Insider Trading Policy
This Insider Trading Policy provides guidelines to all personnel, including employees, directors and officers of Marrone Bio Innovations, Inc. (the "Company"), with respect to transactions involving the Company's securities and the handling of confidential information about the Company and the companies with which it does business. In the discretion of the Corporate Compliance Officer (as defined below), the Insider Trading Policy may also apply to consultants and contractors to the Company.
For purposes of this Insider Trading Policy, the Company's securities include common stock, options to purchase common stock and any other securities the Company may issue from time to time, such as preferred stock, warrants and convertible debentures. The Company's securities also include derivative securities relating to the Company's stock, even if not issued by the Company, such as exchange-traded options. For purposes of this Insider Trading Policy, references to "trading" and "transactions" includes, among other things, (i) purchases and sales of Company securities in public markets, (ii) sales of Company securities obtained through the exercise of employee stock options granted by the Company and (iii) using Company securities to secure a loan.
It is the policy of the Company to comply with all insider trading laws and regulations.
Employees, officers and directors of the Company may create, use or have access to confidential or material information which is not generally available to the investing public (such information is referred to in this Insider Trading Policy as "material non-public information," as explained in more detail below). Each individual has an important ethical and legal obligation to maintain the confidentiality of such information and not to engage in any transactions in the Company's securities while in possession of material non-public information. Each individual and the Company may be subject to severe civil and criminal penalties as a result of unauthorized disclosure of or trading in the Company's securities while in possession of material non-public information.
The Chief Financial Officer or, in his or her absence, the Chief Executive Officer, or, in his or her absence, such other person designated by the Company's Board of Directors (hereinafter, the "Corporate Compliance Officer") is responsible for the administration of this Insider Trading Policy.
Prohibition. Every employee, officer and director of the Company is prohibited from: (a) buying or selling the Company's securities while in possession of material non-public information; (b) communicating such information to others except those who "need to know" based on their doing business with or for the Company; (c) recommending the purchase or sale of the Company's securities while in the possession of material information that has not been publicly disclosed by the Company; or (d) assisting anyone engaged in any of the above activities. This prohibition also applies to information about, and the securities of, other companies with which the Company has a relationship through which an employee, officer or director may acquire the material non-public information of that company.
There are no exceptions to this Insider Trading Policy other than those described in paragraph 12 below. Engaging in transactions in the Company's securities that are otherwise necessary for personal reasons, such as personal financial commitments, is still prohibited if you possess material non-public information. Even the appearance of an improper transaction must be avoided to prevent any potential prosecution of the Company or the individual trader. If you know or suspect that a director, officer or employee of the Company has violated this Insider Trading Policy, we encourage you to contact the Corporate Compliance Officer. You are free to do so on an anonymous basis.
- Penalties. If you engage in any of the above activities, you may subject yourself, the Company and its officers and directors to civil and criminal liability. Penalties of $5,000,000 or three times the profit gained or losses avoided may be imposed. You may also be subject to a jail term of up to 20 years. Violation of this Insider Trading Policy may subject you to immediate discipline by the Company, including discharge from the Company.
- Transactions by Family Members. These prohibitions also apply to your "immediate family" members, including your spouse, minor children or others living in your home. "Immediate family" also includes any child, stepchild, grandchild, parent, stepparent, grandparent, sibling, mother or father-in-law, son or daughter-in-law, or brother or sister-in-law (as well as other adoptive relationships) who shares your same household. The Company will hold you responsible for the conduct of your immediate family and, moreover, the SEC and federal prosecutors may presume that trading by family members is based on information you supplied and may treat any such transactions as if you had traded yourself.
Tipping Information to Others. You may not disclose any material non-public information to others, including your family members, friends or social acquaintances, whether or not under circumstances that suggests that you were trying to help them make a profit or avoid a loss. This prohibition also applies whether or not you receive any benefit from the other person's use of that information. In addition to being considered a form of insider trading, tipping is a serious breach of corporate confidentiality.
For this reason, you should be careful to avoid discussing sensitive information in any place (for instance, at lunch, on public transportation, in elevators, etc.) where such information may be heard by others. The Securities and Exchange Commission (the "SEC") has imposed large penalties even when the disclosing person did not profit from the trading. The SEC, the stock exchanges and FINRA use sophisticated electronic surveillance techniques to uncover insider trading. Do not underestimate their ability to discover your actions. This policy does not restrict legitimate business communications on a "need to know" basis.
Material Non-Public Information. "Material" information is any information which could affect the market for the Company's securities or that a reasonable investor would consider important in making a decision to purchase, hold or sell the Company's securities (e.g., information regarding a possible merger or acquisition involving the Company or major marketing changes). Chances are, if you learn something that leads you to want to buy or sell stock, that information will be considered material. It is important to keep in mind that material information can be any kind of information: information that something is likely to happen, or even just that it may happen, can be considered material. In short, any information which could reasonably affect the price of or influence a person's decision to buy or sell the Company's stock is "material."
"Non-public" information is any information that has not been disclosed generally to the investing public. For example, a speech to an audience, a TV or radio appearance or an article in a trade magazine does not qualify as full disclosure. Therefore, "non-public" information made available in any such manner will continue to be considered "non-public" until more broadly disseminated. Disclosure by press release or in the Company's periodic reports filed with the SEC is necessary to make the information public. Even after the Company has released information to the press and the information has been reported, at least one full business day (that is, a day on which national stock exchanges and Nasdaq are open for trading) should generally be allowed for the investing public to absorb and evaluate the information before you trade in the Company's securities.
Although it is not possible to list all types of material information, the following are a few examples of information that is particularly sensitive and should be treated as material:
- changes in estimates of earnings or sales
- quarterly or annual financial results or projections
- stock splits or securities offerings
- design wins or changes in customer forecasts, up or down
- possible mergers and acquisitions
- significant acquisitions or dispositions of assets
- significant contracts and technology licenses
- contract negotiations with a potentially significant new customer
- changes in management
- the introduction of important products
- serious product defects or recalls
- major marketing changes
- significant litigation
- unusual gains or losses in major operations
- financial liquidity problems
- establishment of a repurchase program for the Company's securities
- changes in auditors
If you have any question as to whether particular information is material or non-public, you should not trade or communicate the information to anyone without prior approval by the Corporate Compliance Officer.
- Inadvertent Disclosure. If material non-public information is inadvertently disclosed by any personnel, including employees, officers and directors, to a person outside the Company who is not obligated to keep the information confidential, you should immediately report all the facts to the Corporate Compliance Officer so that the Company may take appropriate remedial action. As noted in the Company's Fair Disclosure Policy attached hereto as Attachment 1, under SEC rules, the Company generally has only 24 hours after learning of an inadvertent disclosure of material non-public information to publicly disclose such information.
Short-term, Speculative Transactions. The Company has determined that there is a substantial likelihood for the appearance of improper conduct by Company personnel, including employees, officers and directors, when they engage in short-term or speculative securities transactions. Therefore, personnel of the Company are prohibited from engaging in any of the following activities involving the Company's shares, except with the prior written consent of the Corporate Compliance Officer or the Board of Directors:
(a) short sales (for purposes of this Insider Trading Policy, "short sales" means any transaction in which you may benefit from a decline in the Company's stock price);
- (b) buying or selling puts or calls;
- (c) trading in options (other than those granted by the Company);
- (d) engaging in derivative transactions relating to the Company's securities (e.g., exchanged traded options, hedging transactions, etc.); and
- (e) making or maintaining purchases of the Company's securities on margin including pledging Company securities to secure a loan or other obligation.
- Further Prohibition. From time to time, effective immediately upon notice or as otherwise provided by the Company, the Company may determine that other types of transactions, or all transactions, by Company personnel in the Company's securities shall be prohibited or shall be permitted only with the prior written consent of the Corporate Compliance Officer.
Mandatory Preclearance for Directors, Officers and Certain Employees. The following guidelines are applicable to: (i) all members of the Company's Board of Directors, (ii) all executive officers of the Company (including vice presidents of the Company), (iii) all persons who attend the Company's weekly executive staff meeting, (iv) all members of the personal staffs of the Chief Executive Officer, Chief Financial Officer and any other officer of the Company who is a Section 16 Party, (v) all members of the staff of the Company's finance department and (vi) other designated employees, consultants or advisors of the Company who regularly have access or may have access to material non-public information about the Company. The Company has listed on Exhibit A-1attached hereto the directors and officers (each a "Section 16 Party") who are subject to the reporting provisions and trading restrictions of Section 16 of the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the "Section 16 List").
In addition, Exhibit A-2 attached hereto also includes a list of persons (the "Pre-Clearance Approval Parties") who the Company has determined have regular access (or may have access) to material non-public information in the normal course of their duties or services for the Company (for the avoidance of doubt, all of the Section 16 Parties are deemed to be "Pre-Clearance Approval Parties"). The persons to whom these guidelines are applicable may be changed by the Company from time to time as circumstances require. The Company may from time to time update the Pre-Clearance Approval Parties listed in Exhibit A-2 as appropriate or the Section 16 Party list, as appropriate. Failure of the Company to make updates to list a person specifically by name in such lists shall not limit such person's treatment as a Pre-Clearance Approval Party or Section 16 Party as applicable. If you are a Pre-Clearance Approval Party, and have any questions about the application of these provisions when considering the possible purchase or sale of the Company's securities, you should contact the Corporate Compliance Officer before undertaking the transaction and follow his or her instructions.
(a) Trading Prohibition. The release of earnings is a particularly sensitive period of time for transactions in the Company's stock, given that officers, directors and other employees may possess material non-public information about the expected financial results for the quarter. Accordingly, no Pre-Clearance Approval Party may conduct transactions involving the purchase or sale of the Company's securities during a Blackout Period (defined in the next sentence) for the quarter nor may any other employee having access to the Company's internal financial statements for such quarter or access to other material non-public information during such Blackout Period; provided, however, that the restrictions in this sentence shall not apply to (i) the exercise of stock options for cash under the Company's stock option plan and (ii) the exercise of a tax withholding right under which an employee elects to have the Company withhold shares in connection with the vesting of restricted stock to satisfy tax withholding requirements.
With respect to each fiscal quarter of the Company, a "Blackout Period" begins on the close of business on the fifteenth (15th) calendar day preceding the end of the quarter and ends on the opening of the second business day following the earlier of the Company's filing with the SEC of the Company's quarterly or annual financial reports or the public release of quarterly or annual financial information (the "Earnings Release Date"). For Pre-Clearance Approval Parties, as well as all relatives living in the household of any of these persons and all dependents of them regardless of where they live, all transactions involving the Company's securities outside the Blackout Period may be made only after preclearing the transaction with the Company's Corporate Compliance Officer as described in Section 9(b) below.
The Company will inform you of the anticipated date of public disclosure of each quarter's financial results upon request. A schedule showing the Blackout Periods and trading windows is distributed to all Pre-Clearance Approval Parties and is available to others upon request from the Corporate Compliance Officer.
(b) Preclearance of Transactions. All Pre-Clearance Approval Parties, as well as all relatives living in the household of any of these persons and all dependents of them regardless of where they live, must receive preclearance from the Corporate Compliance Officer prior to any transaction involving the Company's securities outside of a Blackout Period or for gifts to individuals that are not immediate family members that occur within a Blackout Period, except the simple exercise of an individual's stock options (transactions by the Corporate Compliance Officer shall be pre-approved by the Chief Executive Officer). However, if the option is being exercised in connection with a same-day sale program, the exercise and sale must occur outside a Blackout Period and also must otherwise comply with this Insider Trading Policy. The Corporate Compliance Officer will make every effort to respond to requests for preclearance as quickly and expeditiously as possible and will use his or her reasonable best efforts to respond not later than 24 hours after any request for preclearance.
Any preclearance of a transaction shall be effective only from the time the preclearance is granted until the end of the trading day on the date that is five full trading days after the preclearance is granted (but a transaction may not be executed within such time period if the individual seeking to complete the transaction subsequently acquires material nonpublic information). If a precleared transaction does not occur within such time period, then additional preclearance shall be required before the trade, or any remaining incomplete portion of the trade can occur. The existence of the foregoing preclearance procedures does not in any way obligate the Corporate Compliance Officer to preclear any transaction.
- (c) Changes/Extensions of Blackout Periods. From time to time, at the discretion of the Corporate Compliance Officer or the Board of Directors, in each case with the advice of the Company's legal counsel, the Company may make temporary changes to Blackout Periods, including, without limitation, changes in time periods or extensions of any Blackout Periods.
- (a) Trading Prohibition. The release of earnings is a particularly sensitive period of time for transactions in the Company's stock, given that officers, directors and other employees may possess material non-public information about the expected financial results for the quarter. Accordingly, no Pre-Clearance Approval Party may conduct transactions involving the purchase or sale of the Company's securities during a Blackout Period (defined in the next sentence) for the quarter nor may any other employee having access to the Company's internal financial statements for such quarter or access to other material non-public information during such Blackout Period; provided, however, that the restrictions in this sentence shall not apply to (i) the exercise of stock options for cash under the Company's stock option plan and (ii) the exercise of a tax withholding right under which an employee elects to have the Company withhold shares in connection with the vesting of restricted stock to satisfy tax withholding requirements.
- Suspension of Trading. From time to time, the Company may also determine, at the discretion of the Corporate Compliance Officer or the Board of Directors, in each case with the advice of the Company's legal counsel, that directors, officers or some or all employees should suspend trading. In such event, such persons may not engage in any transaction involving the purchase or sale of the Company's securities during such period and should not disclose to others the fact of such suspension of trading. Additionally, if the Corporate Compliance Officer becomes aware that material non-public information may have been widely disseminated within the Company, then the Corporate Compliance Officer or Board of Directors may impose a ban on trading for all directors, officer and employees of the Company.
- Others with Material Non-Public Information. It should be noted that, even outside of the trading prohibition, any person possessing material non-public information concerning the Company should not engage in any transactions in the Company's securities until such information has been known publicly for at least one full trading day, whether or not the Company has recommended a suspension of trading to that person. Trading in the Company's securities outside of a Blackout Period (defined above) should not be considered a "safe harbor," and all directors, officers and other persons should use good judgment at all times to make sure that their trades are not effected while they are in possession of material non-public information about the Company.
Section 16 Compliance; Pre-Planned Trading Programs. The Company's directors, and certain of its officers (i.e., the Section 16 Parties listed in Exhibit A-1 hereto) and holders of 10% or more of the Company's outstanding common stock are subject to additional restrictions under Section 16 of the Securities Exchange Act of 1934, as amended, and have additional disclosure obligations and trading restrictions (including the short-swing restrictions discussed in Section 13 below) that are applicable notwithstanding that a transaction is otherwise permitted or has been precleared under this Insider Trading Policy. These individuals also have the ability to adopt a pre-planned trading program subject to the terms and conditions described in Attachment 2 hereto.
If you are a member of the Board of Directors of the Company, an executive officer of the Company, as determined by the Board of Directors, or a holder of 10% or more of the Company's outstanding common stock, under certain circumstances you must file a Rule 144 form with the SEC if you intend to sell stock within the next 90 days. You also must report any changes in your stock ownership position, including stock granted under an option plan, by filing a Form 4 with the SEC within two (2) business days of the date upon which you changed your ownership position.
Directors and Executive Officers - Short-Swing Transactions. Directors and executive officers of the Company and other Section 16 Persons must also comply with the reporting obligations and limitations on short-swing transactions set forth in Section 16 of the Securities Exchange Act of 1934, as amended. The practical effect of these provisions is that executive officers and directors who purchase and sell the Company's securities within a six-month period must disgorge all profits to the Company whether or not they had knowledge of any material non-public information.
Under these provisions, and so long as certain other criteria are met, neither the receipt of an option under the Company's option plans, nor the exercise of that option, is deemed a purchase under Section 16; however, the sale of any such shares (including a sale pursuant to a broker's cashless option exercise) generally is a sale under Section 16. Moreover, no executive officer or director may ever make a short sale of the Company's stock.
Confidentiality Guidelines. All directors, officers and employees of the Company are prohibited from revealing material non-public information to third parties who may engage in trading activities, and from making buy or sell recommendations to third parties based upon such information. If you are in possession of material non-public information, your family members and close friends may also be deemed to be in possession of such information, regardless of whether they have actual knowledge of the information (that is, it would be difficult to prove they did not have actual knowledge).
Consequently, they could also be liable for violations of the insider trading laws if they trade during a time in which you are prohibited from trading, regardless of whether they actually knew the material non-public information at that time. To provide more effective protection against the inadvertent disclosure of material non-public information about the Company or the companies with which it does business, the Company has adopted the following guidelines with which you should familiarize yourself.
These guidelines are not intended to be exhaustive. Additional measures to secure the confidentiality of information should be undertaken as deemed necessary under the circumstances. If you have any doubt as to your responsibilities with respect to confidential information, please seek clarification and guidance from the Corporate Compliance Officer before you act. Do not try to resolve any uncertainties on your own.
The following guidelines establish procedures with which every employee, officer and director should comply in order to maximize the security of confidential inside information:
- (a) Use passwords to restrict access to the information on computers.
- (b) Limit access to particular physical areas where material non-public information is likely to be documented or discussed.
- (c) Do not discuss any Company matter in public places, such as elevators, hallways, restrooms or eating facilities, where conversations might be overheard.
- (d) Do not participate or post on any Internet site or other mode of communication that is available to members of the public (including message or bulletin boards) any information regarding the Company.
- (e) Maintain records in accordance with any applicable document retention policy of the Company.
In addition, every employee or officer of the Company is prohibited from participating in, or otherwise communicating any information to, any expert network, primary research service or other similar organization while employed by the Company.
Authorized Disclosure of Material Non-Public Information. Under certain circumstances, the Corporate Compliance Officer may authorize the immediate release of material non-public information. If disclosure is authorized, the form and content of all public disclosures shall be precleared by the Corporate Compliance Officer pursuant to the terms of the Company's Fair Disclosure Policy attached hereto as Attachment 1. In the cases of material non-public information which is not disclosed, such information is not to be disclosed or discussed except on a strict "need-to-know" basis. All requests for information, comments or interviews (other than routine product inquiries) made to any officer, director or employee of the Company should be directed to the Corporate Compliance Officer, who will clear all proposed responses, which must be in compliance with the Company's Fair Disclosure Policy.
It is anticipated that most questions raised can be answered by the Corporate Compliance Officer or another Company representative to whom the Corporate Compliance Officer refers the request. All officers, directors and employees must comply with the Company's Fair Disclosure Policy and should not respond to such requests directly, unless expressly instructed otherwise by the Corporate Compliance Officer. In particular, great care should be taken not to comment on the Company's expected future financial results. If the Company wishes to give some direction to investors or securities professionals, it must do so only in compliance with the Company's Fair Disclosure Policy. All communications with representatives of the media and securities analysts shall be directed to the Corporate Compliance Officer.
- Company Assistance. If you have any questions about specific information or proposed transactions, or as to the applicability or interpretation of this Insider Trading Policy or the propriety of any desired action, you are encouraged to contact the Corporate Compliance Officer.
- 1. Introduction
- The Company has adopted a written Insider Trading Policy and Guidelines for Disclosure of Material Non-Public Information (the "Insider Trading Policy") to which this Fair Disclosure Policy is an attachment containing certain basic principles and policies concerning the determination, use and disclosure of material non-public information. This Fair Disclosure Policy sets forth the Company's policy concerning the disclosure of material non-public information by the Company to ensure compliance with the SEC's Regulation FD (Fair Disclosure).
- 2. Nature of Liability for Selective Disclosure
- The SEC adopted Regulation FD in response to the perceived problem of selective disclosure of material non-public information to analysts, institutional investors and others. Under the Regulation, whenever the Company, or certain persons acting on its behalf, discloses material non-public information to certain enumerated persons, the Company must make public disclosure of that same information simultaneously (for intentional disclosures), or promptly (for non-intentional disclosures).
- 3. Application
- The Regulation applies to communications by an executive officer, director, investor relations officer, public relations officer or any employee possessing equivalent functions or any other employee or agent who regularly communicates on behalf of the Company with the persons listed below.
The Company cannot make selective disclosures to any of the following four categories of persons, unless the disclosure is specifically excluded by Regulation FD:
- a. broker-dealers and their associated persons;
- b. investment advisors, certain institutional investment managers and their associated persons;
- c. investment companies, hedge funds, and affiliated persons; and
- d. any holder of the Company's securities under circumstances in which it is reasonably foreseeable that such person would purchase or sell such securities on the basis of the information.
Categories a, b, and c include sell-side analysts, buy-side analysts, large institutional investment managers and other market professionals who may be likely to trade on the basis of selectively disclosed information.
Only the Chief Executive Officer, the Corporate Compliance Officer, and the Chief Financial Officer, if not the Chief Compliance Officer, and those employees designated by them, are authorized to speak publicly on behalf of the Company. No other directors, officers or employees should have any communication with any of the persons specified in categories a through d above.
- 4. Exclusions
- Certain disclosures by the Company or persons acting on its behalf are excluded from the coverage of Regulation FD. The exclusions are:
- a. communications made to a person who owes a duty of trust or confidence - i.e., a "temporary insider" - such as the Company's attorneys, investment bankers or accountants;
- b. communications made to any person who expressly agrees to maintain the information in confidence; and
- c. communications made in connection with most offerings of securities registered under the Securities Act of 1933, as amended.
Regulation FD applies to any unregistered offerings (e.g., private placements) made by the Company.
- 5. Avoiding Liability
- Where the Company makes an intentional disclosure of material non-public information to securities professionals or Company security holders, Regulation FD requires the simultaneous disclosure of the same information to the general public. A selective disclosure is intentional when the Company or a person acting on its behalf either knows, or is reckless in not knowing, prior to making the disclosure, that the information is both material and non-public.
Where the Company or individuals acting on its behalf inadvertently disclose material non public information (i.e., it later determines that the information was not public or was material), it is required to make public disclosure promptly. This means that the Company must make a public disclosure as soon as reasonably practicable (but generally no later than 24 hours) after a senior official of the Company learns of the disclosure and knows that the information disclosed was material and non-public.
- 6. Regulation FD Disclosure Procedures
- The Company intends to be fully compliant with Regulation FD. The following policies and procedures have been adopted by the Company to ensure compliance with Regulation FD:
- a. The Corporate Compliance Officer shall designate other officers or senior level employees to be responsible for insuring that the Corporate Compliance Officer is aware of developments within the districts, distribution centers and divisions of the Company and its subsidiaries which may be material.
- b. The Company's Corporate Compliance Officer is responsible for administering and directing compliance with Regulation FD and the policies and procedures set forth in this Fair Disclosure Policy. Any questions relating to compliance with Regulation FD should be directed to the Corporate Compliance Officer. All public disclosures must be precleared by the Chief Executive Officer or Chief Financial Officer, with simultaneous notice to the Corporate Compliance Officer, or by the Corporate Compliance Officer or someone designated by the Corporate Compliance Officer. Company employees shall promptly report to the Corporate Compliance Officer any violations (whether or not they were intentional) of the Company's Fair Disclosure Policy.
- c. As information concerning the Company or the market for its stock which may be material arises within a district, distribution center or division of the Company or one of its subsidiaries, it shall be promptly and fully disclosed to the Corporate Compliance Officer.
- d. The Corporate Compliance Officer shall make a prompt determination, consulting the Company's legal counsel, as necessary, as to whether or not the information is "material." Materiality generally is defined as all information which could be expected to affect the investment decision of a reasonable investor or significantly alter the market price of the stock.
- e. If the information is material, the Corporate Compliance Officer, the Chief Executive Officer or, if applicable, the Chief Financial Officer, may authorize immediate release of the information unless it is determined that disclosure is not then legally required and can be deferred to a later date. If disclosure is authorized, the form and content of all public disclosures shall be precleared by the Chief Executive Officer or Chief Financial Officer, with simultaneous notice to the Corporate Compliance Officer, or by the Corporate Compliance Officer, in each case in consultation with the Company's legal counsel, as necessary, pursuant to the terms of the Company's Fair Disclosure Policy. If disclosure is to be deferred, instructions shall be immediately given that such information is not to be disclosed or discussed except on a strict "need-to-know" basis. The Corporate Compliance Officer may also declare a "limited trading period," during which all officers and directors, and in certain circumstances all employees, desiring to buy or sell the Company's stock must first clear their proposed trade with the Corporate Compliance Officer.
- f. As in the case of insider trading, the Company's Corporate Compliance Officer, in consultation with the Company's legal counsel, as necessary, will make a determination of whether non-public information is material. Material non-public information must not be selectively disclosed. All public disclosures must be made in one of the following manners (each a "Public Disclosure Procedure"):
- i. In a Form 8-K, 10-K, 10-Q or similar filing with the SEC; or
- ii. Through the issuance of a press release, widely distributed through regular channels, containing the material information; or
- iii. Through a conference call held in an open manner, permitting all interested investors to listen in either by telephonic means or through Internet webcasting. Adequate notice, by press release and/or website posting of the scheduled conference call and webcast, must set forth the time and date of the conference call and webcast, and instructions on how to access the call and webcast. As to quarterly earnings calls, the required notice should be given at least 72 hours before a call. A replay of the call or the webcast will be available to the public for at least 72 hours. The Company will archive the webcasts and the calls; or
- iv. Other methods deemed adequate by the Corporate Compliance Officer, after consultation with the Company's legal counsel.
- g. The Company will notify Nasdaq of its intention to release material non-public information by issuing a press release or through another Regulation FD-compliant method (or combination of methods) at least 10 minutes before the release. The Company will notify Nasdaq of: (1) the substance of the public disclosure; (2) the Regulation FD-compliant method it intends to use to make the disclosure; and (3) the information necessary for Nasdaq to locate the disclosure upon release. If the disclosure is made in written form, the Company also will provide to Nasdaq the text of the disclosure by email at least ten minutes prior to its release. In addition, if a press release or other public disclosure may significantly affect trading in the Company's securities, the Company will mail to Nasdaq promptly a copy of the press release or other public disclosure, in accordance with the requirements of Nasdaq.
- h. Earnings guidance will not be provided to securities analysts unless done through a Public Disclosure Procedure set forth above. Generally, the Company should not review analyst reports, and any review actually undertaken by the Company or individuals acting on its behalf should be limited to historical items and similar factual matters. Any updates to the Company's previously disclosed material non-public information shall be done only through a Public Disclosure Procedure.
- i. In the case of unintentional disclosures, the Company must make a public disclosure through a Public Disclosure Procedure as soon as reasonably practicable (but no later than 24 hours) after a senior official of the Company learns of the disclosure and determines that the information disclosed was material and non-public.
- j. Prior to agreeing to making a presentation at any analyst, investor or industry conference, executives other than the Chief Executive Officer and, if applicable, the Chief Financial Officer, must receive the approval of the Corporate Compliance Officer or of the Chief Executive Officer or the Chief Financial Officer, if applicable, with notice to the Corporate Compliance Officer. The content to be presented at such conferences is subject to the review and approval of the Corporate Compliance Officer. In no event may material non-public information be disclosed at such conferences unless such information is simultaneously disclosed through a Public Disclosure Procedure.
k. All requests for information, comments or interviews (other than routine product inquiries) made to any officer, director or employee of the Company should be directed to the Chief Executive Officer or, if applicable, the Chief Financial Officer or to the Corporate Compliance Officer. The Chief Executive Officer or the Chief Financial Officer, with notice to the Corporate Compliance Officer, or the Corporate Compliance Officer will clear all proposed responses which shall be in compliance with the Company's Fair Disclosure Policy. It is anticipated that most questions raised can be answered by the Chief Executive Officer, the Chief Financial Officer, the Corporate Compliance Officer or another Company representative to whom the Corporate Compliance Officer refers the request. Great care should be taken not to comment on expected future financial results. If the Company wishes to give some direction to investors or securities professionals, it must do so only in compliance with the Company's Fair Disclosure Policy.
All communications with representatives of the media and securities analysts shall be directed to the Corporate Compliance Officer, the Chief Executive Officer or, if applicable, the Chief Financial Officer.
- l. The Corporate Compliance Officer or an individual designated by the Corporate Compliance Officer shall be responsible for monitoring trading in the Company's stock in order to isolate circumstances in which the market for the stock may be affected by information which has not been publicly disclosed by the Company. If there is unusual trading activity, the Corporate Compliance Officer, in consultation with the Company's legal counsel, shall endeavor to determine whether the market is being influenced by selectively disclosed information or rumors and, if so, what corrective action by the Company, if any, is warranted.
- m. Disclosing persons shall use the 1995 Private Securities Litigation Reform Act safe harbor for forward-looking statements in connection with all public disclosures.
- n. The Company considers violation of its Fair Disclosure Policy and Regulation FD to be grounds for discipline, including termination for cause.
The Company has adopted a written Insider Trading Policy and Guidelines for Disclosure of Material Non-Public Information (the "Insider Trading Policy"), to which this "Rule 10b5-1 Pre-Planned Trading Programs" is an attachment, containing certain basic principles and policies concerning the trading by officers, directors and employees of the Company in the securities of the Company. This sets forth the Company's policy concerning Rule 10b5-1 pre-planned trading programs by the Company's directors, officer and employees that have been precleared by the Corporate Compliance Officer as provided below.
Notwithstanding any other guidelines contained in the Insider Trading Policy to the contrary, it shall not be a violation of the Insider Trading Policy for the Company's directors, officers and employees to sell (or purchase) securities of the Company under certain pre-planned trading programs adopted to purchase or sell securities in the future which pre-planned trading programs (i) are in compliance with SEC Rule 10b5-1 under the Exchange Act and (ii) have been precleared in advance, in writing, by the Corporate Compliance Officer. To initiate any transactions under this exception, a director, officer or employee (a "person" for purposes of this attachment only) must comply with each of the following elements:
- 1. Introduction
- (a) Before becoming aware of any material non-public information, the person must enter into a binding contract to purchase or sell securities, instruct another person to purchase or sell securities for the person's account, or adopt a written plan for purchasing or selling the securities (a "Trading Program").
- (b) The Trading Program must contain one of the following: (1) specify the amount, price and date of the transaction(s); (2) include a written formula, algorithm or computer program for determining amounts, prices and dates for the transaction(s); or (3) not permit the person to exercise any subsequent influence over how, when or whether to make purchases or sales (and any other person exercising such influence under the Trading Program must not be aware of material non-public information when doing so).
For the purposes of a Trading Program, the following definitions apply:
- "Amount" means a specified number of securities or a specified dollar value of securities.
- "Price" means a market price on a particular date or a limit price, or a particular dollar price.
- "Date" means the day of the year when the order is to be executed, or as soon thereafter as is practical under ordinary principles of best execution. In case of a limit order, "date" means the day of the year when the order is in force.
- (c) Purchases or sales must occur pursuant to the Trading Program.
- (d) The Trading Program cannot be entered into as part of a plan or scheme to evade the prohibitions of Rule 10b-5. Therefore, although modifications to an existing Trading Program are not prohibited, a Trading Program should be adopted with the intention that it will be amended or modified infrequently, if at all, since changes to the Trading Program could raise issues as to the individual's good faith.
- (e) No person purchasing or selling securities under a Trading Program may take (or modify existing) hedging positions to account for his or her planned purchases or sales.
- (f) Any person wishing to proceed under the Trading Program exception (or to modify or terminate a previously adopted Trading Program) must first obtain written preclearance from the Corporate Compliance Officer. This preclearance requirement will permit the Company to review the proposed Trading Program as to compliance with applicable securities laws (including Rule 10b5-1), this Insider Trading Policy and the best interests of the Company, with a view toward avoiding unnecessary litigation and other consequences detrimental to the Company and the person seeking to avail him or herself of this exception. The Company therefore reserves the right to preclear or not preclear any proposed Trading Program (or the modification of any existing Trading Program) in its sole and absolute discretion based on, among other factors, policies and criteria adopted by the Company from time to time, market conditions, legal and regulatory considerations, and the potential impact of any such Trading Program on any actual or prospective transactions (including the distribution of securities) to which the Company is or may be a party.
(g) The Company reserves the right not to preclear any proposed Trading Program (or the modification of any existing Trading Program) unless it includes the following elements, as well as such additional terms and conditions as the Company may require from time to time:
- There is no undisclosed material nonpublic information at the time a person wishes to enter into a Trading Program (or to modify or terminate a previously adopted Trading Program). If there is any such undisclosed information, the Company may delay its preclearance of the Trading Program until the information has been disclosed. The Company may also require an interval between the adoption of the Trading Program and the first trade under such Trading Program.
- Under appropriate circumstances, the Company may wish to make a public announcement of the Trading Program at the time of adoption.
- The proposed Trading Program contains procedures to ensure prompt compliance with (i) any reporting requirements under Section 16 of the Exchange Act, (ii) SEC Rule 144 or Rule 145 under the Securities Act of 1933, as amended, relating to any sales under the Trading Program, and (iii) any suspension of trading or other trading restrictions that the Company determines to impose on sales under a precleared Rule 10b5-1 Trading Program, under applicable law or in connection with a distribution by the Company of securities, including without limitation lock up or affiliate letters required in connection with a proposed merger, acquisition or distribution of Company securities or any restrictions on or suspensions of trading imposed by applicable authorities (including the SEC or other governmental authority, or any stock exchange, automated quotation system or other self regulated organization that promulgates rules to which the Company is subject from time to time).
- (h) Each person understands that the preclearance or adoption of a pre-planned selling program in no way reduces or eliminates such person's obligations under Section 16 of the Exchange Act, as amended, including such person's disclosure and short-swing trading liabilities thereunder. If any questions arise, such person should consult with his or her own counsel prior to entering into a trading program.
Section 16 Parties
All directors of the Company
All executive officers of the Company, including
Pamela G. Marrone, Ph. D.
President, Chief Executive Officer and Director
James B. Boyd
Senior Vice President and Chief Financial Officer
Linda V. Moore
Senior Vice President and General Counsel
Vice President Sales
Nancy M. Hood
Vice President Marketing
Timothy Johnson, Ph.D.
Vice President Field Development and Technical Services
Vice President Regulatory Affairs
Amit Vasavada, Ph.D.
Vice President Research and Development
Pre-Clearance Approval Parties: Employees, Officers and Directors Required to Preclear All Trades
Section 16 Parties
All executive officers, including any vice presidents of the Company who are not Section 16 Parties
All persons who attend the Company's weekly executive staff meetings
All members of the personal staffs of the Chief Executive Officer, Chief Financial Officer and any other officer of the Company who is a Section 16 Party
All members of the staff of the Company's finance department
Any other persons designated by the Corporate Compliance Officer
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