Attached files
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8-K - FORM 8-K - DITECH HOLDING Corp | c09582e8vk.htm |
Exhibit 99.1
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
Rule 10b5-1 Sales Plan and Client Representations
I, [client name], as of the date of the last signature below, establish this Sales Plan
(Plan) in order to sell shares of the common stock (Shares) of Walter Investment Management
Corp. (Issuer) pursuant to the requirements of Rule 10b5-1 under the Securities Exchange Act of
1934, as amended (Exchange Act). I request that Merrill Lynch, Pierce, Fenner & Smith
Incorporated (Merrill Lynch) execute the Plan as follows:
1. | Sales Instructions for Sales/Exercises Starting on [Insert Date] and ending on
[Insert Date], |
1.1 For securities other than employee stock options, you are authorized to execute the
transactions indicated by the checked box below:
o | Sell _____
[number] of Shares every_____ [insert time period day,
week, month, quarter, day/date of month, etc.)], provided the price per share is at or
above $_____ [dollar amount] on the principal exchange or market on which the
Shares are traded (Exchange). |
o | Sell Shares pursuant to the following table: |
Sale Price | ||||||
Limit or | ||||||
Start Date | End Date | Share Quantity | Market | |||
Total |
o | Implement Carryforward provision. (Optional) |
||
Under this provision, any Shares not sold as specified above because the parameters
(e.g., specified sale price) under the Plan were not met, will carry
forward to future _____ [time periods] until sold. |
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
o | Sell Shares that I plan to acquire in connection with the future vesting
of restricted stock or restricted stock unit awards pursuant to the following table: |
Date of | Date of | Number of Shares | Sale Period | Sale Period | Limit Price | |||||||
Grant | Vesting | Vesting | Start Date | End Date | Share Quantity | or Market | ||||||
Sell sufficient Shares to cover tax obligations, brokerage commissions and fees |
Market | |||||||||||
Total: | TBD |
1.2 For employee stock options, you are authorized to exercise my options and execute
the transactions in respect of the underlying Shares indicated by the checked box below:
o | Exercise _____ [number] stock options and sell the underlying
Shares every_____ [insert time period (day, week, month, quarter, day/date of
month, etc.)], provided the price per underlying Share is at or above
$_____ [dollar amount] on the Exchange. |
o | Exercise stock options pursuant to the following table: |
Number of Options to | ||||||||||
be exercised and | ||||||||||
underlying Shares to | Sale Price - | |||||||||
be sold under the | Grant No. Grant | Limit or | ||||||||
Start Date | End Date | Plan | Date | Exercise Price | Market | |||||
o | Implement Carryforward provision. |
||
Under this provision, any options not exercised and underlying Shares not sold as
specified above because the parameters (e.g., specified sale price) under
the Plan were not met, will carry forward to future _____ [time periods] until
the options are exercised and the underlying Shares are sold. |
For purposes of this section 1.2:
1. | Merrill Lynch will not exercise any stock option unless its exercise
price is less than the market price of the underlying Shares. |
2
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
2. | Merrill Lynch first will exercise those stock options {select one}: |
o | with the earliest expiration date, |
||
o | with the lowest exercise price, or |
||
o | as indicated in the above table. |
3. | To the extent that the exercise price and any withholding tax relating to the
exercise of a stock option and sale of the underlying Shares under this plan are to be
paid from the proceeds of such exercise and sale, Merrill Lynch will deduct from the
proceeds of each stock option exercised and the underlying Shares sold the sum of the
exercise price and any withholding tax. The resulting amount will be then remitted to
the Issuer. |
4. | After remitting payment to the Issuer for the applicable exercise price and
withholding tax pursuant to 1.2.3, supra, any commissions and/or fees due and payable
to Merrill Lynch shall be deducted from the proceeds of such exercise and sale and
paid to Merrill Lynch. |
5. | Check which of the following apply: |
o | The Issuer of the Shares has executed a servicing
agreement with Merrill Lynch for stock option services for the Issuer and its
optionees. |
o | The Issuer of the Shares has not executed a
servicing agreement with Merrill Lynch for stock option services for the
Issuer and its optionees and therefore I hereby agree to and authorize the
following: |
In connection with the exercise of my employee stock options under the Plan I authorize and
instruct the Issuer to register or cause its agent(s) to register, the Shares to be issued upon the
exercise of my stock option(s) in the name of Merrill Lynch (or its designated nominee), which is
my agent and nominee (or in the event that is not permissible, in my name).
I also authorize and instruct the Issuer to deliver, or cause its agent(s) to deliver within
three business days, the Shares issued pursuant to the stock option exercise to Merrill Lynch in
exchange for funds from Merrill Lynch representing the exercise price (plus any applicable taxes).
Subject to my right to terminate the plan up[on written notice to Merrill Lynch as provided in
Section 8.6, I cannot revoke or rescind this authorization and instruction under any circumstance
while the Plan is in effect. I hereby grant a security interest to Merrill Lynch in the Shares to
be issued pursuant to the exercise of my employee stock
option(s). This security interest will not terminate even if the securities are delivered to me
contrary to these instructions.
3
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
If I am selling all or some of the Shares to be issued pursuant to the exercise of my employee
stock option, I agree that I am responsible for any and all dividends, rights or payments of any
kind that are or may become payable to any purchaser of the Shares prior to the registration of the
Shares in the name of Merrill Lynch and, if I am holding all or some of these Shares, I agree that
I shall not be entitled to such dividends, rights or payments prior to the issuance of the Shares.
I agree to pay or deliver to Merrill Lynch upon demand, any and all funds, securities, dividends or
distributions due to it, if, for any reason, the Shares to be issued pursuant to the exercise of my
employee stock option are not promptly delivered to Merrill Lynch.
2. | Execution, Average Pricing and Pro Rata Allocation of Sales |
I agree and acknowledge that:
2.1 If my order to sell Shares pursuant to the Plan, whether market or limit, is handled by a
Merrill Lynch trading desk, my order shall be handled as not held. A not held or working
order permits a Merrill Lynch trader to use reasonable brokerage judgment, exercising price and
time discretion, as to when to execute the order. This provision shall only apply to orders
handled by a Merrill Lynch trading desk.
2.2 Merrill Lynch may execute my order: (a) in a single transaction or multiple transactions
during the course of the trading day, or (b) it may aggregate my order with other orders for other
sellers of the Issuers securities that may or may not have been accepted pursuant to a Rule 10b5-1
sales plan, execute them as a block or in multiple smaller transactions, and allocate an average
price to each seller.
2.3 When orders are aggregated, Merrill Lynch shall allocate the proceeds of shares sold pro
rata among the sellers, based on the ratio of (x) the shares to be sold and (y) the sum of the
proceeds of all shares sold, and Merrill Lynch will provide each seller an average price
confirmation that identifies the amount of securities sold for the applicable seller together with
an average price for sales.
3. | Stock Splits/Reincorporation/Reorganizations |
3.1 In the event of a stock split or reverse stock split, the quantity and price at which the
Shares are to be sold will be adjusted proportionately.
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Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
3.2 In the event of a stock dividend or spin-off, the quantity and price at which the Shares
are to be sold will be adjusted as instructed by the Issuer. Any adjustment shall
only become effective upon receipt by Merrill Lynch of written notice from Issuer as to the
occurrence of the dividend or spin-off, as well as specific instructions as to the adjustment to
the quantity and price at which Shares are to be sold.
3.3 In the event of a reincorporation or other corporate reorganization resulting in an
automatic share-for-share exchange of new shares of the Issuer for the Shares subject to the Plan,
then the new shares will automatically replace the Shares originally specified in the Plan.
4. | Account Credit |
In the event any scheduled sale of Shares or exercise of stock options and sale of the
underlying Shares is not executed as provided for in Section 1 (or Section 7, if applicable) of the
Plan, upon Merrill Lynchs knowledge of such event, Merrill Lynch shall exercise stock options (if
applicable) and sell Shares that should have been sold as soon as reasonably practicable, and will
credit my account as if such sale had been executed as instructed in Section 1 (or Section 7, if
applicable).
5. | Compliance with Rule 144 and Rule 145 |
5.1 I understand and agree that if I am an affiliate or control person for purposes of Rule
144 under the Securities Act of 1933, as amended (Securities Act), or if the Shares subject to
the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale
under Rule 145, then all sales of Shares under the Plan will be made in accordance with the
applicable provisions of Rule 144.
5.2 I authorize Merrill Lynch to complete and file on my behalf any Forms 144 (pre-signed by
me) necessary to affect sales under the Plan.
5.3 If appropriate, I understand and agree that, upon my prompt signature and delivery to
Merrill Lynch of Form 144, Merrill Lynch will either: (a) make one Form 144 filing at the
beginning of each three-month period commencing with the date of the first sale made in connection
with the Plan or (b) file Form 144 for each sale made in connection with the Plan.
5.4 A Form 144 shall be filed for all applicable sales pursuant to this Plan and shall
indicate that the sales are made pursuant to this Plan.
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Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
5.5 Merrill Lynch will conduct sales pursuant to Rule 144 or Rule 145 if appropriate,
including applying Rule 144 volume limitations as if the sales under the Plan were the only sales
subject to the volume limitations.
5.6 I agree not to take any action or to cause any other person or entity to take any action
that would require me to aggregate sales of Shares pursuant to Rule 144; and not to take any action
that would cause the sales of Shares under the Plan not to comply with Rule 144 or Rule 145.
6. | Representations, Warranties and Covenants |
In consideration of Merrill Lynch accepting orders to sell securities under this
Plan, I make the following representations, warranties and covenants:
6.1 I have established the Plan in good faith, in compliance with the requirements of Rule
10b5-1, and at a time when I was not aware of material nonpublic information about the Shares or
the Issuer.
6.2 I have consulted with legal counsel and other advisors in connection with my decision to
enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1.
I have not received or relied on any representations by Merrill Lynch regarding the Plans
compliance with Rule 10b5-1.
6.3 I have provided, or caused the Issuer to provide, Merrill Lynch with a certificate
completed by the Issuer, substantially in the form of Annex A hereto (Issuer Certificate).
6.4 I own all Shares that are subject to the Plan free and clear of liens or encumbrances of
any kind, and/or I will own all such Shares free and clear of liens or encumbrances of any kind at
the time of their Sale as provided for in this Plan. I will own any Shares acquired under employee
stock options exercised pursuant to the Plan free and clear of liens or encumbrances, except for
any liens or encumbrances in favor of Merrill Lynch. There are no restrictions imposed on me, the
Shares or the Issuer that would prevent Merrill Lynch or me from complying with the Plan.
6.5 While the Plan is in effect, except as provided in the Plan, I will not engage in
offsetting or hedging transactions in violation of Rule10b5-1; and I will notify Merrill Lynch in
advance of any sales or purchases of, or derivative transactions on, any of the Issuers securities
initiated by me.
6
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
6.6 While the Plan is in effect, I will not disclose to any employee of Merrill Lynch,
including my Private Wealth Advisor or Financial Advisor, any material nonpublic information
concerning the Shares or the Issuer.
6.7 While the Plan is in effect, I will not attempt to exercise any influence over how, when
or whether to effect sales of Shares.
6.8 The Plan does not violate the Issuers insider trading policies.
6.9 I agree to make or cause to be made all filings required under the Securities Act and/or
the Exchange Act, including under Rule 144, Section 13 and Section 16 of the Exchange Act, and any
other filings necessary.
6.10 As to delivery requirements:
1. | For securities other than stock options, prior to the date of
execution of any sales specified under the Plan, I agree to have delivered
into the custody of Merrill Lynch the total amount of the Shares that may be
sold pursuant to the Plan, together with all transfer documents and other
authorizations required for Merrill Lynch to effect settlement of sales of
such Shares on my behalf. |
2. | For employee stock options, the number of options granted to
me by the Issuer that are vested, exercisable and registered is equal to or
greater than the number of options to be exercised and the underlying Shares
to be sold under the Plan. I agree to provide to Merrill Lynch all necessary
documentation, properly executed, to affect the timely exercise of the stock
options and the subsequent sale and settlement of the Shares. |
3. | I agree that Merrill Lynchs obligation to execute sales
under the Plan is conditioned on the satisfaction of the foregoing delivery
requirements. |
6.11 I agree to inform Merrill Lynch as soon as possible of any of the following:
1. | any subsequent restrictions imposed on me due to changes in
the securities (or other) laws or of any contractual restrictions imposed on
the Issuer that would prevent Merrill Lynch or me from complying with the
Plan, and |
7
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
2. | the occurrence of any event as set forth in the Plan that
would cause the Plan to be suspended or terminated under Section 7 or Section
8 of the Plan, respectively. |
7. | Suspension |
7.1 Sales pursuant to Section 1 above shall be suspended where:
1. | trading of the Shares on the Exchange is suspended for any
reason; |
2. | there is insufficient demand for any or all of the Shares at
or above the specified price (e.g., the specified price met but all
Shares could not be sold at or above the specified price); |
3. | Merrill Lynch, in its sole discretion, determines that there
is a legal, regulatory or contractual reason why it cannot affect a sale of
Shares; |
4. | Merrill Lynch is notified in writing by the Issuer that a
sale of Shares should not be effected due to legal, regulatory or contractual
restrictions applicable to the Issuer or to me (including without limitation,
Regulation M); |
5. | Merrill Lynch is notified in writing by the Issuer that (i)
in the case of Shares being sold pursuant to a registration statement filed
under the Securities Act, the registration statement has terminated, been
suspended, expired or is otherwise unavailable; or (ii) a public announcement
of a public offering of securities by the Issuer has been made. |
7.2 Merrill Lynch will resume sales in accordance with the Plan as promptly as practicable
after (a) Merrill Lynch receives notice in writing from the Issuer that it may resume sales in
accordance with Section 1 of the Plan in the case of the occurrence of an Event described in 7.1.4
or 7.1.5 above; or (b) Merrill Lynch determines, in its sole discretion, that it may resume sales
in accordance with the Plan in the case of the occurrence of an Event described in 7.1.1, 7.1.2 or
7.1.3 above.
7.3 Shares allocated under the Plan for sale during a period that has elapsed due to a
suspension under this Section will be carried forward to be sold with the next amount of shares to
be sold in accordance with Section 1 of the Plan. In the event Section 1 of the Plan provides for
an amount of Shares to be sold during a given period pursuant to a limit order, Shares that would
otherwise be permitted to be sold during that period, shall, upon lapse of the suspension,
nonetheless be carried forward to be sold with the next amount of Shares to be sold in accordance
with Section 1 of the Plan.
8
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
7.4 Merrill Lynch is released from all liability in connection with any suspension of sales,
including, but not limited to, liability for the expiration of stock options or loss of market
value.
8. | Termination |
The Plan shall terminate on the earliest to occur of the following:
8.1 the termination date listed above;
8.2 the completion of all sales contemplated in Section 1 of the Plan;
8.3 my or Merrill Lynchs reasonable determination that: (a) the Plan does not comply with
Rule 10b5-1 or other applicable securities laws; (b) I have not complied with the Plan, Rule
10b5-1 or other applicable securities laws; or (c) I have made misstatements in my representations
or warranties in Section 6, above;
8.4 receipt by Merrill Lynch of written notice from the Issuer or me of: (a) the filing of a
bankruptcy petition by the Issuer; (b) the closing of a merger, recapitalization, acquisition,
tender or exchange offer, or other business combination or reorganization resulting in the exchange
or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or (c)
the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities
and/or preferred stock (whether in whole or in part);
8.5 receipt by Merrill Lynch of written notice of my death or legal incapacity;
8.6 receipt by Merrill Lynch of written notice of termination from me.
9. | Indemnification |
9.1 I agree to indemnify and hold harmless Merrill Lynch 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 claim, arising out of or attributable to Merrill Lynchs actions taken in
compliance with the Plan, any breach by me of the Plan, or any violation by me of applicable
federal or state laws or regulations. This indemnification shall survive termination of the Plan.
9
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
9.2 Merrill Lynch agrees to indemnify and hold me harmless 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, arising
out of or attributable to Merrill Lynchs gross negligence or willful misconduct in connection with
the Plan.
10. | Modification and Amendment |
The Plan, including the Sales Instruction, may be modified or amended only upon (a) the
written agreement of me and Merrill Lynch; (b) the receipt by Merrill Lynch of written confirmation
signed by me to the effect that the representations, warranties and covenants contained in Section
6 above, are true as of the date of such written confirmation; and (c) the receipt by Merrill Lynch
of a new Issuer Certificate or written confirmation signed by the Issuer that the representations,
warranties and covenants contained in the original Issuer Certificate are true as of the date of
such written confirmation.
11. | Counterparts |
The Plan may be signed in counterparts, each of which will be an original.
12. | Entire Agreement |
The Plan, including the representations, warranties and covenants in Section 6,
constitutes the entire agreement between me and Merrill Lynch regarding the Plan and supersedes any
prior agreements or understandings regarding the Plan.
13. | Notices |
All notices given by the parties under the Plan will be as follows:
If to Merrill Lynch:
[Insert name of FA] and Administrative Manager
Merrill Lynch, Pierce, Fenner & Smith Incorporated
[branch office address]
[Insert name of FA] and Administrative Manager
Merrill Lynch, Pierce, Fenner & Smith Incorporated
[branch office address]
If to me:
Client address on file
Client address on file
10
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
14. | Officer & Director Equity Service |
If the seller is subject to the reporting requirements of Section 16 of the Exchange Act,
complete the following to have transaction information for open market transactions under the Plan
forwarded to a designated third party.
14.1 I authorize Merrill Lynch to transmit transaction information via facsimile and/or email
regarding open market transactions under the Plan to:
Name:
|
Name : | |||||||||
Title:
|
Title: | |||||||||
Organization:
|
Organization: | |||||||||
Fax:
|
Fax: | |||||||||
Tel:
|
Tel: | |||||||||
e-mail:
|
e-mail: | |||||||||
14.2 I understand that reasonable efforts will be made to transmit transaction information for
open market transactions under the Plan (purchase or sale) by the close of business on the day of
the purchase or sale, but no later than the close of business on the first trading day following
the purchase or sale.
14.3 I acknowledge that Merrill Lynch (a) has no obligation to confirm receipt of any email or
faxed information by the designated contact and (b) has no responsibility or liability for filing a
Form 4 with the SEC or for compliance with Section 16 of the Exchange Act.
14.4 If any of the above contact information changes, or I would like to terminate this
authorization, I will promptly notify Merrill Lynch in writing. I further authorize Merrill Lynch
to transmit transaction information to a third party service provider who will make the information
available to my designated representative(s) listed above.
11
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
15. | Governing Law |
This Plan will be governed by and construed in accordance with the laws of the State of New
York.
This Rule 10b5-1 Sales Plan and Client Representations is established and agreed to as of the
date of the last signature below.
By: | ||||
Name: | ||||
Date: | ||||
Acknowledged and Agreed
this ____ day of
____________________, 2010: Merrill Lynch, Pierce, Fenner & Smith Incorporated |
||||
By: |
||||
Title: |
12
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
Annex A Issuer Certificate
This Annex A may not be amended except in accordance with the Plan.
1. [Name
of Issuer] _____ (the Issuer) certifies that it has approved, and retained a
copy of, the Sales Plan dated _____, 2010 (the Plan)
between _____ [client name]
(Seller) and Merrill Lynch, Pierce, Fenner & Smith Incorporated (Merrill Lynch) relating to the
common stock of the Issuer (the Shares).
2. The Plan is consistent with Issuers insider trading policies, and, to the best of Issuers
knowledge, there are no legal, contractual or regulatory restrictions applicable to Seller as of
the date of this representation that would prohibit Seller from entering into the Plan or affecting
any sale of Shares pursuant to the Plan.
3. While the Plan is effective, Issuer agrees to provide notice as soon as practicable to
Merrill Lynch in the event of:
a. | the selling of the Shares pursuant to a registration
statement or the termination, expiration, suspension or unavailability of the
registration statement; |
b. | a public announcement of a public offering of securities by
the Issuer; |
c. | a legal, regulatory or contractual restriction applicable to
Seller or Sellers affiliates, including without limitation, under Regulation
M, that would prohibit any sale pursuant to the Plan (other than any such
restriction relating to Sellers possession or alleged possession of material
nonpublic information about the Issuer or its securities) (the notice merely
stating that a restriction applies to Seller without specifying the reasons
for the restriction); |
d. | the filing of a bankruptcy petition by the Issuer; |
e. | the closing of a merger, recapitalization, acquisition,
tender or exchange offer, or other business combination or reorganization
resulting in the exchange or conversion of the Shares of the Issuer into
_____shares of a company other than the Issuer; or |
f. | the conversion of the Shares into rights to receive fixed
amounts of cash or into debt securities and/or preferred stock (whether in
whole or in part). |
13
Issuer Name:
Client Name:
Symbol:
Start Date:
End Date:
Client Name:
Symbol:
Start Date:
End Date:
The notice shall be provided by facsimile to [_____], Merrill Lynch, at [fax. no.
_____] and shall indicate the anticipated duration of the restriction but shall not include
any other information about the nature of the restriction or its applicability to Seller. In any
event, the Issuer shall not communicate any material nonpublic information about Issuer or its
securities to Merrill Lynch with respect to the Plan.
4. To avoid delays in connection with transfers of stock certificates and settlement of
transactions under the Plan, and in acknowledgment of Merrill Lynchs agreement in Section 5 of the
Plan that sales of Shares under the Plan will be effected in compliance with Rule 144, the Issuer
agrees that it will, immediately upon Sellers directing delivery of Shares into an account at
Merrill Lynch in the name of and for the benefit of Seller, instruct its transfer agent to process
the transfer of Shares and issue a new certificate to Seller that does not bear any legend or
statement restricting its transferability to a buyer.
5. If the Plan covers options, Issuer acknowledges that Seller has authorized Merrill Lynch to
serve as Sellers agent and attorney-in-fact to exercise certain stock options to purchase the
Shares from time to time pursuant to the Plan. Issuer agrees to accept, acknowledge and affect the
exercise of such stock options by Merrill Lynch and the delivery of the underlying Shares to
Merrill Lynch, free of any legend or statement restricting their transferability to a buyer. By
signing below and upon delivery of funds representing the exercise price (plus any applicable
taxes), the Issuer, for itself and its agents, acknowledges: (1) the security interest of Merrill
Lynch in the underlying Shares and (2) that prior to delivery to Merrill Lynch, the Issuer holds
the underlying Shares as bailee for Merrill Lynch.
Dated:
By: |
||||
[Name and title of authorized officer] |
14