Exhibit 10.1
SALES TRADING PLAN AGREEMENT
WHEREAS, SL Industries, Inc., a New Jersey corporation (the "Company") desires
to purchase, from time to time, certain shares (the "Shares") of common stock,
par value $.20 per share (the "Common Stock"), of the Company.
WHEREAS, the Company desires to enter into this agreement for the purpose of
establishing a trading plan to make purchases of Shares in compliance with all
applicable laws, including, but not limited to, Section 10(b) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
promulgated thereunder, including, but not limited to, Rule 10b5-1. References
herein to this "Agreement" refer to this agreement and specifically include the
trading plan described herein.
NOW, IT IS AGREED, as of this March 27, 2007 by the Company and Mutual
Securities, Inc. (the "Broker") as follows:
SECTION 1. TERMS OF PURCHASE.
(a) The Company desires that the Broker effect purchases of the Shares on its
behalf in accordance with trading requirements adopted by the Company and
to be delivered in writing to the Broker by separate letter (the "Initial
Trading Instructions"). The trading requirements adopted by the Company
are referred to herein as the "Program Period."
(b) In furtherance of Section 1(a) hereof, the Company directs the Broker
to purchase, in customary brokerage transactions, the Shares, for the
Company's account or accounts, in the Broker's sole discretion as to
execution and timing, subject to the condition that as of the time of
any purchase of Shares, any individual employee of the Broker making
the Broker's investment decisions on behalf of the Company shall not be
in possession of or aware of material nonpublic information relating to
the Company's business, operations or prospects or the value of the
Common Stock ("Material Nonpublic Information").
(c) Notwithstanding the foregoing, the Broker shall not purchase Shares at any
time when the Broker, in its sole discretion, shall have determined that
such purchase would violate applicable law, including, without limitation,
Section 10(b) of the 1934 Act and the rules and regulations promulgated
thereunder and Section 5 of the Securities Act of 1933, as amended (the
"1933 Act").
(d) The Company agrees that, during the Program Period, it shall not
exercise any subsequent influence over how, when or whether to effect
purchases of the Shares, except that the Company may amend this
Agreement as set forth in Section 3 hereof. Each of the Company and
the Broker agrees that it will not discuss with the other the Company's
business, operations or prospects or any other information likely to be
related to the value of the Shares or likely to influence a decision to
purchase the Shares. Notwithstanding the preceding sentence, with the
approval of counsel to the Broker, the Company may communicate with
Broker personnel who are not responsible for, and have no ability to
influence, the execution of the trading plan set forth in this
Agreement.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) The Company represents, warrants and covenants to the Broker as follows:
(i) The Company is not, as of the date hereof, aware of or in possession
of Material Nonpublic Information.
(ii) The Company will at all times, in connection with the performance of
this Agreement, comply with all applicable laws, including, without
limitation, Section 16 of the 1934 Act and the rules and regulations
promulgated thereunder.
(iii) The Company agrees to provide such additional information and to
execute such additional documents or instruments as may be
reasonably requested by the Broker in connection with the
performance of this Agreement and to confirm compliance with
applicable law.
(iv) The Company's Board has approved this Agreement.
(v) This Agreement constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws
affecting the enforceability of creditors' rights and general
principles of equity, and as rights to indemnity hereunder may be
limited by applicable law.
(b) The Broker represents, warrants and covenants to the Company as follows:
(i) The Broker has implemented reasonable policies and procedures,
taking into consideration the nature of the Broker's business, to
ensure that individuals making investment decisions will not
violate the laws prohibiting trading on the basis of Material
Nonpublic Information. These policies and procedures include
those that restrict any purchase or sale, or causing any purchase
or sale, of any security as to which the Broker has Material
Nonpublic Information, as well as those that prevent such
individuals from becoming aware of or in possession of such
Material Nonpublic Information.
(ii) In connection with all purchases of Shares, the Broker shall deliver
to the Company by facsimile or electronic mail, no later than the
close of business on the date such transaction is effected, all
information relating to each share purchase.
(iii) This Agreement constitutes the legal, valid and binding obligation
of the Broker enforceable against the Broker in accordance with its
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws affecting the enforceability
of creditors' rights and general principles of equity, and as rights
to indemnity hereunder may be limited by applicable law.
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SECTION 3. AMENDMENTS. This Agreement (including the Initial Trading
Instructions) may not be amended by the parties hereto, except as follows: The
parties hereto may amend the provisions of this Agreement (including the Initial
Trading Instructions), provided that at the time of such amendment, the Company
was not in possession of or aware of Material Nonpublic Information. Any
modification by the Company will be made in good faith and not as part of a
scheme to evade the prohibitions of Rule 10b5-1. The amended Agreement or
Initial Trading Instructions, as the case may be, shall not take effect until 30
days after the amendment is adopted. During the 30 day period between the
adoption date of the amendment and the effective date of the amendments, the
unmodified Agreement or Initial Trading Instructions, as the case may be, will
remain in effect.
SECTION 4. TERMINATION. This Agreement shall terminate upon the earlier to occur
of the following:
(a) The close of business on March 30, 2008; or
(b) The Broker purchases the maximum number of Shares allowable under the
Initial Trading Instructions, as may be amended as provided in Section 3
hereof; or
(c) The Agreement is terminated by either party immediately upon receipt of
written notice to the other party; provided, however, that with respect to
any termination by the Company pursuant to this Section 4(c) at the time
of such termination, the Company was not in possession of or aware of
Material Nonpublic Information and such termination was made in good faith
and not as part of a scheme to evade the prohibitions of Rule 10b5-1; or
(d) Any purchase effected pursuant to this Agreement that violates (or in the
opinion of counsel to the Company or the Broker is likely to violate)
Section 16 of the 1934 Act, any other provision of the Federal securities
laws or regulations adopted by the U.S. Securities and Exchange Commission
thereunder, or any other applicable Federal or State law or regulation; or
(e) The Company materially breaches its obligations under this Agreement; or
(f) The Company enters into a contract that prevents or materially restricts
purchases by the Company under this Agreement.
SECTION 5. INDEMNIFICATION AND LIMITATION ON LIABILITY; NO TAX, ACCOUNTING
OR LEGAL ADVICE.
(a) The Company agrees to indemnify and hold harmless the Broker (and its
directors, officers, employees and affiliates) from and against all
claims, liabilities, losses, damages and expenses (including reasonable
attorneys' fees and costs) arising out of or attributable to: (i) any
material breach by the Company of this Agreement (including the
Company's representations and warranties), (ii) any violation by the
Company of applicable laws or regulations and (iii) any action taken by
the Broker in good faith and without negligence pursuant to this
Agreement. This indemnification will survive the termination of this
Agreement.
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(b) Notwithstanding any other provision herein, the Broker will not be
liable to the Company for: (i) special, indirect, punitive, exemplary,
or consequential damages, or incidental losses or damages of any kind,
including but not limited to lost profits, lost savings, and loss of
use of facility or equipment, regardless of whether arising from breach
of contract, warranty, tort, strict liability or otherwise, and even if
advised of the possibility of such losses or damages or if such losses
or damages could have been reasonably foreseen, or (ii) any failure to
perform or for 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."
(c) The Company acknowledges and agrees that the Broker has not provided the
Company with any tax, accounting or legal advice with respect to this
Agreement.
SECTION 6. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York, without regard to such
State's conflict of laws rules.
SECTION 7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes any previous or contemporaneous agreements, understandings, proposals
or promises with respect thereto, whether written or oral.
SECTION 8. ASSIGNMENT. This Agreement and each party's rights and obligations
hereunder may not be assigned or delegated without the written permission of the
other party and shall inure to the benefit of each party's successors and
permitted assigns, whether by merger, consolidation or otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date first above written.
SL INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
MUTUAL SECURITIES, INC.
By: /s/ Xxxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxxx X. Xxxx
Title: President
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