UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report:
May 29, 2013
ENSERVCO CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 0-9494 | 84-0811316 |
| State of | Commission File | IRS Employer |
| Incorporation | Number | Identification No. |
501 South Cherry St., Ste. 320
Denver, CO 80246
Address of principal executive offices
303-333-3678
Telephone number, including
Area code
_____________________________
Former name or former address if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
£ Written communications pursuant to Rule 425 under the Securities Act
£ Soliciting material pursuant to Rule 14a-12 under the Exchange Act
£ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
£ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On May 29, 2013, Enservco Corporation’s (the “Company”) Board of Directors met and reviewed proposed amendments to the employment agreements of Michael Herman, the Chief Executive Officer of the Company, and Rick Kasch, the Company’s President. In neither case did the amendments affect compensation payable to Mr. Herman or Mr. Kasch.
Mr. Herman’s employment agreement was amended to extend his term of employment to June 30, 2015, and thereafter continue on a year-to-year basis ending on June 30 of the following year, unless the Company provides notice of non-renewal at least 60 days prior to the last day of the then-current term or the employment agreement is other otherwise terminated.
Mr. Kasch’s employment agreement was amended to extend his term of employment to June 30, 2015, and thereafter continue on a year-to-year basis ending on June 30 of the following year, unless the Company provides notice of non-renewal at least 60 days prior to the last day of the then-current term or the employment agreement is other otherwise terminated. Additionally, Mr. Kasch’s employment agreement was amended to reflect that he will serve as President of the Company.
The Board of Directors approved the amendments to Mr. Herman’s and Mr. Kasch’s employment agreements unanimously. Mr. Herman did not participate in the discussion of his employment agreement or the vote to approve the agreement.
Item 5.05 Amendments to the Registrant’s Code of Ethics.
On May 29, 2013, the Company’s Board of Directors met and discussed the Company’s Code of Business Conduct and Ethics and Whistleblower Policy (the “Code of Business Conduct”) and reviewed proposed amendments to the Code of Business Conduct. After review and discussion, the Directors adopted the amendments to the Code of Business Conduct. Although the amendments are generally non-substantive, the Directors believed that it was important to revise and republish the Code of Business Conduct, as it had not been revised since July 2010. The Code of Business Conduct is available on the Company’s website.
Item 8.01 Other Events
Prior to May 29, 2013, the Company’s Board of Directors followed an informal policy regarding related party transaction. On May 29, 2013, the Board reviewed and adopted a formal Related Party Transactions Policy. The Related Party Transactions Policy is available on the Company’s website.
Also on May 29, 2013, the Board reviewed the merits of creating an audit committee. The directors believed that it was in the Company’s best interest to establish one, and they unanimously resolved to create an Audit Committee and appointed Mr. Oppenheim to serve as Chair of the Audit Committee and Mr. Laheney to serve as a member of the Audit Committee. Additionally, the Board unanimously approved the Audit Committee Charter, which is available on the Company’s website.
Item 9.01 Financial Statements and Exhibits
| (d) | Exhibits |
| 10.01 | Amendment no. 1 to employment agreement with Michael D. Herman |
| 10.02 | Amendment no. 2 to employment agreement with Rick D. Kasch |
| 14.01 | Code of Ethics |
| 99.01 | Related Party Transactions Policy |
| 99.02 | Audit Committee Charter |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on the 30th day of May 2013.
| Enservco Corporation | |
| By: /s/ Rick D. Kasch | |
| Rick D. Kasch, President | |
Exhibit 10.01
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT is effective as of June 1, 2013 by and between ENSERVCO CORPORATION, a public Delaware corporation, (the “Company”), and Michael D. Herman (“Herman”), sometimes collectively referred to as the “Parties.”
WITNESSETH
WHEREAS, the Company entered into an employment agreement with Herman on July 27, 2010 (the “Agreement”); and
WHEREAS, at a meeting of the Board of Directors on May 29, 2013, certain terms of the Agreement were amended at the direction of the Company’s Board of Directors and the Parties wish to memorialize those amendments as set forth herein.
NOW, THEREFORE, in consideration of the conditions and covenants set forth, it is agreed that the Agreement be and hereby is amended, effective as June 1, 2013, so that:
| A. | Paragraph 2 (“Terms of Employment”) reads as follows: |
| 1. | Term of Employment. Executive’s term of employment under this Agreement will commence on July 27, 2010 and continue until June 30, 2015 (the “End Date”), and on a year-to-year basis thereafter ending each June 30th thereafter (the “Term”), unless: (i) the Company provides the Executive with a notice of non-renewal not less than 60 days before the last day of the then-current Term (as then effective); or (ii) the Agreement is otherwise terminated as described in Section 5 thereof. |
| B. | Except as specifically amended hereby the Agreement remains in full force and effect. |
[Remainder of Page Intentionally Left Blank]
| Employment Agreement Amend - Herman | Page 1 |
IN WITNESS WHEREOF, the Parties have executed this Amendment to be effective as stated above.
ENSERVCO CORPORATION
By: /s/ Rick D. Kasch
Rick D. Kasch, President
Date: May 29, 2013
EXECUTIVE
By: /s/ Michael D. Herman
Michael D. Herman
Date: May 29, 2013
| Employment Agreement Amend - Herman | Page 2 |
Exhibit 10.02
AMENDMENT NO. 2
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT is effective as of June 1, 2013, by and between ENSERVCO CORPORATION, a public Delaware corporation, (the “Company”), and RICK D. KASCH (“Kasch”), sometimes collectively referred to as the “Parties.”
WITNESSETH
WHEREAS, the Company entered into an employment agreement with Kasch on July 27, 2010, which was amended on July 19, 2011, (the “Agreement”); and
WHEREAS, at a meeting of the Board of Directors on May 29, 2013, certain terms of the Agreement were amended at the direction of the Company’s Board of Directors and the Parties wish to memorialize those amendments as set forth herein.
NOW, THEREFORE, in consideration of the conditions and covenants set forth, it is agreed that the Agreement be and hereby is amended, effective as of June 1, 2013, so that:
| A. | Paragraph 1 (“Employment”) reads as follows: |
| 1. | Employment. Subject to the terms and conditions of this Agreement, the Company and Executive agree to enter into an employment relationship whereby Executive will serve as the Company’s President. Executive will report to the Company’s Chief Executive Officer. Executive will have such responsibilities and authority as are consistent with the offices of President and as may be determined from time to time by the Company’s Chief Executive Officer. Executive is not required to devote all of his working time and efforts to the performance of services for the Company. However, all Company performance will be to the best of Executive’s ability. |
| B. | Paragraph 2 (“Terms of Employment”) reads as follows: |
| 2. | Term of Employment. Executive’s term of employment under this Agreement will commence on July 27, 2010 and continue until June 30, 2015 (the “End Date”), and on a year-to-year basis thereafter ending each June 30th thereafter (the “Term”), unless: (i) the Company provides the Executive with a notice of non-renewal not less than 60 days before the last day of the then-current Term (as then effective); or (ii) the Agreement is otherwise terminated as described in Section 5 thereof. |
| C. | Except as specifically amended hereby the Agreement remains in full force and effect. |
| Employment Agreement Amend - Kasch | Page 1 |
IN WITNESS WHEREOF, the Parties have executed this Amendment to be effective as stated above.
ENSERVCO CORPORATION
By: /s/ Michael Herman
Michael Herman, Chief Executive Officer
Date: May 29, 2013
EXECUTIVE
By: /s/ Rick D. Kasch
Rick D. Kasch
Date: May 29, 2013
| Employment Agreement Amend - Kasch | Page 2 |
Exhibit 14.01
Enservco Corporation
(formerly known as Aspen Exploration Corporation)
CODE OF BUSINESS CONDUCT AND ETHICS
AND WHISTLEBLOWER POLICY
Adopted by the Board of Directors on July 27, 2010
As amended May 29, 2013
Introduction
Enservco Corporation (“Enservco”) is committed to the highest standards of legal and ethical business conduct. This Code of Business Conduct and Ethics (the “Code”) summarizes the legal, ethical and regulatory standards that Enservco must follow and is a reminder to our directors, officers and employees of the seriousness of that commitment. Compliance with this Code and high standards of business conduct is mandatory for every director, officer and employee of Enservco and its subsidiaries. This Code is intended to comply with the requirements of SEC Regulation S-K, Item 406 as well as NYSE MKT Rule 807, SEC Rule 10A-3(b)(3), and NYSE MKT Rule 803.B(4), clause (b).
Our business is becoming increasingly complex in terms of the geographies in which we function and the laws with which we must comply. To help our directors, officers and employees understand what is expected of them and to carry out their responsibilities, we have created this Code. Our Compliance Officer will have the primary responsibility of overseeing adherence to the Code. Robert J. Devers has been appointed as our Compliance Officer; his telephone number is: 720-974-3408, and his e-mail address is: bdevers@enservco.com. You should also notify the chair of the audit committee at compliance@enservco.com.
This Code is not intended to be a comprehensive guide to all of our policies or to all your responsibilities under law or regulation. It provides general parameters to help you resolve the ethical and legal issues you encounter in conducting our business. Think of this Code as a guideline, or a minimum requirement, that must always be followed. If you have any questions about anything in the Code or appropriate actions in light of the Code, you may contact Enservco’s Compliance Officer.
This Code should be read in conjunction with our other corporate policies, including our policies on insider trading for employees and directors. If you have questions about this Code, other Enservco policies, or how to comply with the law in a certain situation, it is important that you immediately bring your questions to the Compliance Officer or any of Enservco’s executive officers. If you are in or observe a situation that you believe may violate or lead to a violation of this Code, you should refer to Section D of our Code for guidance on how to report questionable behavior.
Anyone who violates the standards of this Code will be subject to disciplinary action. Such action may include immediate termination of employment.
For the purpose of this Code the term “Enservco” should be interpreted to apply to Enservco Corporation (a Delaware corporation), Dillco Fluid Service, Inc. (a Kansas corporation), Heat Waves Hot Oil Service LLC (a Colorado limited liability company) and any and all related or affiliated entities.
| Page 1 | Code of Business Conduct and Ethics and Whistleblower Policy |
A. Compliance with All Laws, Rules and Regulations
Enservco requires that all its directors, officers, and employees strictly adhere to all applicable local, state, and federal laws. If you have questions about what laws we are subject to, or about how to comply with certain laws, it is important that you alert an officer of Enservco to your question. We rely on you not only to act ethically, but also to assist your fellow employees and management in following the law.
When appropriate, Enservco will provide information and training to promote compliance with laws, rules, and regulations, including insider-trading laws.
B. Ethical Conduct, Conflicts of Interest and Related Party Transactions
Enservco’s employees, officers, and directors are expected to make or participate in business decisions and actions based on the best interests of Enservco as a whole, and not based on personal relationships or personal gain. As we define it, a “conflict of interest” exists when a person’s private interest interferes in any way with the interest of Enservco, or even when a private interest creates an appearance of impropriety. A conflict situation can arise when you have interests that make it difficult for you to perform your work objectively, or when a director, officer, or employee receives improper personal benefits as a result of his or her position with Enservco.
It is almost always a conflict of interest for an Enservco employee to work simultaneously for a competitor, customer, or supplier.
It is also almost always a conflict of interest for a full-time Enservco employee to have a second job elsewhere, whether or not with a competitor, customer, or supplier unless you have notified the president of the second job, and the president approves.
You should avoid any relationship that would cause a conflict of interest with your duties and responsibilities at Enservco. All directors, officers, and employees are expected to disclose to management any situations that may involve inappropriate or improper conflicts of interests affecting them personally or affecting other employees or those with whom we conduct business.
Members of Enservco’s Board of Directors have a special responsibility to our company and to our stockholders. To avoid conflicts of interest, directors are required to disclose to their fellow directors any personal interest they may have in a transaction being considered by the Board and, when appropriate, to recuse themselves from any decision involving a conflict of interest. Unless and until such responsibility is delegated to a committee of the Board of Directors, the Board of Directors as a whole is charged with reviewing and approving all related party transactions and potential conflict of interest situations. Waivers of a conflict of interest or this Code involving executive officers and directors require approval by the Board of Directors. Any such waiver will be disclosed to our stockholders within four business days, along with the reasons for the waiver, through the filing of a Form 8-K.
Any discovery of a potential or existing conflict of interest should be immediately disclosed to management in accordance with the procedures set forth in Section D of our Code.
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C. Our Commitment to Full, Fair, Accurate, Timely and Plain English Disclosure
As a public company, it is critical that Enservco’s filings with the Securities and Exchange Commission (the “SEC”) be complete, timely and accurate in all material respects. At Enservco, all our employees, officers and directors are charged with the responsibility of providing management with accurate and complete information to assure we are complying with our public disclosure requirements and our commitment to our stockholders.
Commensurate with these special duties, all executive officers, directors, and other employees each agree that he or she will:
| 1. | Act honestly and ethically in the performance of their duties at Enservco, avoiding actual or apparent conflicts of interest in personal and professional relationships. |
| 2. | Provide information that is accurate, complete, objective, relevant, timely and understandable to ensure full, fair, accurate, timely, and understandable disclosure in reports and documents filed with or submitted to the SEC or used in other public communications by Enservco. |
| 3. | Comply with applicable rules and regulations of federal, state, provincial, local and overseas governments, as well as those of other appropriate private and public regulatory agencies that affect the conduct of Enservco’s business and Enservco’s financial reporting. |
| 4. | Act in good faith, responsibly, with due care, competence and diligence, without misrepresenting material facts or allowing one’s independent judgment to be subordinated. |
| 5. | Respect the confidentiality of information acquired in the course of one’s work, except when authorized or otherwise legally obligated to disclose such information. Further, confidential information acquired in the course of performing one’s duties for Enservco will not be used for personal advantage. |
| 6. | Share knowledge and maintain skills relevant to carrying out the member’s duties within Enservco. |
| 7. | Proactively promote and set an example of ethical behavior as a responsible partner among peers and colleagues in the work environment and community. |
| 8. | Achieve responsible use of and control over all assets and resources of Enservco to which they are entrusted. |
| 9. | Promptly bring to the attention of our Compliance Officer any information concerning (a) any conduct believed to be a violation of law or business ethics, or this Code, including any transaction or relationship that reasonably could be expected to give rise to such a conflict, (b) significant deficiencies in the design or operation of internal controls which could adversely affect Enservco’s ability to record, process, summarize and report financial data or (c) any fraud, whether or not material, that involves management or other employees who have a significant role in Enservco’s financial reporting, disclosures, or internal controls. |
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D. Enservco’s Enforcement Mechanisms and Open Door Policy on Reporting Violations
Our employees are encouraged to talk to senior management about observed illegal or unethical behavior and to ask questions when in doubt as to how to comply with this Code, our policies, and the law. Any person who has complaints or concerns about Enservco’s accounting, internal accounting controls or auditing matters, or who becomes aware of questionable accounting or auditing matters, or who becomes aware of any violation by any person of law or Enservco policies is strongly encouraged to report such matters to the Compliance Officer.
To protect persons reporting questionable behavior, it is the policy of Enservco not to allow retaliation for reports of misconduct by others made in good faith by our employees. Further, employees, officers and directors, are expected to cooperate and be forthcoming with information during an internal or regulatory investigation of misconduct. Any employee may submit a good faith concern regarding questionable accounting or auditing matters without fear of dismissal or retaliation of any kind.
In order to facilitate a complete investigation, employees should be prepared to provide as many details as possible, including a description of the questionable practice or behavior, the names of any persons involved, the names of possible witnesses, dates, times, places, and any other available details. Enservco encourages all employees with complaints or concerns to come forward with information and prohibits retaliation against employees raising concerns. Nonetheless, if an employee feels more comfortable doing so, reports may be made confidentially and/or anonymously to the Compliance Officer or to the Board of Directors.
At Enservco, we all work as a team to ensure prompt and consistent action against violations of this Code or applicable laws. To establish clear and objective standards for compliance and a fair process by which to determine violations, this procedure should be followed:
| 1. | Gather Facts. In the event some behavior or action raises a question as to your own or someone else’s compliance with this Code, the first step is to collect all available facts, as time permits. |
| 2. | Clarify the Circumstances at Issue. In most situations, there is shared responsibility. It may help to get others involved to discuss a perceived problem. |
| 3. | Discuss the Problem with Management. This is your most basic responsibility. If you have a concern, discuss it with our Compliance Officer. |
| 4. | You May Report Violations in Confidence without Fear of Retaliation. If the situation requires that your identity be kept secret, your anonymity will be protected to the extent permitted by law. |
| 5. | Ask First, then Act. If you are unsure of what to do in any situation, seek guidance before you act. |
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Given the broad scope of this Code, violations may occur in differing degrees. In most cases, management is charged with enforcement of this Code. In other cases, a separately designed committee of the Board of Directors may be involved. To ensure consistency, management will take the following steps when it receives information that there has been a violation of our Code or the law:
Reports Related to Financial Practices: Complaints, questions or concerns related to our financial practices should be addressed to our Compliance Officer.
Questions Related to General Business Practices: If after reviewing a complaint or question, management reasonably believes a material violation of this Code may have occurred, management will either begin an internal investigation, or where appropriate, engage the services of an independent, outside professional to conduct an investigation. If the results of an investigation indicate that a violation of the Code or the law has occurred, management will take appropriate disciplinary action. Such disciplinary action, which may include termination of employment, will take into account the seriousness of the violation, whether the conduct was willful or inadvertent, applicable laws related to employee rights, and general industry standards.
E. CONFIDENTIALITY AND CORPORATE ASSETS
Our directors, officers and employees are entrusted with our confidential information and with the confidential information of our business partners. This information may include (1) technical or other information about current and future projects or endeavors, (2) business or marketing plans or projections, (3) earnings and other internal financial data, (4) personnel information, (5) lists of current, past and potential business partners and (6) other non-public information that, if disclosed, might be of use to our competitors, or harmful to our business partners. This information is our property, or the property of our business partners, and in many cases was developed at great expense. Unless authorized by written approval or required by applicable law, our directors, officers and employees shall not:
| 1. | Discuss confidential information with or in the presence of any unauthorized persons, including family members and friends. |
| 2. | Use confidential information for illegitimate business purposes or for personal gain. |
| 3. | Disclose confidential information to unauthorized third parties. |
| 4. | Use Enservco property or resources for any personal benefit or the personal benefit of anyone else. Enservco’s property includes, without limitation, Enservco’s internet, email, and voicemail services, which should be used only for business related activities, and which may be monitored by Enservco at any time without notice. |
F. HEDGING OF ENSERVCO’S SECURITIES
Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act added Section 14(j) to the Securities Exchange Act of 1934 which requires each issuer (including Enservco) to disclose whether any employee or member of the board of directors, or any designee of any employee or board member, is permitted to purchase hedges – that is, financial instruments that are designed to hedge or offset against any decrease in the market price for the issuer’s securities. The Enservco Board of Directors has concluded that it is inappropriate for employees or members of the board of directors, or any designee of such persons, to purchase hedges.
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Acknowledgement. Each employee, officer, and director of Enservco must acknowledge that he or she has received a copy of this Code of Ethics and has reviewed this Code of Ethics. This acknowledgement will be maintained in your employee files.
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Exhibit 99.01
ENSERVCO CORPORATION
RELATED PARTY TRANSACTIONS POLICY
Adopted May 29, 2013
The Board of Directors of Enservco Corporation (“Enservco” or the “Company”) has adopted this related party transaction policy to assist it in reviewing, approving and ratifying related party transactions and assist it in preparing the disclosure that is required by the rules and regulations of the Securities and Exchange Commission (the “SEC”) for inclusion in the Company’s applicable SEC filings.
Transactions covered by this policy include any transaction that is or may be a Related Party Transaction, as defined below. All Related Party Transactions are prohibited unless approved or ratified by the disinterested directors of the Company. A Related Party Transaction entered into without pre-approval shall not be deemed to violate this policy or be invalid or unenforceable so long as the transaction is brought to the disinterested directors as promptly as reasonably practical after it is entered into and such transaction is ratified.
| I. | Definitions |
| A. | “Executive Officer” has the meaning used in Rule 3b-7 of the Securities Exchange Act of 1934. |
| B. | “Immediate Family Member” means a child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, or any person sharing the household (other than a tenant or employee). |
| C. | “Related Party” means any Executive Officer or director of the Company, any nominee for director and the Immediate Family Members of such nominee, and a 5% or greater beneficial owner of the Company’s voting securities or any Immediate Family Member of such owner. |
| D. | “Related Party Transaction” includes: |
| a. | Any transaction or relationship directly or indirectly involving a Related Party that would need to be disclosed under Item 404(a) of Regulation S-K; |
| b. | Any material amendment or modification to an existing Related Party Transaction; and |
| c. | Any transaction deemed by the directors or the Company’s legal counsel to be a Related Party Transaction. |
“Related Party Transaction” does not include an indemnification and advancement of expenses payment made pursuant to the Company’s Articles of Incorporation, Bylaws, or any agreement or instrument or a transaction that involves the providing of compensation to a director or executive officer in connection with his or her duties to the Company or any of its subsidiaries or affiliates, including the reimbursement of business and travel expenses incurred in the ordinary course.
| Page 1 | Related Party Transactions Policy |
| II. | Procedure |
Any Related Party Transaction must be approved or ratified by the disinterested members of the Company’s Board of Directors. Each Executive Officer, director, or nominee for director will promptly notify the Company’s Board of Directors and the Company’s legal counsel of any proposed Related Party Transaction. The notice will include:
| a. | The name of the Related Party and the basis on which such person is a Related Party; |
| b. | The Related Party’s interest in the proposed Related Party Transaction; |
| c. | An appropriate description of the proposed Related Party Transaction; |
| d. | The approximate dollar value of the amount involved in the proposed Related Party Transaction; and |
| e. | The approximate dollar value of the amount of the Related Party’s interest in the transaction. |
The Company’s disinterested directors will review the information provided in the notice and may request such additional information as they determine necessary and reasonable. If the disinterested directors determine that a proposed Related Party Transaction is not a Related Party Transaction, no further action is necessary.
In reviewing the proposed Related Party Transactions, the disinterested directors shall consider all relevant facts and circumstances, including without limitation the commercial reasonableness of the terms, the benefit and perceived benefit (or lack thereof) to the Company, opportunity costs of alternate transactions, the materiality and character of the Related Party’s direct or indirect interest, and the actual or apparent conflict of interest of the Related Party. The disinterested directors shall not approve or ratify a Related Party Transaction unless they have determined that upon consideration of all relevant information, the proposed Related Party Transaction is in, or not inconsistent with, the best interests of the Company and its shareholders.
The disinterested directors may retain independent counsel and other advisors to assist in reviewing the Related Party Transaction if, in the judgment of the disinterested directors, such assistance is appropriate. The Company shall provide for funding, as determined by the disinterested directors, and for payment of any ordinary administrative expenses of the disinterested directors that are necessary or appropriate in carrying out their review of Related Party Transactions.
If after the review of proposed Related Party Transaction, the disinterested directors determine not to approve or ratify a Related Party Transaction, the Related Party Transaction will not be entered into or continued.
On an annual basis, the Company’s independent directors will review previously approved Related Party Transactions which are continuing on an ongoing basis to determine whether such Related Party Transactions should continue. If an independent director is a Related Party to such previously approved Related Party Transaction, such director shall not participate in the determination of whether such transaction should continue.
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No approval or ratification of a Related Party Transaction pursuant to this Policy shall be deemed to supersede the requirements of the Company’s Code of Business Conduct and Ethics and Whistleblower Policy (the “Code of Business Conduct”) and, to the extent applicable, each Related Party Transaction shall also comply with the Company’s Code of Business Conduct.
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Exhibit 99.02
ENSERVCO CORPORATION
AUDIT COMMITTEE CHARTER
Adopted May 29, 2013
The Audit Committee (the “Committee”) is a standing committee of Enservco Corporation’s (“Enservco” or the “Company”) Board of Directors. The purpose of the Committee is to assist the Board of Directors in fulfilling its oversight of the integrity of the financial statements of the Company, of the Company’s compliance with legal and regulatory requirements, of the independence and qualifications of the independent auditor, and of the performance of the Company’s internal audit function and independent auditors. The Committee has an oversight role, and in fulfilling that role it relies on the reviews and reports provided by the Company. The Committee will report to the shareholders in the Company’s annual information statement or proxy statement. The Committee will keep an open line of communication between the Committee, the independent accountant, the internal auditor, and financial management.
In carrying out its responsibilities, the Committee believes that the policies and procedures delineated in this Charter should remain flexible in order to react to changing business and regulatory requirements.
Organization
The Committee will be composed of at least two independent directors who are not officers or employees of the Company or its subsidiaries and who meet the definition of “independent” as set forth in Section 803A(2) of the NYSE MKT Rules. The members of the Committee must each be financially literate, and at least one member of the Committee shall have accounting or financial management expertise. The Committee will meet regularly to perform its duties.
The Company shall provide for funding, as determined by the Audit Committee, for payment of the ordinary administrative expenses of the Audit Committee that are necessary or appropriate in carrying out its duties, including the payment of reasonable compensation and expenses to any independent counsel and advisors retained by the Audit Committee.
When the Board of Directors has not appointed an Audit Committee, the entire Board will serve in the function of the Audit Committee and be subject to this Charter.
Responsibilities
In furtherance of the Committee’s purpose, the Committee shall have the following authority and responsibilities:
| 1. | To meet to review and discuss with management and the independent auditor the annual audited financial statements and quarterly financial statements, including the Company’s specific disclosures under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and any other matters required to be reviewed under applicable legal, regulatory or stock exchange requirements (and unless the Company’s common stock is listed on a different stock exchange, the term “stock exchange requirements” will be interpreted in accordance with the rules and regulations of the NYSE MKT). |
| Page 1 | Audit Committee Charter |
| 2. | To discuss with management and the independent auditor, as appropriate, prior to their release to the public, earnings press releases and financial presentations provided to analysts and rating agencies. |
| 3. | To select the independent auditor to examine the Company’s accounts, controls and financial statements. The Committee shall have the sole authority and responsibility to select, evaluate, compensate and oversee the work of any registered public accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company (including resolution of disagreements between management and the auditor regarding financial reporting). The independent auditor and each such registered public accounting firm will report directly to the Committee. The Committee shall have the sole authority to approve all audit engagement fees and terms and the Committee, or the chair of the Committee, must preapprove any audit and non-audit service provided to the Company by the Company’s independent auditor. |
| 4. | To discuss with management and the independent auditor, as appropriate, any audit problems or difficulties and management’s response. |
| 5. | To discuss with management the Company’s risk assessment and risk management practices and the guidelines, policies and processes for risk assessment and risk management. |
| 6. | To oversee the Company’s risk policies and processes relating to financial statements, financial systems, financial reporting processes, compliance and auditing, and allowance for loan and lease losses, as well as the guidelines, policies and processes for monitoring and mitigating such risks. |
| 7. | To oversee the Company’s financial reporting activities, including our annual report, and accounting standards and principles, significant changes in such standards or principles or in their application and the key accounting decisions affecting the Company’s financial statements, including alternatives to, and the rationale for, the decisions made. |
| 8. | To review and approve the internal audit functions, including: (i) purpose, authority and organizational reporting lines; (ii) annual audit plan, budget and staffing; and (iii) concurrence in the appointment, compensation and rotation of the senior internal audit staff. |
| 9. | To review the Company’s internal system of audit and financial controls and the results of internal audits. |
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| 10. | To obtain and review at least annually a formal written report from the independent auditor delineating: the auditing firm’s internal quality-control procedures; the auditing firm’s independence; and any material issues raised within the preceding five years by the auditing firm’s internal quality-control reviews, by peer reviews of the firm, or by any governmental or other inquiry or investigation relating to any audit conducted by the firm. The Committee will also review steps taken by the auditing firm to address any findings in any of the foregoing reviews. Also, in order to assess auditor independence, the Committee will review at least annually all relationships between the independent auditor and the Company. |
| 11. | To prepare and publish an annual Committee report in the Company’s information statement or proxy statement. |
| 12. | To set policies for the hiring of employees or former employees of the Company’s independent auditor. |
| 13. | To review and investigate any matters pertaining to the integrity of management or adherence to standards of business conduct as required in the policies of the Company. This should include regular reviews of the compliance processes and programs in general and the corporate ombudsman process in particular. |
| 14. | To establish and oversee procedures for the receipt, retention and treatment of complaints on accounting, internal accounting controls or auditing matters, as well as for confidential, anonymous submissions by Company employees of concerns regarding questionable accounting or auditing matters. |
| 15. | To investigate any matter brought to the attention of the Audit Committee within the scope of the Audit Committee's duties, with the power to retain independent counsel and other advisors for this purpose if, in the judgment of the Audit Committee, that is appropriate. |
The Committee shall report its actions and any recommendations to the Board of Directors after each Committee meeting and shall conduct and present to the Board of Directors an annual performance evaluation of the Committee. The Committee shall review at least annually the adequacy of this charter and recommend any proposed changes to the Board of Directors for approval.
| Page 3 | Audit Committee Charter |