On November 28, 2022, the Securities and Exchange Commission (the SEC) published final clawback rules (the Final Rules) in response to the long-standing requirement under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act to increase transparency and disclosure in financial reporting; the Final Rules were adopted by the SEC on October 26, 2022, and become effective 60 days following publication, i.e., January 27, 2023.
Ultimately, the Final Rules will require companies that are listed on the NYSE or NASDAQ to establish, comply with, and disclose a written policy that provides for the recovery, or clawback, by the company of any incentive-based executive compensation that is received by current and former executive officers during the three-year period preceding any requirement to prepare an accounting restatement based on a misstated financial performance measure. Smaller reporting companies, emerging growth companies, foreign private issuers, and controlled companies will not be exempt from compliance with the Final Rules.
In the near term, new Rule 10D-1 of the Securities Exchange Act of 1934, as amended (the Exchange Act), instructs the NYSE and NASDAQ to revise their listing standards to require listed public companies to establish, adopt, and abide by a written clawback policy mandating the recovery of any excess incentive-based compensation (i.e., compensation that is based upon attaining a specific financial reporting measure) that is received by current or former executive officers in the event that the company needs to prepare an accounting restatement due to material noncompliance with a financial reporting requirement under applicable securities law. Affected companies will be required to file their clawback policies with, and provide certain disclosures in, their annual reports and certain other public filings.
The Final Rules require each exchange to file its proposed revised listing standards within 90 days of the publication date of the rules, i.e., February 26, 2023, and the proposed revised listing standards must be effective by the first anniversary of the publication date, i.e., November 28, 2023. This means that, on the date that the listing standards become effective (which may be before November 28, 2023), all incentive-based compensation received by executive officers on or after such date must be subject to a compliant clawback policy, and all disclosures required by the Final Rules must be included in all applicable SEC filings required on or after that date. The latest date for companies to adopt a compliant clawback policy is 60 days after the revised listing standards become effective, which, at the latest, could be January 27, 2024, assuming that the applicable exchange’s revised listing standards do not have an earlier effective date. Companies should monitor developments regarding the revision of existing listing standards, as the dates noted are the latest possible dates.
The Final Rules are significantly more expansive than the prior rules adopted under the Sarbanes-Oxley Act of 2002, which require the recoupment of erroneously paid compensation to the CEO and CFO for material restatements resulting from misconduct. Under the Final Rules, clawbacks will be required for more types of restatements, including restatements that are not material (what the SEC calls “little r” restatements), in addition to those restatements that correct errors that are material to previously issued financial statements, i.e., “big R” restatements. Little r restatements correct errors that are not material to previously issued financial statements but would result in a material misstatement if (i) the errors were left uncorrected in the current report or (ii) the error correction was recognized in the current period. A finding of fault will not be necessary in order to trigger the obligation to recover compensation, and companies will be prohibited from indemnifying affected executive officers against the loss of erroneously awarded compensation. Further, the new rules will apply to more executives, i.e., all Section 16 officers, than are covered under most existing policies.
For purposes of the Final Rules, the definition of “executive officer” is the same as that found in Rule 16a-1(f) of the Exchange Act and includes a company’s president; principal financial officer; principal accounting officer (or, if none, the controller); any vice president of the company in charge of a principal business unit, division or function; and any officer who performs a policy-making function.
The company’s recovery shall be limited to any excess amount “received” during the three completed fiscal years prior to the date when the company became required to prepare the accounting restatement. Under the Final Rules, the term “received” is intended to mean that the applicable financial reporting measure connected to the incentive compensation has been satisfied and the incentive compensation has been earned, even if not yet paid, such that a bonus award would be deemed received in the fiscal year it was earned on the achievement of the performance measure, even if it was not actually paid until the following year. The clawback amount (on a pre-tax basis) is the difference between the incentive-based compensation received by the executives and the amount that would have been received based on the required restatement.
There are limited exceptions to the recovery requirement due to impracticability where the company has already made a reasonable attempt to recover the excess compensation and (i) direct third-party expenses incurred to assist in enforcing the policy would exceed the amount to be recovered, (ii) the company receives an opinion of home country counsel advising that the recovery would violate home country laws that predated the new rule, or (iii) the recovery would likely cause a tax-qualified retirement plan to fail to meet IRS requirements.
New disclosure requirements related to the Final Rules were also adopted in amendments to Item 601(b), Item 402, and Item 404(a) of Regulation S-K as well as to the cover pages of Forms 10-K, 40-F, 20-F, and, for listed funds, Form N-CSR, which require reporting the adoption and compliance with the clawback policy in annual reports, proxy statements, and information statements. These disclosures will need to be tagged using Inline XBRL. Under new Item 601(b)(97) of Regulation S-K, affected companies will need to file a copy of their clawback policy as an exhibit to their Annual Report on Form 10-K. Under new Item 402(w) of Regulation S-K, to the extent that an accounting restatement becomes necessary, a company will need to disclose the date when it became required to issue an accounting restatement, the amount of excess compensation that was awarded, an explanation of how the excess amount was calculated, how much of the excess amount had not been recovered as of the end of the last completed fiscal year, and an explanation as to any impracticality that precludes its recovery.
A company will be subject to delisting if it does not establish and comply with a clawback policy that meets the requirements of its exchange’s listing standards. As such, companies listed on the NYSE or the NASDAQ are strongly encouraged to begin the process of preparing and implementing a clawback policy for incentive-based executive compensation, determine whether they need to amend any of their current policies in order to comply with the Final Rule’s requirements, confirm which executive officers will be subject to the policy (including both current and former officers), and consider how the Final Rules may affect their existing compensation plans or accounting practices and what measures could reasonably be taken to recover any such compensation. While companies will not be required to adopt a clawback policy, or amend an existing one, to comply with the new rules until after the exchanges publish final revised listing standards implementing Rule 10D-1 and such standards become effective, companies can and should begin the process of evaluating their current circumstances and planning accordingly.
Published February 23, 2023 in the New York Law Journal