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
5. Seller's rights and obligations under this Sales Plan may not be
assigned or delegated without the written permission of Bear Xxxxxxx.
6. 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
and hereto were upon the same instrument.
7. 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
99.1-7
regulation. All other provisions of this Sales Plan will continue and remain in
full force and effect.
8. This Sales Plan, and all transactions contemplated hereunder, shall
be governed by and construed in accordance with the internal laws of the State
of New York. This Sales Plan may be modified or amended only by a writing signed
by the parties hereto.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of
the date first written above.
/s/ Xxxxxxx Xxxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxxx
Bear, Xxxxxxx & Co. Inc.
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
99.1-9
