UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report:
June 20, 2014
ENSERVCO CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 0-9494 | 84-0811316 |
| State of | Commission File | IRS Employer |
| Incorporation | Number | Identification No. |
501 South Cherry St., Ste. 320
Denver, CO 80246
Address of principal executive offices
303-333-3678
Telephone number, including
Area code
_____________________________
Former name or former address if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 20, 2014, Enservco Corporation (the “Company”) held its annual Board of Directors meeting in New York, New York. At the meeting, the Board of Directors determined that, consistent with the actions and recommendations of the stockholders: (i) Michael D. Herman, Steven P. Oppenheim, Gerard P. Laheney, and Rick D. Kasch will serve as the Company’s directors; (ii) EKS&H, LLLP will serve as the Company’s independent registered accounting firm for the fiscal year ending December 31, 2014; and (iii) the Company’s certificate of incorporation will be amended to change the quorum requirement for stockholders’ meetings to one-third of the outstanding shares entitled to vote at the meeting.
The Board of Directors also reviewed and approved the Audit Committee Charter, determined that it complies with the rules that apply to the Company, and appointed the independent directors—being Messrs. Laheney and Oppenheim—to the Audit Committee, with Mr. Oppenheim the chairman.
The Company’s Board of Directors also elected the following executive officers of the Company:
| § | Michael D. Herman – Chairman of the Board of Directors |
| § | Rick D. Kasch – President, Chief Executive Officer, and Principal Executive Officer |
| § | Robert J. Devers – Chief Financial Officer, Principal Financial Officer, Treasurer, and Secretary |
| § | Austin Peitz – Vice President of Field Operations |
| § | Jess Edens – Controller |
| § | Amanda Dalbey – Assistant Secretary |
In electing the officers as noted above, the Board of Directors determined that the offices of Controller, Secretary, and Assistant Secretary and not executive officers as that term is used in Item 401(b) of SEC Regulation S-K, and are not “officers” as that term is defined in SEC Rule 16a-1(f) in that they do not have policy-making functions and, consequently, are not subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the annual meeting of the stockholders on June 17, 2014, the stockholders voted to amend the Company’s certificate of incorporation to change the quorum requirement for stockholders’ meetings to one-third of the outstanding shares entitled to vote at the meeting. The Company prepared a certificate of amendment to the Company’s certificate of incorporation, which was approved by the Board at the annual meeting of the Board of Directors and filed with the Delaware Secretary of State on June 24, 2014. The certificate of amendment is attached hereto as Exhibit 3.01.
Item 8.01 Other Events.
At the annual meeting of the Board of Directors, the board reviewed and reaffirmed several Company policies without amendment, including the Amended Code of Business Conduct and Ethics and Whistleblower Policy, the Amended Insider Trading Policy, and the Related Party Transaction Policy. The Board of Directors reviewed and approved amendments to the Company’s Policy on Trading Blackout Periods; Benefit Plans; and Section 16 Reporting, which altered who the policy applies to among other minor changes. Each of the Company’s policies mentioned above are available for review on the Company’s website at: http://irdirect.net/ENSV/corporate_governance.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| 3.01 | Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of the Company. Filed herewith. | |
| 14.01 | Amended Code of Business Conduct and Ethics and Whistleblower Policy (1) | |
| 14.02 | Amended Insider Trading Policy. Filed herewith. | |
| 14.03 | Related Party Transactions Policy (1) | |
| 14.04 | Audit Committee Charter (1) | |
| 14.05 | Amended Policy on Blackout Periods; Benefit Plans; and Section 16 Reporting. Filed herewith. |
(1) Incorporated by reference from the Company’s Current Report on Form 8-K dated May 29, 2013, and filed on May 31, 2013.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on the 25 th day of June 2014.
| Enservco Corporation | |
| By: /s/ Rick D. Kasch | |
| Rick D. Kasch, President |
Exhibit 3.01
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT OF
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Enservco Corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Enservco Corporation resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Company’s stockholders shall be asked to amend Article VI, Section 2 of the Company’s Second Amended and Restated Certificate of Incorporation to reduce the quorum requirement for annual and special meetings of stockholders from one-half to onethird. Article VI, Section 2 of the Company’s Second Amended and Restated Certificate of Incorporation shall be amended to as read as follows:
Meetings of Stockholders. Meeting of the stockholders of the Corporation shall be held at such place within or without Delaware and at such times as may be prescribed in the By-laws of the Corporation. Special meetings of the stockholders of the Corporation may be called by the president of the Corporation, the Board of Directors, or by the record holders or holder of at least ten percent (10%) of all shares entitled to vote at the meeting. At any meeting of the stockholders, except to the extent otherwise provided by law, the quorum shall consist of one-third of the shares entitled to vote at the meeting; and, if a quorum is present, the affirmative vote of a majority of shares represented by the meeting and entitled to vote thereat shall be the act of the stockholders unless the vote of a greater number is required by law.
SECOND: That thereafter an annual meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this ____ day of June, 2014.
| ENSERVCO CORPORATION | |
| By: | |
| Rick D. Kasch, President | |
Exhibit 14.02
Enservco Corporation
( formerly known as Aspen Exploration Corporation )
INSIDER TRADING POLICY
July 27, 2010, as amended May 29, 2013
PURPOSES
To assure compliance with the laws prohibiting “insider trading” in Company Securities, including Derivative Securities, and to avoid the appearance of impropriety and resulting damage to the Company’s reputation for integrity and ethical conduct.
Please contact the Company’s Compliance Officer with any questions about this Insider Trading Policy or its application to any situation involving a purchase, sale, Trade of, or other transaction involving, Company Securities or Derivative Securities. If there is ever a question as to whether it is appropriate for an individual to buy, sell, Trade, or enter into any transaction involving, Company Securities, including Derivative Securities, it is better to seek advice and limit exposure to potential insider trading allegations to protect the Company and the individual.
DEFINITIONS
10b5-1 Plan – A written plan, including “blind trusts”, permitting individuals named therein to Trade Company Securities or Derivative Securities, in the limited circumstances, and subject to the terms and conditions, specified therein, that (a) is approved in advance in accordance with the terms of this Insider Trading Policy, and (b) complies with Rule 10b5-1 under the Securities Exchange Act of 1934 (“Rule 10b5-1”) and the guidelines described below under “10b5-1 Plans.”
Company – Enservco Corporation and its subsidiaries.
Compliance Officer – The person named as the “Compliance Officer” in the Company’s currently-effective Code of Business Conduct and Ethics and Whistleblower Policy.
Company Securities – Equity or debt securities of the Company.
Derivative Securities – Put or call options or other derivative securities, the value and characteristics of which, depend, in part or whole, on the value and characteristics of Company Securities. Derivative Securities do not include Short Sales or other hedging transactions, which are specifically prohibited.
Employees – Employees of the Company.
Material Nonpublic Information – Information concerning the Company that is both (a) material (meaning the average investor would want to know such information before deciding whether to buy, sell or hold Company Securities or Derivative Securities (i.e., such information could affect the market price of Company Securities or Derivative Securities)) and (b) nonpublic (meaning the information has not been disclosed in the Company’s filings with the SEC or in a press release issued by the Company that has been broadly disseminated to the investing public). Information is not considered public until the second business day after such disclosure in an SEC filing or press release. See “Examples of Material Nonpublic Information” below.
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SEC – The U.S. Securities and Exchange Commission.
Senior Employees – Officers of the Company.
Short Sales – Sales of Company Securities not owned by the seller, or, if owned, not delivered immediately against such sale.
Trade or Trading – Buying or selling, or placing an order to buy or sell securities either now or in the future, including through cashless exercise of stock options where shares are sold to pay the exercise price. The withholding of stock by the Company for Employee income tax liability incurred in connection with the vesting of restricted stock is not included in this definition of “Trading”.
POLICY
Trading in Company Securities or Derivative Securities
All Employees :
| · | Insider Trading Prohibition . May not purchase or sell Company Securities or Derivative Securities while in possession of Material Nonpublic Information except pursuant to a properly approved and executed 10b5-1 Plan or as otherwise provided in this Insider Trading Policy. If such Material Nonpublic Information is disclosed to the public, Employees may not Trade in Company Securities or Derivative Securities until the second business day after such disclosure (i.e., the second day after the applicable SEC filing or press release). This prohibition includes: |
| — | purchases or sales of Company Securities or Derivative Securities by members of the Employee’s household or by family members who do not live in such household but whose transactions in Company Securities or Derivative Securities are influenced or controlled by such Employee |
| — | purchases or sales of Company Securities or Derivative Securities by entities controlled by the Employee (corporations, partnerships, trusts, etc.) |
The prohibition on Trading while in possession of Material Nonpublic Information continues for as long as any information you have is both material and non-public – and can continue even after the Employee’s employment or engagement with the Company has terminated.
| · | Tipping Prohibition . May not disclose Material Nonpublic Information to other Employees (except on a need to know basis), family members or any outside party. This is to assure that no Employee becomes a “tipper,” liable for the Trading of his “tippee” under federal securities laws. |
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| · | Family Members . Must instruct household members and any family members who do not live in the Employee’s household but whose transactions in Company Securities or Derivative Securities are influenced or controlled by Employee to observe the above rules and take all reasonable precautions to assure such observance. |
| · | Company Securities . Are encouraged to pre-clear any transactions in Company Securities or entry into a 10b5-1 Plan involving Company Securities with the Compliance Officer of the Company. Requests for pre-clearance should be submitted at least two business days in advance of the proposed trade date. Requests for pre-clearance should be submitted at least two business days in advance of the proposed trade date. |
| · | Derivative Securities . Must pre-clear any transactions involving Derivative Securities or entry into a 10b5-1 Plan involving Derivative Securities with the Compliance Officer of the Company. Requests for pre-clearance should be submitted at least three weeks in advance of the proposed transaction. The Compliance Officer may decline any such request in their sole discretion. Transactions in Derivative Securities may allow a person to own securities without the full risks and rewards of ownership and, as result, a holder of Derivative Securities may no longer have the same objectives as other holders of Company Securities. Accordingly, approval of these transactions will occur only when they do not involve this risk. |
| · | Gifts . The restrictions on Trading in Company Securities and Derivative Securities set out in this Insider Trading Policy may apply equally to gifts of Company Securities and Derivative Securities, so employees should pre-clear proposed gifts with the Compliance Officer before the gift is made. |
| · | Restricted Transactions . May not engage in Short Sales. Transactions in certain Derivative Securities may in some instances constitute a Short Sale. Section 16(c) of the Securities Exchange Act of 1934 prohibits officers and directors of the Company from engaging in Short Sales. May not keep Company Securities or Derivative Securities in a margin account and may not use Company Securities or Derivative Securities as collateral for a loan. |
Senior Employees and Members of the Board of Directors:
Are subject to all of the restrictions set forth above , as modified by the following provisions:
| · | Company Securities . Must pre-clear any transactions in Company Securities or entry into a 10b5-1 Plan involving Company Securities with the Compliance Officer of the Company. Requests for pre-clearance must be submitted at least two business days in advance of the proposed trade date. |
| · | Derivative Securities . Must pre-clear any transactions in Derivative Securities or entry into a 10b5-1 Plan involving Derivative Securities with the Audit Committee of the Company’s Board of Directors. Requests for pre-clearance must be submitted at least three weeks in advance of the proposed transaction, and must include all relevant details regarding the transaction. Transactions in Derivative Securities may allow a person to own securities without the full risks and rewards of ownership and, as result, a holder of Derivative Securities may no longer have the same objectives as other holders of Company Securities. Accordingly, approval of these transactions will occur only when they do not involve this risk. |
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Insider Trading Policy |
| · | Material Nonpublic Information . Are encouraged to Trade only in periods of relative stability for the Company, even when they do not know of Material Nonpublic Information, and should limit their transactions in Company Securities or Derivative Securities to periods shortly after all Material Nonpublic Information has been disclosed in an SEC filing or press release (but not before the second business day following such disclosure). |
| · | Margin Accounts . May not establish a margin account for the purposes of buying, carrying or selling Company Securities or Derivative Securities, except under special circumstances approved in writing by the Compliance Officer of the Company. |
Special Circumstances and Restrictions
At times, the Company may determine that it is prudent to restrict Trading by certain employees or groups. Special notifications will be given.
Transactions Under Company Plans
Stock Option Exercises . This Insider Trading Policy does not apply to the exercise of an employee stock option. The policy does apply, however, to all sales of Company stock upon the exercise of a stock option, regardless of whether such sale is for the purpose of generating cash needed to pay the exercise price or income tax liability. A cashless exercise is not considered a sale of Company stock for these purposes.
Vesting of Restricted Stock . This Insider Trading Policy does not apply to the withholding of stock by the Company for Employee income tax liability incurred in connection with the vesting of restricted stock
401(k) Plan . This Insider Trading Policy does not apply to purchases of Company stock through the Company’s 401(k) plan resulting from periodic contributions of money to the 401(k) plan pursuant to an Employee’s payroll deduction. The Policy does apply, however, to certain elections Employees may make under the 401(k) plan, including elections which affect the acquisition or disposition of Company stock.
10b5-1 Plans . Trades in Company Securities that are executed pursuant to a duly adopted 10b5-1 Plan are exempt from the prohibitions contained in this Insider Trading Policy.
In general , Rule 10b5-l provides an affirmative defense from insider trading liability under the federal securities laws for trading plans that meet certain requirements. A 10b5-l Plan generally may not be adopted during a blackout period and may only be adopted when the person adopting the plan is unaware of Material Nonpublic Information. Once the 10b5-1 Plan is adopted, the participant must not exercise any influence over the amount of securities to be Traded thereunder, the price at which they are to be Traded or the date of the trade(s). The 10b5-1 Plan must either specify (including by formula) the amount, pricing and timing of transactions in advance of any trades or delegate discretion on those matters to an independent third party.
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Consequences
Securities market surveillance techniques are very sophisticated and the chance that federal authorities will detect and prosecute even apparently minor insider trading violations is a significant one. The consequences of an insider trading violation can be severe:
| · | Failure by any Employee to abide by this Insider Trading Policy will result in sanctions, which may include termination of employment. |
| · | Any sanctions imposed upon or liabilities incurred by an Employee for insider trading will be the sole responsibility of the Employee. The Company will not cover or indemnify the Employee for these costs. |
| · | Trading on Material Nonpublic Information is a crime subject to fines of up to $5 million and jail terms of up to twenty years for individuals. In addition, the SEC may seek civil penalties of up to three times the profits made or losses avoided from insider trading. Inside traders must also disgorge any profits made and may be subject to civil liability to private plaintiffs. |
| · | Employers and other controlling persons are also at risk under federal law and may be fined if they recklessly fail to take preventive steps to control insider trading. |
Examples of Material Nonpublic Information
The following is a list of common types of information that might (depending on the circumstances) be considered “material” and thus considered inside information if it is not generally known or available to the public:
| · | Earnings information or other operating data for the Company or a company doing business with the Company, including revenue results, sales data, or other revenue projections |
| · | A pending or potential merger, joint venture, acquisition, disposition, tender offer or other significant changes in assets by the Company or a company doing business with the Company |
| · | Material legal actions filed or threatened against the Company or material developments with respect to any such actions |
| · | A material change, either up or down, in the Company’s business, financial condition or operating results, or in the business, financial condition or operating results of a company doing business with the Company |
| · | Pending or potential changes in dividend policy, or proposals for a stock split or the offering of additional securities |
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| · | A change in management |
| · | News about a major contract, lease or cancellation of an existing contract or lease |
| · | Significant developments regarding customers including the addition of new customers or loss of existing customers. |
| · | Significant personnel or operations changes |
| · | Financial liquidity problems |
| · | Changes in the Company’s auditors or a notification from its auditors that the Company may no longer rely on the auditors’ report |
| · | Major financing transactions |
| · | Material write-offs or restructurings |
| · | Anything that is likely to affect the market price of Company Securities, either negatively or positively |
Both positive and negative information can be material. Because Trading that receives scrutiny will be evaluated after the fact with the benefit of hindsight, questions concerning the materiality of particular information should be resolved in favor of materiality, and Trading should be avoided. This list is provided for informational purposes only and is not intended to be exhaustive.
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Exhibit 14.05
ENSERVCO CORPORATION
POLICY ON
TRADING BLACKOUT PERIODS;
BENEFIT PLANS; AND
SECTION 16 REPORTING
This Policy was unanimously adopted by the Board of Directors of Enservco Corporation at a meeting held on June 20, 2014. It applies to the directors, certain executive officers, and certain accounting personnel of the Company.
INTRODUCTION
Enservco Corporation (the “Company”) has adopted this Policy on Trading Blackout Periods, Benefit Plans, and Section 16 Reporting to apply to each director, the Company’s president, chief executive officer, chief operating officer, treasurer, chief financial officer, any vice president, and certain other officers that may be designated as such by resolution of the Board of Directors, and accounting personnel who are involved in the preparation of an upcoming Form 10-Q or 10-K.other Company personnel who may have knowledge of potentially material financial information (“Insiders”) and to guide the Insiders with regard to their trading activity in stock of the Company and stock of the vendors and suppliers of the Company.
The Company reserves the right to amend or rescind this Policy or any portion of it at any time and to adopt different policies and procedures at any time. The Company (by Board action) also reserves the right to determine that a person otherwise within the definition of “Insider” is truly not an Insider. This Policy must be strictly followed. Your attention is also drawn to Enservco’s Insider Trading Policy which should, where the context permits, be read and complied with in conjunction with this Policy.
Persons Covered
This Policy on Trading Blackout Periods, Benefit Plans and Section 16 Reporting (this “Policy”) applies to all Insiders (defined above). In this Policy, references to “you” include:
| · | Your family members who reside with you; |
| · | Anyone else who lives in your household; |
| · | Any family members who do not live in your household but whose transactions in securities are directed by you or are subject to your influence or control (such as parents or children who consult with you before they trade in securities); |
| · | Any entity (corporation, partnership, LLC, trust) which you control through ownership or management; |
| · | Any person to whom you have disclosed material, nonpublic information; and |
| · | Any person acting on your behalf or on behalf of any individual listed above. |
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You are responsible for making sure that the purchase or sale of any security covered by this Policy by any such person complies with this Policy.
Securities Covered
Although it is most likely that the “material, nonpublic information” you possess will relate to the common stock of the Company, the Company may from time to time issue other securities that are publicly traded (collectively, the “Covered Securities”) and, therefore, subject to this Policy. In addition, this Policy applies to purchases and sales of the securities of other entities, including customers or suppliers of the Company and entities with which the Company may be negotiating major transactions (such as an acquisition, investment or sale of assets). Information that is not material to the Company may nevertheless be material to those entities.
“BLACKOUT” PERIODS
A “blackout” period is a period during which you may not execute transactions in Company securities, whether such transactions are buying or selling Company securities. Please bear in mind that even if a blackout period is not in effect, at no time may you trade in Company securities if you are aware of material, nonpublic information about the Company. For example, if the Company releases its quarterly financial results and you are aware of other material, nonpublic information not disclosed in the financial results, you may not trade in Company securities.
Quarterly Financial Results Blackout Periods
You may not buy or sell Company securities at any time from the last day of each fiscal quarter or fiscal year of the Company through to and including the two full business day period following the public release of the financial results for such fiscal quarter or year (for example, by means of a press release, a publicly accessible conference call or a governmental filing).
For example, the third quarter of 2014 will end on September 30, 2014. If the Company issues its financial results for the third quarter of 2014 on November 14, 2014, you may not purchase or sell the Company's common stock between September 30, 2014 and November 19, 2014. In accordance with this Policy, the Company will from time to time advise interested parties of the expected timing of its financial results.
Event-Specific Blackout Periods
The Company reserves the right to impose trading blackout periods from time to time when, in the judgment of the Company, a blackout period is warranted. A blackout period may be imposed for any reason, including the existence of nonpublic, material information about the Company, the anticipated issuance of interim financial results guidance or other material public announcements. The existence of an event-specific blackout period may not be announced, or may be announced only to those who are aware of the transaction or event giving rise to the blackout period. If you are made aware of the existence of an event-specific blackout period, you should not disclose the existence of such blackout period to any other person. Individuals that are subject to event-specific blackout periods will be contacted when these periods are instituted from time to time.
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Definition of Material Information and Nonpublic Information
Material Information . This policy makes reference to “material information.” In this policy, “material information” is any information relating to the business and affairs of the Company if it is likely that a reasonable investor would consider such information to be important in making a decision to buy, sell or hold a Covered Security or where the information results in, or would reasonably be expected to result in, a significant change in the market price or value of any of the Covered Securities. Material information can be positive or negative and can relate to virtually any aspect of the Company’s business or to any type of security, debt or equity.
Examples
of material information include (but are not limited to) facts concerning:
| (a) | A significant acquisition, disposition or merger, a new issue of securities or significant change in capital structure; |
| (b) | A significant change in financing arrangements of the Company; |
| (c) | A significant change in expected financial results in the near future (such as in the next fiscal quarter); |
| (d) | Significant operational events or incidents; |
| (e) | Changes in ownership that may affect control of the Company; |
| (f) | Significant changes in management or the Board of Directors of the Company; |
| (g) |
Changes in the nature the Company’s business and major litigation
developments; or
|
| (h) | Any substantial change in industry circumstances or competitive conditions that could significantly affect the Company’s financial results or prospects for growth. |
Moreover, material information does not have to be related to the Company’s business. For example, the contents of a forthcoming newspaper column or investment newsletter that is expected to affect the market price of the Company’s securities can be material.
Nonpublic Information . Material information is “nonpublic” if it has not been generally disclosed. Information is considered to have been generally disclosed if: (i) the information has been disseminated in a manner calculated to effectively reach the marketplace; and (ii) public investors have been given a reasonable amount of time to analyze the information. For the purposes of this policy, information will be considered public; i.e. no longer nonpublic, after information has been generally disclosed by means of a broadly disseminated press release and the trading has closed on the first full trading day following such press release.
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If you are unsure whether the information that you possess is material or nonpublic, the President, the Chief Executive Officer, the Chief Financial Officer, or the Compliance Officer should be consulted before trading in any securities of the Company.
Rule 10b5-1 Plans
Persons subject to this policy may trade in Company securities pursuant to a trading plan or arrangement satisfying the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934 and the requirements of this policy (a “Trading Plan”). The Trading Plan must be documented, bona fide and established at a time when the person does not possess inside information and a trading blackout is not in place. The Trading Plan must also specify the price, amount and date of trades or provide a formula or other mechanism to be followed. In addition, (i) a Trading Plan must provide that trades under the plan will not commence until at least 30 days following adoption of the plan and (ii) no person may have in place more than one Trading Plan at a time.
It is the individual’s responsibility to ensure that the Trading Plan meets all legal requirements. The individual must provide a copy of the Trading Plan to the Company. Transactions pursuant to a pre-approved Trading Plan may take place during blackout periods. Insiders are not required to obtain pre-clearance of Trading Plan transactions even when pre-clearance would otherwise be required under this policy. However, following a trade, the details of the trade, including the number of shares traded and the price(s) paid or received, must be promptly reported to the Chief Financial Officer.
The Company reserves the right to require that additional provisions be included in a Trading Plan to ensure compliance with Rule 10b5-1 but the Company has no responsibility for compliance with Rule 10b5-1; that is the individual’s responsibility. The Company shall not impose requirements regarding specific trades or trading instructions. The Company may make public disclosures regarding the existence or terms of a Trading Plan if the Company deems it necessary or desirable to do so. The Company also reserves the right to require that transactions under a Trading Plan be suspended during periods when the Company believes that legal, contractual or regulatory restrictions could prohibit such transactions or make them undesirable. These might include periods during which officers and directors have agreed with underwriters that they will not sell Company securities for specified periods before and after a public offering, or periods in proximity to a public offering during which Regulation M prohibits purchases by affiliates of the Company.
Those individuals who wish to adopt a Trading Plan are encouraged to consult with their financial, tax and legal advisors to help ensure that a Trading Plan meets their objectives.
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Hardship Exceptions
If you have an unexpected and urgent need to sell Company securities in order to generate cash you may, in appropriate circumstances, be permitted to sell Company securities during a blackout period. Hardship exceptions may be granted only by the Company's Chief Executive Officer and must be requested at least two business days in advance of the proposed transaction.
TRANSACTIONS UNDER COMPANY BENEFIT PLANS
The U.S. insider trading laws also restrict your ability to engage in certain transactions under the Company's benefit plans, as described below.
Stock Option Exercises
You may exercise stock options for cash. However, you may not sell the underlying shares of stock and you may not engage in a cashless exercise of a stock option through a broker (because this entails selling a portion of the underlying stock to cover the costs of exercise) while you possess material, nonpublic information.
SECTION 16 REPORTING
Directors and officers of the Company must file periodic reports regarding their ownership of Company securities pursuant to Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are subject to disgorgement of “short-swing” profits pursuant to Section 16(b) of the Exchange Act. Violations of or failure to comply with these requirements can result in SEC enforcement action.
Directors and officers must pre-clear all transactions in Company securities with the Company's Chief Executive Officer prior to executing such transactions. The Company will notify employees or officers if they are subject to Section 16.
POST-TERMINATION TRANSACTIONS
This Policy continues to apply to your transactions in Company securities even after you have terminated your employment with or services to the Company and/or its subsidiaries and affiliated companies. If you are aware of material, nonpublic information when your employment or service relationship terminates, you may not trade in Company securities until that information has been publicly released.
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