10-K/A
AUBURN NATIONAL BANCORPORATION, INC (AUBN)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM
10-K/A
Amendment No. 1
☒
Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the fiscal year ended
December 31, 2023
OR
☐
Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
For the transition period from __________ to __________
Commission File Number:
0-26486
Auburn National Bancorporation, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
63-0885779
(State or other jurisdiction
of incorporation)
(I.R.S. Employer
Identification No.)
100 N. Gay Street
,
Auburn,
Alabama
36830
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including area code: (
334
)
821-9200
Securities registered pursuant to Section 12 (b) of the Act:
Title of Each Class
Trading Symbol
Name of Exchange on which Registered
Common Stock
, par value $0.01
AUBN
NASDAQ
Global Market
Securities registered to Section 12(g) of the Act:
None
Indicate by check mark if the registrant
is a well-known seasoned issuer, as defined in Rule 405
of the Securities Act. Yes
☐
No
☒
Indicate by check mark if the registrant
is not required to file reports pursuant
to Section 13 or Section 15(d) of the Act.
Yes
☐
No
☒
Indicate by check mark whether the registrant
(1) has filed all reports required to be
filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during
the
preceding 12 months (or for such shorter
period that the registrant was required
to file such reports), and (2) has been subject
to such filing requirements for the past
90 days.
Yes
☒
No
☐
Indicate by check mark whether the registrant
has submitted electronically every Interactive
Data File required to be submitted pursuant
to Rule 405 of Regulation S-
T (§ 232.405 of this chapter) during
the preceding 12 months (or for such
shorter period that the registrant was required
to submit such files).
Yes
☒
No
☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a
smaller reporting company. See the
definitions of “large accelerated filer,” “accelerated filer”
and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check
one):
Large Accelerated filer
☐
Accelerated filer
☐
Non-accelerated filer
☒
Smaller reporting company
☒
Emerging Growth
Company
☐
If an emerging growth company, indicate by check mark if the registrant
has selected not to use the extended
transition period for complying with any
new or revised
financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
☐
Indicate by check mark whether the registrant
has filed a report on and attestation
to its management’s assessment of the effectiveness of its internal
control over
financial reporting under Section 404(b)
of the Sarbanes-Oxley Act (15 U.S.C.
7262(b)) by the registered public accounting
firm that prepared or issued its audit
report.
☐
If securities are registered pursuant to Section
12(b) of the Act, indicate by check
mark whether the financial statements of
the registrant included in the filing reflect
the correction of an error to previously
issued financial statements.
☐
Indicate by check mark whether any
of those error corrections are restatements
that required a recovery analysis of
incentive-based compensation received by any
of
the registrant’s executive officers during the relevant recovery
period pursuant to §240.10D-1(b).
☐
Indicate by check mark if the registrant
is a shell company (as defined in Rule
12b-2 of the Act). Yes
☐
No
☒
State the aggregate market value of the voting
and non-voting common equity held by
non-affiliates computed by reference to the price
at which the common equity
was last sold, or the average bid and
asked price of such common equity
as of the last business day of the registrant’s most recently
completed second fiscal quarter:
$
47,841,697
as of June 30, 2023.
APPLICABLE ONLY TO CORPORATE REGISTRANTS
Indicate the number of shares outstanding
of each of the registrant’s classes of common stock,
as of the latest practicable date:
3,493,674
shares of common stock as
of March 13, 2024.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Proxy Statement for the
Annual Meeting of Shareholders, scheduled
to be held May 14, 2024, are incorporated
by reference into Part II, Item 5 and
Part III of this Form 10-K.
Auditor Name:
Elliott Davis, LLC
Auditor Location:
Greenville, South Carolina
Auditor Firm ID:
PCAOB
149
EXPLANATORY NOTE
Auburn National Bancorporation, Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-K/A ( “Amendment
No. 1”) to amend the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, which was filed
with the United States Securities and Exchange Commission (the “Commission”) on March 14, 2024 (the “Company Form
10-K”). This Amendment No. 1 solely adds Exhibit 97.1 Policy Relating to Recovery of Erroneously Awarded
Compensation and updates Item 15(b) and the List of Exhibits previously filed and the related hyperlinks in the originally
filed Company Form 10-K to reflect the addition of Exhibit 97.1. The Company and its wholly owned subsidiary,
AuburnBank, adopted their Erroneously Awarded Executive Incentive-Based Compensation Recovery Policy included as
Exhibit 97.1 effective December 1, 2023
.
PART
IV
ITEM 15.
EXHIBITS AND FINANCIAL STATEMENT
SCHEDULES
(b)
Exhibits
3.1.
Certificate of Incorporation of Auburn National Bancorporation, Inc. (incorporated by reference from
Registrant's Form 10-Q dated June 30, 2002 (File No. 000-26486)).
3.2.
Amended and Restated Bylaws of Auburn National Bancorporation, Inc., adopted as of November 13, 2007
(incorporated by reference from Registrant’s Form 10-K dated March 31, 2008 (File No. 000-26486)).
4.1.
Description of the Registrant’s Securities
21.1
31.1
Certification signed by Chief Executive Officer pursuant to SEC Rule 13a-14(a).
31.2
Certification signed by Chief Financial Officer pursuant to SEC Rule 13a-14(a).
31.3
Certification signed by the Chief Executive Officer pursuant to SEC Rule 13a-14(a).
31.4
Certification signed by the Chief Financial Officer pursuant to SEC Rule 13a-14(a).
97.1
Policy Relating to Recovery of Erroneously Awarded Compensation (included in herewith)
101.INS
Inline XBRL Instance Document
101.SCH
Inline XBRL Taxonomy Extension
Schema Document
101.CAL
Inline XBRL Taxonomy Extension
Calculation Linkbase Document
101.LAB
Inline XBRL Taxonomy Extension
Label Linkbase Document
101.PRE
Inline XBRL Taxonomy Extension
Presentation Linkbase Document
101.DEF
Inline XBRL Taxonomy Extension
Definition Linkbase Document
104
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101)
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
the registrant has duly caused
this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Auburn, State of
Alabama, on April 12, 2024.
AUBURN NATIONAL
BANCORPORATION,
INC.
(Registrant)
By:
/S/ DAVID
A. HEDGES
David A. Hedges
President and CEO
EX-4.1
AUBURN NATIONAL
BANCORPORATION,
INC AND SUBSIDIARIES
EXHIBIT 4.1
DESCRIPTION OF THE REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934
The following summarizes the terms of certain securities of Auburn National Bancorporation,
Inc., a Delaware corporation
(the “Company”). The Company’s
common stock is registered under Section 12(b) of the Securities Exchange
Act of 1934,
as amended (the “Exchange Act”). The following summary does not purport
to be complete and is qualified in its entirety
by reference to the Company’s Certificate of Incorporation
(as amended, the “Charter”) and Amended and Restated Bylaws
(as amended, the “Bylaws”), each previously filed with the U.S.
Securities and Exchange Commission, as well as reference
to federal and state banking laws and regulations and the Delaware General Corporations
Law (the “DGCL”).
Authorized Capital
The Company’s authorized capital
stock consists of 8,500,000 shares of common stock, $.01 par value per share and
200,000 shares of preferred stock, $.01 par value per share.
Common Stock
Voting
Rights.
Each holder of common stock is entitled to one vote for each share held on all matters on
which our
shareholders are entitled to vote. Directors are elected by a majority vote, and no shareholder
has the right to cumulative
voting with respect to the election of directors.
Dividend Rights.
Subject to the prior rights of holders of any then-outstanding shares of preferred stock, each share of
common stock has equal rights to participate in dividends when, as and if declared
by the board of directors out of funds
legally available therefor.
Liquidation Rights.
Subject to the prior rights of creditors and the satisfaction of any liquidation preference granted to the
holders of any outstanding shares of preferred stock, if any,
in the event of a liquidation, the holders of common stock will
be entitled to share ratably in any assets remaining after payment of all debts and other liabilities.
Other.
Holders of common stock have no redemption or subscription, conversion
or preemptive rights.
Exchange and Trading Symbol.
The common stock is listed for trading on the NASDAQ Global Market under the symbol
“AUBN.”
Transfer Agent and Registrar.
The transfer agent and registrar for the common stock is Computershare Investor Services
LLC.
Preferred Stock
Shares of preferred stock may be issued for any purpose and in any manner
permitted by law, in one or
more distinctly
designated series, including as a dividend or for such consideration as the board
of directors may determine by resolution or
resolutions adopted from time to time. The board of directors is expressly authorized
to fix and state, by resolution or
resolutions adopted from time to time prior to the issuance of any shares of a particular series
of preferred stock, the
designations, voting powers (if any), preferences, and relative, participating, optional
or other special rights, and
qualifications, limitations or restrictions thereof. The rights of the holders of the common
stock will generally be subject to
the rights of the holders of any existing outstanding shares of preferred
stock with respect to dividends, liquidation
preferences and other matters.
As of the date hereof, the Company has no shares of preferred stock designated or outstanding
.
Anti-takeover Effects
Certain provisions of the Charter and Bylaws could make a merger,
tender offer or proxy contest more difficult, even
if
such events were perceived by many of shareholders as beneficial to their interests.
These provisions include (1) requiring,
under certain circumstances, that a “Business Combination” (as defined in the Charter)
be approved by (i) holders of at
least 80% of the outstanding shares entitled to vote, and (ii) by a majority of shares held by persons other
than “Related
Persons” (as defined in the Charter), (2) prohibiting shareholders from removing directors
without cause, and, in order to
remove a director for cause, requiring approval of (i) at least 80% of the outstanding shares
entitled to vote and (ii) a
majority of shares held by persons other than “Related Persons,” (3) advance notice for nominations
of directors and
shareholders’ proposals, and (4) authority to issue “blank check” preferred
stock with such designations, rights and
preferences as may be determined from time to time by the board of directors. In addition, as a Delaware
corporation, the
Company is subject to Section 203 of the Delaware General Corporation Law
which, in general, prevents an “interested
shareholder,” defined generally as a person owning
15% or more of a corporation’s outstanding voting
stock, from
engaging in a business combination with the corporation for three years following
the date that person became an interested
shareholder unless certain specified conditions are satisfied.
Restrictions on Ownership
The ability of a third party to acquire the Company is limited under applicable U.S. banking laws and regulations.
The
Bank Holding Company Act, or BHC Act, requires any bank holding company to obtain
Federal Reserve approval prior to
acquiring, directly or indirectly,
5% or more of any class of voting securities of the bank holding company.
Any “company”
(as defined in the BHC Act) other than a bank holding company would be required
to obtain Federal Reserve approval
before acquiring “control” of a bank holding company.
“Control” generally means (i) the ownership or control of 25%
or
more of a class of voting securities, (ii) the ability to elect a majority of the directors or
(iii) the ability otherwise to exercise
a controlling influence over management and policies. A holder of 25%
or more of the outstanding common stock of a bank
holding company, other than an individual,
is subject to regulation and supervision as a bank holding company under the
BHC Act. On January 30, 2020, the Federal Reserve adopted new rules, effective September
30, 2020 simplifying
determinations of control of banking organizations for BHC Act purposes.
In addition, under the Change in Bank Control Act of 1978, as amended,
and the Federal Reserve’s regulations thereunder,
any person, either individually or acting through or in concert with one or
more persons, is required to provide notice to the
Federal Reserve prior to acquiring, directly or indirectly,
10% or more of the outstanding voting securities of a bank
holding company, and receive
nonobjection from the Federal Reserve.
EX-21.1
AUBURN NATIONAL
BANCORPORATION,
INC. AND SUBSIDIARIES
EXHIBIT 21.1 - SUBSIDIARIES
DIRECT SUBSIDIARIES
JURISDICTION OF INCORPORATION
AuburnBank
Alabama
INDIRECT SUBSIDIARIES
Banc of Auburn, Inc.
Alabama
Auburn Mortgage Corporation
Alabama
EX-31.1
AUBURN NATIONAL
BANCORPORATION,
INC AND SUBSIDIARIES
EXHIBIT 31.1
CERTIFICATION
PURSUANT TO
RULE 13a-14 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, David A. Hedges,
certify that:
- I have reviewed this Annual Report on Form 10-K of Auburn National Bancorporation,
Inc.;
- Based on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not
misleading with respect to the period covered by this report;
- Based on my knowledge, the financial statements, and other financial information included
in this report, fairly present in
all material respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods
presented in this report;
- The registrant’s other certifying officer
and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be
designed under our supervision, to ensure that material information relating to the registrant,
including its
consolidated subsidiaries, is made known to us by others within those entities, particularly
during the period in
which this report is being prepared;
b)
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to
be designed under our supervision, to provide reasonable assurance regarding the reliability
of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted
accounting principles;
c)
Evaluated the effectiveness of the registrant’s
disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures,
as of the end of the period covered
by this report based on such evaluation; and
d)
Disclosed in this report any change in the registrant’s
internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter
(the registrant’s fourth fiscal quarter
in the case of an annual
report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control
over financial reporting; and
- The registrant’s other certifying officer
and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors
and the audit committee of the registrant’s
board of directors (or persons
performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation
of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s
ability to record, process, summarize and
report financial information; and
b)
Any fraud, whether or not material, that involves management or other
employees who have a significant role in
the registrant’s internal control over
financial reporting.
Date: March 14, 2024
/s/ David A. Hedges
President and CEO
EX-31.2
AUBURN NATIONAL
BANCORPORATION,
INC AND SUBSIDIARIES
EXHIBIT 31.2
CERTIFICATION
PURSUANT TO
RULE 13a-14 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, W.
James Walker,
IV,
certify that:
- I have reviewed this Annual Report on Form 10-K of Auburn National Bancorporation,
Inc.;
- Based on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not
misleading with respect to the period covered by this report;
- Based on my knowledge, the financial statements, and other financial information included
in this report, fairly present in
all material respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods
presented in this report;
- The registrant’s other certifying officer
and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be
designed under our supervision, to ensure that material information relating to the registrant,
including its
consolidated subsidiaries, is made known to us by others within those entities, particularly
during the period in
which this report is being prepared;
b)
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to
be designed under our supervision, to provide reasonable assurance regarding the reliability
of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted
accounting principles;
c)
Evaluated the effectiveness of the registrant’s
disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures,
as of the end of the period covered
by this report based on such evaluation;
and
d)
Disclosed in this report any change in the registrant’s
internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter
(the registrant’s fourth fiscal quarter
in the case of an annual
report) that has materially affected, or is reasonably likely to materially affect,
the registrant’s internal control
over financial reporting; and
- The registrant’s other certifying officer
and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors
and the audit committee of the registrant’s
board of directors (or persons
performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation
of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s
ability to record, process, summarize and
report financial information; and
b)
Any fraud, whether or not material, that involves management or other
employees who have a significant role in
the registrant’s internal control over
financial reporting.
Date: March 14, 2024
/s/ W.
James Walker,
IV
SVP,
Chief Financial Officer
EX-31.3
AUBURN NATIONAL
BANCORPORATION,
INC AND SUBSIDIARIES
EXHIBIT 31.3
CERTIFICATION
PURSUANT TO
RULE 13a-14 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, David A. Hedges,
certify that:
- I have reviewed this Amendment No. 1 to the Form 10-K of Auburn National Bancorporation,
Inc.;
- Based on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not
misleading with respect to the period covered by this report;
Date: April 12, 2024
/s/ David A. Hedges
President and CEO
EX-31.4
AUBURN NATIONAL
BANCORPORATION,
INC AND SUBSIDIARIES
EXHIBIT 31.4
CERTIFICATION
PURSUANT TO
RULE 13a-14 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, W.
James Walker,
IV,
certify that:
- I have reviewed this Amendment No. 1 to the Form 10-K of Auburn National Bancorporation,
Inc.;
- Based on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not
misleading with respect to the period covered by this report;
Date: April 12, 2024
/s/ W.
James Walker,
IV
SVP,
Chief Financial Officer
EX-97.1
AUBURN NATIONAL BANCORPORATION
,
INC.
and
AUBURNBANK
Erroneously Awarded Executive Incentive-Based Compensation Recovery Policy
Introduction
Section
10D
was
added
to
the
Securities
Exchange
Act
of
1934
(the
“Exchange
Act”)
by
Section 954 of the
Dodd-Frank Wall Street Reform
and Consumer Protection
Act of 2010.
The
Securities
and
Exchange
Commission
(“Commission”)
adopted,
effective
January
27,
2023,
Commission
Rule
10D-1
under
the
Exchange
Act,
which
requires
each
national
securities
exchange
to
adopt
listing
standards
for
the
recovery
of
erroneously
awarded
executive
compensation.
The Commission approved Nasdaq listing Rule 5608 (“Rule 5608”) on June 9,
2023.
This Policy is adopted
by the Boards
of Directors (the “Board”)
of the Company and
the Bank
(individually and
collectively for
purposes of
this Policy,
the “Company”)
pursuant
to Nasdaq
Rule 5608.
Effective Dates
This Policy
will become
effective upon
its adoption
by the
Company Board
prior to
December
1,
2023.
In
accordance
with
Rule
5608,
this
Policy
shall
only
apply
to
“Incentive-Based
Compensation”
that
is
“Erroneously
Awarded
Compensation”
“Received”
by
“Executive
Officers” on or after October 2, 2023 (as these terms are defined below).
Certain Defined Terms
The following terms apply solely to this Policy solely for purposes of Rule 5608:
“Erroneously
Awarded
Compensation”
is
the
amount
of
Incentive-Based
Compensation
Received
by
each
Executive
Officer
that
exceeds
the
amount
of
Incentive-Based
Compensation that otherwise would have
been Received had it been
determined based on
the restated amounts in the Restatement, computed without regard to any taxes paid.
In the
case of
Incentive-Based Compensation
determined or
based on
stock price
or total
shareholder return, where the amount of Erroneously
Awarded Compensation is not subject
to mathematical recalculation directly
from the information
in a Restatement, the
amount of
Erroneously Award Compensation
shall be based
on a reasonable estimate
of the effect
of
the
Restatement
on
the
stock
price
or
total
shareholder
return
upon
which
the
Incentive-
Based
Compensation
was
Received.
The
Company
shall
maintain
documentation
of
its
determination of that reasonable estimate and provide such documentation to Nasdaq.
“Executive Officer”
means the Company’s and the Bank’s president, principal financial officer,
principal accounting
officer
(or if
there is
no such
accounting officer,
the controller),
and any
vice-president of the Company in charge of a
principal business unit, division, or function
and
is designated
as an
Executive Officer
by the
Board for
purposes of this
Policy and
any other
officer who performs a
policy-making function similar
policy-making functions for
the Company
and is
designated as
an Executive
Officer by
the Board
for purposes
of this
Policy.
The officers
identified
in
the
Company’s
proxy
statement
as
executive
officers
pursuant
to
Commission
Regulation
S-K
Item
401(b)
shall
be
“Executive
Officers”
for
all
purposes
of
this
Policy,
although
others
may
also
be
designated
in
the
Board’s
judgment
to
be
“Executive
Officers”
hereunder.
The Company shall maintain a list from of person designated or deemed
to be its
Executive Officers
hereunder in
the minutes
of the
Board’s
proceedings.
Persons who
may
be
“executive
officers”
for
purposes
of
Board
of
Governors
of
the
Federal
Reserve
System
(“Federal
Reserve”)
Regulation
O
shall
not
be
Executive
Officers
hereunder,
except
as
expressly (i) deemed
in this paragraph
to be “Executive
Officers” or
(ii) expressly designated
as “Executive Officers” by the Board for purposes of this Policy.
“Financial
Reporting
Measures”
means
measures
that
are
determined
and
presented
in
accordance
with
the
accounting
principles
used
in
preparing
the
Company’s
financial
statements, and any
measures that
are derived wholly
or in part
from such measures.
Stock
price and
total shareholder
return are
also financial
reporting measures.
A financial
reporting
measure need
not be
presented
within the
financial statements
or included
in a
filing with
the Commission.
“Incentive-Based
Compensation”
means
any
compensation
that
is
granted,
earned,
or
vested
based wholly
or in
part upon
the attainment
of
one or
more Financial
Reporting
Measure.
“Received” means compensation
(1)deemed received on
or after October
2, 2023 and
(2)
in the Company’s fiscal period during which the Financial
Reporting Measure specified in
the Incentive-Based Compensation award is attained, even if the payment or grant of
the
Incentive-Based Compensation occurs after the end of that period.
Recoveries Upon Restatements of Financial Statements
T
he
Company
will
recover
reasonably
promptly
the
amount
of
Erroneously
Awarded
Compensation
from
Company
Executive
Officers
in
the
event
the
Company
is
required
to
prepare a
restatement of
its financial
statements due
to the
Company’s material
noncompliance
with any financial reporting requirement applicable under
federal securities laws, including any
restatement:
1.
to correct an error in previously
issued financial statements that is material
to the
previously issued financial statements;
or
2.
that
would
result
in
a
material
misstatement
if
the
error
were
corrected
in
the
current period or left uncorrected in the current period.
Therefore,
this Policy
will apply
to any
“Restatement”
of its
financial statements
described in
paragraph
1
or
2
immediately above,
(any
of
which
is
a
“Restatement”)
for
purposes
of
this
Policy.
The
Company’s
shall
recover
Erroneously
Awarded
Compensation,
regardless
of
whether a Restatement is filed.
Date of a Restatement
The date
of a
Restatement (the
“Restatement Date”)
for purposes
of this
Policy is
the earlier
of:
1.
The
date
the
Company’s
board
of
directors
(the
“Board”),
or
the
Board’s
Audit
Committee,
which
is
authorized
to
take
such
action,
concludes
or
reasonably
should have concluded, that the Company is required to
prepare a Restatement;
or
2.
The
date
a
court,
regulator,
or
other
legally
authorized
governmental
authority
having
jurisdiction
over
the
Company
directs
the
Company
to
prepare
a
Restatement.
Recovery Period for Erroneously Awarded Compensation
The amount
of Erroneously
Awarded Compensation subject
to recovery
under this Policy
is the
Erroneously Awarded Compensation Received by each Company Executive
Officer beginning
on the date
the person’s service
commenced as a
Company Executive
officer and the
following
periods:
1.
When
such
person
served
as
an
Executive
Officer
at
any
time
during
the
performance period for that Erroneously Awarded Compensation;
2.
When the
Company had
a class
of securities
listed on
Nasdaq or
another national
securities exchange or a national securities association; and
3.
The three completed fiscal years immediately preceding the Restatement
Date.
Exceptions to Recovery of Erroneously Awarded Compensation
The
Company
shall
recover
Erroneously
Awarded
Compensation
Received
pursuant
to
this Policy,
except where the
Company’s Compensation
Committee, or in
the absence of
a Compensation
Committee, a
majority of
the Company’s
independent directors,
has made
a determination that recovery would be impracticable because:
1.
The direct expense reasonably expected
to be paid to a
third party to assist in
enforcing
this
Policy
and
recover
Erroneously
Awarded
Compensation
previously Received
would exceed
the amount
to be
recovered;
provided
the
Company
must first
make
a
reasonable attempt
to
recover such
Erroneously
Awarded Compensation, document
such reasonable
attempt(s) to
recover, and
provide that documentation to Nasdaq;
2.
Recovery would likely
cause an
otherwise tax-qualified
retirement plan, under
which
benefits
are
broadly available
to
employees
of
the
registrant,
to
fail
to
meet
the
requirements
of
26
U.S.C.
401(a)(13)
or
26
U.S.C.
411(a)
and
the
regulations thereunder; or
3.
Another exception provided
by Nasdaq or
Commission rule or
interpretations is
determined to be available.
No Indemnification
The
Company
shall
not
insure
or
indemnify
any
Executive
Officer
against
any
loss
of
Erroneously Awarded Compensation.
Disclosure of Policy
The Company shall make
all disclosures of
this Policy required by
SEC Rule 10D-1 and
Rule
5608,
on
and
after
December
1,
2023,
including
on
the
cover
page
of
its
Annual
Report
on
Commission Form 10-K, and shall file this Policy as an exhibit to each such Annual Report.