CNH GLOBAL N.V. - INSIDER TRADING POLICY
CNH Global N.V. (“CNH”) is a Dutch corporation, controlled by Fiat Industrial S.p.A. (“FI”), and is listed on the New York Stock Exchange. Although CNH is a “foreign private issuer” under US securities laws, insider trading laws are enforceable against CNH and its subsidiaries (collectively, the “Company”) and their Directors, Officers and Employees.
This Policy is intended to provide recommendations and guidelines to Insiders (as defined in Section 2 below) in order to:
a. familiarize them with the rules and disciplinary provisions (requirements, constraints, risks
and sanctions relating thereto) under US securities laws;
b. help them comply with the provisions of US securities laws that are applicable to the
c. set forth certain Company-required restrictions intended to aid in compliance with US
The Company considers compliance with this Policy to be of the utmost importance. Company personnel who violate this Policy will be subject to disciplinary action, including, but not limited to, dismissal.
Please direct your questions as to any of the matters discussed in this Policy to the Company’s Insider Trading Compliance Officer (See Section 11 below).
2. WHO THIS POLICY APPLIES TO
The Policy applies to the group of people listed below, who are referred to in this Policy as “Insiders”:
- Directors and Officers of the Company;
- Employees of the Company;
- Members of the households and immediate family members (including spouse and children) of persons listed above and other unrelated persons, if they live with or are supported by the persons listed above.
From time to time, other persons will become Insiders and be subject to the Policy if such persons have or may have access to Material and Nonpublic Information (as defined in Section 3 below) or receive Material and Nonpublic Information from any Insider.
Any person who is aware of or possesses Material and Nonpublic Information regarding the Company is an Insider for so long as the information is not publicly known.
The terms “Material Information”, “Nonpublic Information” and “Securities” are defined as follows:
3.1 Material Information
The term “Material Information” includes any information that a reasonable investor would consider important in a decision to buy, hold or sell a security. In short, material information is any information or important development that could reasonably affect the business or financial condition of an issuer or the market price of its security.
By way of example, it is probable that the following information in most circumstances would be deemed material:
- earnings reports, estimates or projections;
- award of a significant supply contract;
- capital expenditure projections;
- decrease or increase in dividend rate;
- significant acquisition or disposition of assets or businesses;
- formation of a joint venture or merger;
- significant labor problems;
- discovery of a new invention or development of a new product;
- proposal to offer additional securities;
- occurrence of significant new indebtedness;
- significant change in management;
- proposed tender offer for another company’s securities;
- significant litigation or government investigations; and
- major marketing changes.
If securities transactions become the subject of scrutiny, the US Securities and Exchange Commission (the “SEC”) and others will decide what is material after the fact. As a result, before engaging in any transaction, Insiders should carefully consider how regulators and others might view the transaction in hindsight.
3.2 Nonpublic Information
“Nonpublic Information” is any information that has not been disclosed to, and absorbed by, the marketplace. Thus, information about the Company that is not yet in general circulation should be considered nonpublic.
In general, Material Information will be considered to be publicly available when it is widely known to the investing public and the public has had a chance to absorb the information and act upon it.
The good faith belief that Material Information has been made public at the time an individual trades does not relieve an individual from liability if he or she is wrong.
The “Securities” to which this Policy applies include:
a. the Company’s common stock, preferred stock, bonds and notes, the stock, bonds and
notes of the Company’s subsidiaries and derivative securities of such securities (such as
options, puts, calls or warrants); and
b. except with respect to Insiders who are directors, officers or employees of FI (and therefore
subject to FI’s policies and procedures with respect to FI’s securities), FI’s ordinary shares,
preferred shares, bonds and notes, the shares, bonds and notes of FI’s subsidiaries and
derivative securities of such securities (such as options, puts, calls or warrants).
In addition, this Policy applies to securities of a third party to the extent that an Insider acquires Material and Nonpublic Information as a result of the Insider’s employment with, or service to, the Company.
4. INSIDER TRADING - INSIDER TIPPING
Insiders are prohibited from trading in Securities while in possession of Material and Nonpublic Information and from passing Material and Nonpublic Information on to any person unless the person has a “need to know” the information for Company-related reasons.
4.1 Insider Trading
Pursuant to the anti-fraud provisions of Section 10(b) of, and Rule 10b-5 under, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), it is unlawful for any person, in connection with the purchase or sale of securities, to do the following:
a. to employ any device, scheme, or artifice to defraud;
b. to make any untrue statement of a material fact or to omit to state a material fact
necessary in order to make the statements made, in the light of the circumstances under
which they were made, not misleading; or
c. to engage in any act, practice, or course of business which operates or would operate as a
fraud or deceit upon any person.
Insiders who want to either buy or sell Securities are subject to the anti-fraud provisions and are not permitted to trade Securities while in possession of Material and Nonpublic Information.
However, Rule 10b5-1 under the Exchange Act provides a “safe harbor” for Insiders who trade pursuant to qualified written trading plans (“Trading Plans”) that they entered into prior to becoming aware of Material and Nonpublic information (refer to Section 7 below).
4.2 Insider Tipping
The US securities laws also prohibit Insiders from giving “tips,” either by revealing Material and Nonpublic Information concerning the Company to others who may use it in trading or by giving others recommendations to buy or sell Securities based upon such information. The effect of “tipping” another on such information is to make the person receiving the information an Insider.
5. BLACKOUT PERIODS
To reduce the risk of Insiders being claimed to have violated an anti-fraud provision, Insiders may not trade Securities during any “Blackout Period” (regardless of whether it is a Regular or Special Blackout Period).
5.1 Regular Blackout Periods
The Company maintains four Regular mandatory Blackout Periods each year. Each Regular Blackout Period commences two weeks prior to the official end date of the quarter and ending two business days after the Company’s public release of its quarterly earnings.
For example, if a scheduled quarterly earnings release date is Wednesday, July 23rd, a Regular Blackout Period will commence on Monday, June 16th, and is anticipated to end on Friday, July 25th.
Insiders should note that quarterly earnings releases may be delayed beyond the scheduled release date, in which case the actual ending date of a Regular Blackout Period will be extended.
5.2 Special Blackout Periods
From time to time, the Company or the Insider Trading Compliance Officer may impose a Special Blackout Period to prohibit some or all Insiders from trading Securities because of material developments, or potentially material developments, known to the Company and not yet disclosed to the public. In such event, all such prohibited Insiders may not engage in any transaction involving the purchase or sale of the Securities and should not disclose to others the fact of such suspension of trading until the second business day after the Company or the Insider Trading Compliance Officer has lifted the Special Blackout Period.
5.3 Blackout Period Procedures and Improper Transactions
The purpose of the Blackout Periods is to help prevent inadvertent violations and to avoid even the appearance of an Improper Transaction when Material information has not yet been disclosed to, and absorbed by, the public. Insiders are prohibited from engaging in any transactions in the Securities during Blackout Periods.
Improper Transactions during a Blackout Period include, without limitation:
- Buying or selling in the open market;
- “Cashless” stock option exercises; and
- Transferring balances out of any Company stock fund under a 401(k) plan.
The policy does not apply to an exercise of an employee stock option where the option stock is paid for with cash or stock, but would prohibit a sale of shares received upon exercise of an option.
At the beginning of each year, and when needed, the Company will post notices of Regular and any Special Blackout Periods on its Intranet site (my.cnh.com>>My Company>>Policies) and on the bulletin board or other prominent location of each Company work site. It is the responsibility and obligation of each Insider to make sure that no Blackout Period, either Regular or Special, is in effect prior to trading in Securities.
Any questions regarding the Blackout Periods should be forwarded to the Company’s Insider Trading Compliance Officer at (630) 887-3766 prior to trading in Securities.
6. GENERAL PROHIBITIONS
6.1 For Insiders
Simply stated, the Policy prohibits Insiders from:
- trading in Securities unless the trade occurs (i) during an Open Trading Window (i.e., the period when no Blackout Period is in place) and (ii) always provided the Insider is not in possession of Material and Nonpublic Information;
- revealing any Material and Nonpublic Information unless the person has a “need to know” the information for Company-related reasons;
- purchasing or selling securities of any other company (including FI) if any Material and Nonpublic Information has been obtained by Insiders through performance of their responsibilities at the Company or in the course of their employment or affiliation with the Company.
Insiders are expected to be responsible for compliance by members of their households or immediate family (including an Insider’s spouse and children), as well as their own compliance.
6.2 For Participants in 401(K) Plan .
All participants in the Company’s 401 (K) Plan may not transfer any Securities (including any matching contributions made in Securities) out of the CNH Stock Fund during any Regular or Special Blackout Period.
6.3 No Short Sales or Derivative Transactions
No Insider may engage in a short sale of the securities under any circumstances
A short sale is a sale of Securities not owned by the seller or, if owned, not delivered against such sale within 20 days thereafter. Transactions in certain put and call options for the Securities may in some instances constitute a short sale.
To ensure compliance with this Policy and applicable federal and state securities laws, the Company requires that all Insiders refrain from investing in derivatives of the Securities, such as puts or call options, at any time. Short sales and investing in other derivatives of the Securities are prohibited by this Policy even when a “trading window” is open.
7. TRADING PLANS
Trading Plans are intended to cover situations in which an Insider must demonstrate that Material and Nonpublic Information was not a factor in a trading decision. Under Rule 10b5-1 of the Exchange Act, there is flexibility for those who plan transactions in advance and comply with a qualified Trading Plan.
In order to qualify, Trading Plans must include:
a. a specified amount of the Securities to be purchased or sold, and the price at which and the
date on which the Securities are to be purchased or sold; or
b. a written formula or algorithm, or computer program for determining the amount, price and
date of the transaction; or
c. a written plan which prohibits the Insider to exercise any subsequent influence over how,
when and whether to conduct the purchases or sales, and delegates those decisions to a
person who did not possess Material and Nonpublic Information.
Rule 10b5-1 does not require Trading Plans to be publicly disclosed. However, before entering into a Trading Plan, Insiders should contact the Company’s Insider Trading Compliance Officer.
8. GUIDELINES FOR TRADING BY INSIDERS
Given the potential pitfalls and serious consequences of insider trading, exercise of good judgment and strict compliance with the simple rules of this Policy will avoid insider trading problems. However, while the general operation of these limitations is straight forward, there may be situations where their applicability is not clear. In these situations, when an Insider has questions concerning any particular transaction, the Insider must call the Company’s Insider Trading Compliance Officer in advance of making any trade.
If an Insider becomes aware of another Insider’s conduct that may amount to insider trading, the Insider must promptly inform the Company’s Insider Trading Compliance Officer of the matter.
9.1 Legal Penalties.
Any Insider who violates the above rules is subject to civil and criminal penalties under the Federal Insider Trading and Securities Fraud Enforcement Act of 1988.
These penalties are:
- disgorgement of profit made or loss avoided by trading or tipping;
- payment of the loss suffered by the person who purchased securities from or sold securities to the individual;
- a civil penalty of up to three times the profit gained or loss avoided;
- a criminal penalty (no matter how small the profit) of up to $5 million; and
- a jail term of up to twenty years.
The penalties for the Company if it fails to take appropriate steps to prevent insider trading include a criminal penalty of up to $25 million.
Additionally, the person may be enjoined, in severe cases, from acting as an officer or director of any publicly traded company. These penalties apply even if the Insider has derived no benefit. The SEC has imposed large penalties on those engaged in tipping--even though the persons involved neither traded themselves nor received any money from friends or relatives to whom they tipped insider information.
9.2 Company Penalties
In addition to any legal penalties, a violation of this policy may subject the Insider, if a Director, to removal and, if an Officer or Employee, to disciplinary action by the Company, up to and including termination for cause.
10. MAINTAINING CONFIDENTIALITY
All Insiders should avoid communicating Nonpublic Information to any person (including family members and friends) unless the person has a “need to know” the information for Company-related reasons. This guideline applies without regard to the materiality of the information. It is the responsibility of each Insider to take whatever practicable steps are appropriate to preserve the confidentiality of Nonpublic information
Consistent with the foregoing, Insiders should be discreet with Nonpublic Information and refrain from discussing it in public places where it can be overheard, such as elevators, hallways and other public spaces in the Company’s offices, restaurants, taxis and airplanes.
To avoid even the appearance of impropriety, each Insider should at all times refrain from providing advice or making recommendations regarding the purchase or sale of Securities or the securities of other companies of which he/she has knowledge as a result of his/her employment or association with the Company.
If an individual communicates information that someone else uses to trade illegally in securities, the legal penalties described above will apply whether or not such individual personally derived any benefit from the illegal trading.
If an Insider inadvertently discloses Material and Nonpublic Information, or discovers that someone else inside or outside the Company has, the Insider should immediately report the facts to the Company’s Insider Trading Compliance Officer for a decision regarding the appropriate remedial steps.
11. INSIDER TRADING COMPLIANCE OFFICER.
The Company has appointed the Company’s General Counsel as the Company’s Insider Trading Compliance Officer. The duties of the Insider Trading Compliance Officer shall include, but not be limited to, the following:
a. Performing cross-checks from time to time, as deemed appropriate by the Company’s
Insider Trading Compliance Officer, of available materials, which may include, officers and
directors questionnaires and reports received from the Company’s stock administrator and
transfer agent, to determine trading activity by Directors, Officers and Employees and
others who have, or may have, access to Material and Nonpublic Information.
b. Circulating the Policy (and/or a summary thereof) to all Directors, Officers and Employees
on an annual basis and providing the Policy and other appropriate materials to new
Directors, Officers and Employees.
c. Coordinating with the Company outside counsel regarding compliance activities with insider
trading laws to ensure that the Policy is amended as necessary to comply with such
d. Coordinating implementation of Trading Plans adopted in compliance with Rule 10b5-1 of
the Exchange Act; provided, however, that the Compliance Officer is not responsible for
determining whether such plans are in compliance with Rule 10b5-1.