Exh. 99.1
SALES PLAN
(OFFICERS AND DIRECTORS)
THIS SALES PLAN, dated as of November 29, 2004, is an instruction from
Stephen L. Mueller ("Seller") to BNY Investment Center Inc. ("Broker")
concerning the sale of securities of Encysive Pharmaceuticals Inc. (the
"Issuer").
WHEREAS, Seller desires to establish this Sales Plan to sell shares of
common stock, par value $.005, of the Issuer (the "Stock");
WHEREAS, Seller desires to engage Broker to effect sales of the Stock
in accordance with this Sales Plan; and
WHEREAS, Seller intends that this Sales Plan constitute a trading plan
that complies with the requirements of Rule 10b5-1 under the Securities
Exchange Act of 1934, as amended ("Rule 10b5-1").
NOW, THEREFORE, Seller hereby instructs Broker as follows:
1. Broker shall effect sales (each a "Sale") of an aggregate of up to
14,817 shares of the Stock pursuant to the terms and conditions set forth
herein and in any customer agreement or other accounts documents between Seller
and Broker. Subject to any restrictions set forth below, Broker shall effect
each Sale in accordance with its ordinary practice. If any day specified below
for a Sale is not a day on which the Stock is trading, then such specified day
shall be deemed to fall on the next succeeding day during the term of this
Sales Plan on which the Stock is trading.
2. The express specifications of the Sale are as follows:
ON MARCH 4, 2005, 1,083 SHARES SHALL BE SOLD AT MARKET PRICE.
ON MARCH 14, 2005, 1,270 SHARES SHALL BE SOLD AT MARKET PRICE.
ON MARCH 21, 2005, 12,464 SHARES SHALL BE SOLD AT MARKET PRICE UNLESS
MARKET PRICE IS LESS THAN $15.00 IN WHICH CASE 3,400 SHARES SHALL BE SOLD.
NO SHARES SHALL BE SOLD IF SHARES ARE NOT VESTED IN ACCORDANCE WITH
THEIR TERMS ON THE DATE OF THE SALE.
3. This Sales Plan shall become effective on the date hereof and shall
terminate on the earliest to occur of (a) March 31, 2005, (b) the date on which
all shares of Stock to be sold pursuant hereto have been sold, or (c) upon
receipt by Broker of written notice (i) that Seller is no longer an insider of
Issuer or (ii) Seller has died. Prior to termination in accordance with the
preceding sentence, either party may terminate this Sales Plan at any time on
written notice to the other, except that Seller shall not terminate this Sales
Plan, or alter or seek to deviate from it, if doing so would cause Seller to
fall outside the safe harbor of Rule 10b5-1 or to violate any
contract, agreement, law, rule, regulation or policy applicable to Seller,
including without limitation the Issuer's insider trading policies.
4. Seller understands that Broker may not be able to effect a Sale due
to a market disruption, a legal, regulatory or contractual restriction, or
other cause outside Broker's control. If any Sale cannot be executed as
specified in this Sales Plan due to any of the foregoing, such Sale shall be
cancelled and shall not be effected pursuant to this Sales Plan.
5. Seller represents and warrants that (a) Seller is on the date
hereof able to sell the Stock in accordance with the Issuer's insider trading
policies and is not subject to any legal, regulatory or contractual restriction
or undertaking that would prevent it from conducting Sales in accordance with
this Sales Plan, (b) Seller is not aware of material, nonpublic information
with respect to the Issuer or any securities of the Issuer (including the
Stock), (c) Seller is entering into this Sales Plan in good faith in order to
permit the orderly disposition of a portion of Seller's holdings of the Stock,
and not as part of a plan or scheme to evade the prohibitions of any contract,
agreement, law, rule, regulation or policy applicable to Seller, including
without limitation Rule 10b5-1, and (d) Seller has obtained the approval of the
Issuer's Chief Executive Officer or Chief Financial Officer to enter into this
Sales Plan. Seller shall immediately notify Broker if Seller becomes subject to
any restriction or undertaking (legal, regulatory, contractual or otherwise)
that would prevent Broker from making Sales pursuant to this Sales Plan, and,
in such a case, Seller and Broker shall cooperate to amend or otherwise revise
this Sales Plan to take account of such restriction or undertaking (provided
that neither party shall be obligated to take any action that would be
inconsistent with any requirements binding upon it).
6. It is the intent of the parties that, where applicable, this Sales
Plan shall be interpreted to comply with the requirements of Rule 10b5-1.
7. Seller authorizes Broker and its agents and representatives to make
any inquiry of the Issuer, the Issuer's transfer agent or counsel that Broker
may deem advisable in connection with any Sale or the Sales Plan.
8. Seller agrees to make all filings, if any, required of him/her in
connection with each Sale. Upon request of Seller, Broker shall provide to
Seller all information in Broker's possession necessary for Seller to make such
filings.
9. This Sales Plan may only be modified or amended in writing signed
by both parties; provided, however, that Broker may amend any provision of this
Sales Plan without the consent of or notice to Seller if necessary for legal or
regulatory reasons. In no event shall this Sales Plan be amended or modified if
a violation of Rule 10b5-1 would result.
10. This Sales Plan represents the entire agreement between the
parties with respect to Seller's attempt to comply with Rule 10b5-1, supersedes
any previous or contemporaneous agreements, understandings, proposals or
promises with respect thereto (whether written or oral), and shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflict of laws principles.
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11. Seller shall indemnify, defend and hold harmless Broker and any of
its employees or agents from and against any and all claims, proceedings,
causes of action, liabilities, damages, losses or expenses (including
reasonable attorneys fees and costs) arising from or relating to this Sales
Plan and Broker's execution of transactions hereunder. Broker shall have no
liability with respect to whether this Sales Plan provides any protection to
Seller pursuant to Rule 10b5-1 or otherwise complies with Rule 10b5-1. Seller
understands and agrees that Broker makes no representation, warranty or
covenant concerning the validity of this Sales Plan under Rule 10b5-1. Seller
accepts full responsibility for the compliance of this Sales Plan and any
actions taken pursuant hereto with Rule 10b5-1.
IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of
the date first written above.
SELLER:
Signature: /s/ Stephen L. Mueller
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Printed Name: Stephen L. Mueller
BNY INVESTMENT CENTER INC.
By: /s/ Ted Abenstein
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Name: Ted Abenstein
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Title: AVP
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