UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
BBX Capital
Corporation
(Name of Issuer)
Class A Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
05540P 100
(CUSIP
Number)
BFC Financial Corporation
401 East Las Olas Boulevard, Suite 800
Fort Lauderdale, Florida 33301
Attn: Alan B. Levan, Chairman of the Board, President and Chief Executive Officer
(954) 940-4900
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications)
September 19, 2014
(Date of Event which Requires Filing of this Statement)
If the filing person has
previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for
other parties to whom copies are to be sent.
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The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be
deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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| 1. |
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Names of
Reporting Persons BFC Financial Corporation (I.R.S. No. 59-2022148) |
| 2. |
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Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ¨ (b) x |
| 3. |
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SEC Use Only
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| 4. |
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Source of Funds (See Instructions)
N/A |
| 5. |
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Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨ |
| 6. |
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Citizenship or Place of
Organization Florida |
| Number of
Shares Beneficially
Owned by Each
Reporting Person
With |
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7. |
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Sole Voting Power
8,328,356(1) |
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8. |
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Shared Voting Power
42 |
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9. |
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Sole Dispositive Power
8,328,356(1) |
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10. |
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Shared Dispositive Power
42 |
| 11. |
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Aggregate Amount Beneficially Owned by Each Reporting Person
8,328,398(1) |
| 12. |
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Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ¨ |
| 13. |
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Percent of Class Represented by Amount
in Row (11) 51.1% |
| 14. |
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Type of Reporting Person (See
Instructions) HC |
| (1) |
Includes 195,045 shares of BBX Capital’s Class B Common Stock owned by BFC. These shares are convertible at any time in BFC’s discretion on a share-for-share basis into BBX Capital’s Class A Common Stock.
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Amendment No. 8 to Schedule 13D
This Amendment No. 8 to Schedule 13D amends, solely to the extent expressly set forth herein, the Schedule 13D of BFC Financial
Corporation (“BFC”) filed on August 28, 2008, as previously amended, relating to the Class A Common Stock, par value $0.01 per share, of BBX Capital Corporation, a Florida corporation (“BBX Capital”).
BBX Capital’s principal executive offices are located at 401 East Las Olas Boulevard, Suite 800, Fort Lauderdale, Florida 33301.
Item 4: Purpose of Transaction
On
September 19, 2014, the following executive officers of BFC and BBX Capital entered into Rule 10b5-1 Trading Plans for the purpose of selling certain shares of BBX Capital’s Class A Common Stock owned by the executive officers:
(i) Alan B. Levan, Chairman, Chief Executive Officer and President of BFC, and Chairman and Chief Executive Officer of BBX Capital; (ii) Jarett S. Levan, Executive Vice President and director of BFC and BBX Capital, and son of
Mr. Alan Levan; and (iii) Seth M. Wise, Executive Vice President and director of BFC, and Executive Vice President of BBX Capital, as Trustee of the Seth M. Wise Revocable Trust (the “Seth Wise Trust”). These plans provide for
the sale by Mr. Alan Levan, Mr. Jarett Levan and the Seth Wise Trust of 12,500 shares 20,000 shares and 7,000 shares, respectively, of BBX Capital’s Class A Common Stock. In addition, John E. Abdo, who serves as Vice Chairman of
BFC and BBX Capital and collectively with Mr. Alan Levan may be deemed to control BFC and BBX Capital by virtue of their collective ownership interest in BFC’s Class A Common Stock and Class B Common Stock, previously entered into the
Rule 10b5-1 Trading Plan contemplated by Amendment No. 6 to this Schedule 13D. Such plan was entered into by Mr. Abdo as Trustee of the John E. Abdo Trust and provides for the sale of up to 120,000 shares of BBX Capital’s Class A
Common Stock. Mr. Alan Levan and Mr. Abdo have indicated that their respective Rule 10b5-1 Trading Plan were entered into for tax, estate planning and diversification purposes. Each of Mr. Jarett Levan and Mr. Wise has indicated
that he entered into his Rule 10b5-1 Trading Plan for liquidity purposes. Each of the Rule 10b5-1 Trading Plans provide for the sale of the applicable shares during a specified term and at sales prices at least equal to a minimum specified price per
share. It is intended that the Rule 10b5-1 Trading Plans will allow the executives to effect sales of BBX Capital’s Class A Common Stock in compliance with applicable securities laws and regulations, including Rule 10b5-1 of the Securities
Exchange Act of 1934, as amended, and Rule 144 of the Securities Act of 1933, as amended (the “Securities Act”), BBX Capital’s insider trading policies, and the rules, policies and procedures of the markets where the transactions are
placed. A form of the Rule 10b5-1 Trading Plans is filed as Exhibit 1 hereto (without the pricing information and other exhibits to the plans).
Item 5: Interest in Securities of the Issuer
BFC and, to the best of its knowledge, its executive officers, directors and control persons, currently beneficially own shares of BBX
Capital’s Class A Common Stock as set forth in the following table. Unless otherwise noted, each beneficial owner has sole voting and investment power over the shares beneficially owned.
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Class A Common Stock
Ownership |
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Percent of
Class A Common Stock(1) |
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| BFC Financial Corporation(2) |
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8,328,398 |
(3) |
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51.1 |
%(4) |
| Alan B. Levan(2)(5) |
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8,438,156 |
(3)(6)(7) |
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51.8 |
%(4) |
| John E. Abdo(2) |
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8,590,183 |
(3)(7) |
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52.7 |
%(4) |
| Jarett Levan(5) |
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84,293 |
(7) |
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* |
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| Seth M. Wise |
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62,062 |
(7) |
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* |
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| William Nicholson |
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2,394 |
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| (1) |
Based on 15,810,588 shares of BBX Capital’s Class A Common Stock outstanding as of September 19, 2014 and: (a) the 195,045 shares of BBX Capital’s Class B Common Stock owned by BFC, as described
in footnote 3 below, with respect to the ownership percentage of BFC, Alan Levan and John Abdo; and (b) the shares of BBX Capital’s Class A Common Stock which may be acquired within 60 days after September 19, 2014 pursuant to the
exercise of stock options and upon the vesting of restricted stock awards, as described in footnote 7 below, with respect to the ownership percentage of the persons named in such footnote. Pursuant to the instructions to Item 403 of Regulation
S-K, the total number of outstanding shares of BBX Capital’s Class A Common Stock for purposes of calculating the beneficial ownership interest percentage of each person does not include 995,198 shares of BBX Capital’s Class A
Common Stock, which represents approximately 6% of the total number of outstanding shares of such stock, underlying restricted stock awards as to which BBX Capital’s compensation committee has sole voting power and the award recipients do not
have voting or investment power. |
| (2) |
BFC may be deemed to be controlled by Alan Levan and John Abdo, who collectively may be deemed to have an aggregate beneficial ownership of shares of BFC’s Class A Common Stock and Class B Common Stock
representing approximately 71% of the total voting power of BFC. As a result, the shares of BBX Capital’s Class A Common Stock and Class B Common Stock owned by BFC may be deemed to be beneficially owned by each of Alan Levan and John Abdo
and are reflected in the table above with respect to each of their beneficial holdings. |
| (3) |
Includes: (a) 20 shares of BBX Capital’s Class A Common Stock held through Eden Services, Inc., a direct wholly-owned subsidiary of BFC; (b) 22 shares of BBX Capital’s Class A Common Stock
held through ODI Program Partnership LLLP, the general partner of which is an indirect wholly-owned subsidiary of BFC; and (d) 195,045 shares of BBX Capital’s Class B Common Stock held directly by BFC which are convertible at any time in
BFC’s discretion on a share-for-share basis into BBX Capital’s Class A Common Stock. |
| (4) |
BFC, Alan Levan and John Abdo may be deemed to beneficially own shares of BBX Capital’s Class A Common Stock and Class B Common Stock representing approximately 72%, 73% and 73%, respectively, of the total
voting power of BBX Capital. |
| (5) |
Alan Levan is the father of Jarett Levan. |
| (6) |
In addition to the shares of BBX Capital’s Class A Common Stock and Class B Common Stock which Alan Levan may be deemed to beneficially own through BFC, Alan Levan’s beneficial holdings in BBX
Capital’s Class A Common Stock also include 657 shares held by Levan Partners LLC. |
| (7) |
Includes beneficial ownership of the following number of shares of BBX Capital’s Class A Common Stock which may be acquired within 60 days after September 19, 2014 pursuant to the exercise of stock options:
Mr. Alan Levan — 2,400 shares; Mr. Abdo — 1,600 shares; and Mr. Jarett Levan —600 shares. Also includes beneficial ownership of the following number of shares of BBX Capital’s Class A Common Stock underlying
restricted stock awards which are scheduled to vest within 60 days after September 19, 2014 (without any deduction for shares which may be withheld by BBX Capital upon vesting of the restricted stock awards to satisfy BBX Capital’s tax
withholding obligations with respect to the vesting of such awards): Mr. Alan Levan – 94,201 shares; Mr. Abdo – 94,201 shares; Mr. Jarett Levan – 47,100 shares; and Mr. Wise - 47,100 shares. |
Except as described below, neither BFC, nor, to the best of its knowledge, any of its executive officers, directors or control persons, has
effected any transaction in any shares of BBX Capital’s Class A Common Stock during the past 60 days. On September 17, 2014, John E. Abdo, indirectly through
the John E. Abdo Trust, sold 100 shares of BBX Capital’s Class A Common Stock at $18.75 per share, 100 shares of BBX Capital’s Class A Common Stock at $18.76 per share and 117
shares of BBX Capital’s Class A Common Stock at $18.77 per share. These sales were open market sales made under the Rule 10b5-1 Trading Plan of the John E. Abdo Trust described in Item 4 above.
Item 6: Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The descriptions of the material terms of the Rule 10b5-1 Trading Plans set forth in Item 4 are incorporated herein by reference.
Item 7: Material to be Filed as Exhibits
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| Exhibit 1 |
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Form of Rule 10b5-1 Trading Plan (excluding the pricing information and other exhibits) |
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
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| October 1, 2014 |
| Date |
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| BFC Financial Corporation |
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| /s/ Alan B. Levan |
| Signature |
Alan B. Levan/Chairman, Chief Executive Officer and President
Name/Title
Exhibit 1
Form of
Rule 10b5-1 Trading Plan
This Trading Plan (the “Trading Plan”) is entered into on March 18, 2014 (“Seller’s Adoption Date”) between
(“Seller) and UBS Financial Services Inc. (“UBSFS”) for the purpose of selling, in accordance with Rule
10b5-1(c)(1) of the Securities Exchange Act of 1934 as amended (the “Exchange Act”), shares of Class A common stock of BBX Capital Corporation (“Issuer”), BBX (Ticker) listed on Exhibit A (“Stock”), which may
include shares that the Seller has the right to acquire under outstanding stock options (“the Options”); shares that are acquired by Seller pursuant to the Issuer’s employee stock purchase plan (the “ESPP Stock”); shares
that are acquired upon vesting of outstanding restricted stock units/awards from Issuer (“RSUs/RSAs”); and shares that are acquired upon vesting of outstanding performance share awards from Issuer (“PSAs”).
Seller and UBSFS agree as follows:
| /. |
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”)
and the other provisions of this Trading Plan as set forth below. UBSFS’s obligations under this Trading Plan will not take effect until UBSFS (by countersigning) approves and accepts this Trading Plan. |
| 2. |
Fees/Commissions. Seller shall pay UBSFS $ 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: |
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(a) |
Seller is not aware of any material nonpublic information concerning Issuer or any securities of Issuer; |
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(b) |
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; |
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(c) |
Seller has informed Issuer of this Trading Plan, has furnished Issuer with a copy of this Trading Plan, and has determined that this Trading Plan is consistent with Issuer’s insider trading policy;
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(d) |
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; |
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(e) |
Seller is not subject to any legal, regulatory or contractual restriction or undertaking that would be violated or breached by UBSFS conducting sales in accordance with this Trading Plan; |
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(f) |
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 under the Securities Act of 1933, as amended (the “Securities Act”), if applicable; and |
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(g) |
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: |
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(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 the 10b5-1 Group of UBSFS. |
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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 Trading Plan as listed in Exhibit A. If the amount of Stock to be sold 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 are 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.
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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 Issuer’s stock.
Notice to UBSFS. 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).
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.
Compliance with Applicable Laws and
Required Exchange Act Filings. Seller shall comply with all laws, rules and regulations applicable or related to Seller with respect to this Trading Plan and the sale of Stock hereunder, and Seller shall make all filings required under
Sections 13 and 16 of the Exchange Act in connection with this Trading Plan in a timely manner, which at a minimum shall be the applicable time period prescribed under the Exchange Act.
No Influence. After his/her execution of this Trading Plan, Seller shall not attempt to exercise, any influence over how, when or
whether to effect sales of Stock pursuant to this Trading Plan.
Stock Non-Marginable. The Stock is not marginable and may
not be used by Seller as collateral for any purpose.
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 all 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.
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(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 the 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. |
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(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: |
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(i) |
UBSFS has determined in good faith 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) selling Stock is impracticable as a result of a material adverse change in the financial markets or in the market activity of the Stock, or as a result of an ‘act of God’ as described in paragraph 10(b)(i) (b) below 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 1 of Exhibit A; |
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(ii) |
This Trading Plan is suspended in accordance with paragraph 7 below; or |
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(iii) |
This Trading Plan is terminated in accordance with paragraph 8 below. |
| 5. |
Rule 144 and Rule 145. With respect to sales of Stock subject to Rule 144 or Rule 145 under the Securities Act, Seller and UBSFS agree to comply with the following provisions: |
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(a) |
Agreements by Seller Regarding Rule 144 and Rule 145. |
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(i) |
Seller agrees not to take, and agrees to use commercially reasonable efforts 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. |
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(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 reasonably request. Seller hereby grants UBSFS a power
of attorney to complete and file on behalf of Seller any Forms 144 as required by applicable law, rule or regulation in order to sell Stock pursuant to this Trading Plan in accordance with Rule 144. |
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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 this Trading Plan at such times and in such
numbers as UBSFS shall reasonably request. |
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(iv) |
Seller agrees to promptly notify the 10b5-1 Group of UBSFS if there is any change in Seller’s employment, affiliate or non-affiliate status. |
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(b) |
Agreements by UBSFS Regarding Rule 144 and Rule 145. |
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(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. |
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(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. |
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(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. |
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(a) |
Seller’s Representations and Warranties. |
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(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 |
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(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. |
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(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 reasonably 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 Stock. |
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(i) |
Pursuant to an appropriately and fully completed Stock Option Exercise Notice received from Seller, UBSFS shall exercise Options necessary to effect sales of underlying Stock in the manner specified in Exhibit A.
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(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. |
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(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. |
3
Suspension. Sales under this Trading Plan shall be suspended as follows:
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(a) |
Promptly after the date on which UBSFS receives notice from Seller or Issuer of legal, contractual or regulatory restrictions applicable to Seller or Seller’s affiliates that would be violated by UBSFS selling
Stock under this Trading Plan (such notice merely stating that there is a restriction applicable to Seller without specifying the reasons for the 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 the restrictions 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 the beginning or the end of suspension date.
For the avoidance of doubt, this paragraph is meant to allow, but not obligate, Issuer to provide a suspension notice in accordance with this paragraph. |
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(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. |
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“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 “Underwrite”) requires Seller to agree to restrict Seller’s ability to effect sales pursuant to this Trading Plan. |
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“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 of 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. |
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“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. |
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For the avoidance of doubt, this paragraph is meant to allow, but not obligate, Issuer to provide a suspension notice in accordance with this paragraph. |
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(c) |
In the event that the 10b5-1 Group of UBSFS 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 Trading Plan. In such case, UBSFS shall promptly notify Seller of the suspension of sales under this Trading Plan. |
Termination. This Trading Plan will terminate on the earliest to occur of the following:
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(a) |
at the close of trading on ; |
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(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; |
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(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; |
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(d) |
promptly after the date UBSFS is notified of the death of Seller; |
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(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 Stock underlying 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 shares. |
| 9. |
Confidentiality. UBSFS will maintain the confidentiality of this Plan and will not, without the advance written permission of
Seller, disclose the specific terms of this Trading 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 (including the Issuer);
(ii) to respond to any inquiry from the Securities and Exchange Commission, FINRA, NYSE, NASDAQ, or any other self-regulatory organization, any State securities regulator, or any other governmental or quasi-governmental authority regarding the
Trading Plan; or (iii) to any other person or entity to the extent such disclosure is required by law |
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or regulation, or by a subpoena issued by a court of competent jurisdiction; provided, however, that in the case of clauses (i), (ii) and (iii) the disclosure is limited to the minimum
that UBSFS in good faith believes to be required under the circumstances and UBSFS shall use commercially reasonable efforts to ensure that the information so disclosed is acorded confidential treatment. |
| 10. |
Indemnification: Limitation of Liability. |
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(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, reasonable 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 compliance (by act or omission) with this Trading
Plan, other than as set forth in Section10(a)(ii) below, (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
related to or in connection with this Trading Plan, except, in each instance, to the extent caused by UBSFS’s breach of this Trading Plan, gross negligence or willful misconduct. This indemnification shall survive termination of this Trading
Plan. |
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(ii) |
UBSFS agrees to indemnify and hold harmless Seller from and against all Losses arising out of or attributable to UBSFS’s breach of this Trading Plan or its gross negligence or willful misconduct in connection with
this Trading Plan. This indemnification shall survive termination of this Trading Plan. |
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(b) |
Limitation of Liability. |
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(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”. |
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(ii) |
Notwithstanding any other provision hereof, UBSFS shall not be liable to Seller for (A) the exercise of discretionary authority or discretionary pursuant to 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). |
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(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 201-352-4728. |
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(b) |
All notices to Seller under this Trading Plan shall be provided by mail to the address below: |
401 East Las Olas Blvd. Suite
800
Fort Lauderdale, FL
33301
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(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. |
| 13. |
Amendments and Modifications. This Trading Plan and the Exhibits hereto may be amended by Seller only upon the written consent of each of Seller and UBSFS and receipt by UBSFS of the following documents,
each dated as of the date of such amendment: |
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(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
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(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 Exhibit A, (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. |
SELLER REPRESENTS AND WARRANTS THAT THEY WILL RETAIN A COPY OF THIS
TRADING PLAN AFTER EXECUTING/DATING IT BELOW AND UNTIL ITS TERMINATION.
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.
NOTICE: Signature date above must be the same as Seller’s Adoption Date as defined in the opening section of this Trading
Plan.
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| ACCEPTED BY: UBS FINANCIAL SERVICES INC. |
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