美国证券交易委员会通过最终规则，强制要求实施薪酬追索政策

On October 26, 2022, the Securities and Exchange Commission (SEC) adopted final rules implementing Section 954 of the Dodd-Frank Act by directing national securities exchanges and associations, such as the New York Stock Exchange and Nasdaq, to adopt listing standards that will require listed companies to develop and implement compensation clawback policies.

Under the final rules, listed companies will be required to have written compensation clawback policies that require the recoupment of certain incentive-based compensation received by current or former “executive officers” when an issuer has an accounting restatement. Listed companies will also be required to make certain disclosures about their clawback policies. The listing standards will generally apply to all issuers with a class of securities listed on a national securities exchange or association, including foreign private issuers, controlled companies, smaller reporting companies and emerging growth companies.

The final rules materially expand the scope of the SEC’s original compensation clawback policy proposal published in 2015 as set forth in our client alert at that time. Public companies and their audit and compensation committees, executive officers and outside advisors should begin preparing now to deal with the significant implications of the final rules.

时机

• The national securities exchanges and associations must propose listing standards on clawback policies no later than 90 days after the publication of the final rules in the Federal Register.
• The listing standards must be effective no later than one year after the publication of the final rules in the Federal Register.
• Issuers must adopt compliant clawback policies within 60 days after the effective date of the listing standards.

执行摘要

• 该规则要求，当发行人因重大违反任何财务报告要求而需编制会计重述时，必须启动追索政策。
• 触发重述的情况将包括所谓的“大写R”和“小写r”重述。即，这些情况将涵盖任何为更正先前已发布财务报表中重大错误所需的会计重述，或若该错误在当期更正或未更正，将导致财务报表存在重大错报的情形。
• 该政策将适用于发行人被要求编制会计重述之日前三个已结束财政年度内，现任或前任高管获得的基于激励的薪酬。
• 无论收取补偿的执行管理人员是否存在过失，或该人员是否参与了需重述的财务报表编制工作，这些情况均不影响相关性判断。
• Incentive-based compensation subject to the clawback will include compensation that is granted, earned or vested based wholly or in part upon the attainment of a financial reporting measure. A “financial reporting measure” is a measure determined and presented in accordance with the accounting principles used in preparing the issuer’s financial statements, any measures that are derived wholly or in part from such measures, and stock price or total shareholder return (TSR). Equity awards that vest based solely on continued employment, and that are not granted on the basis of achieving a financial performance goal, will not be subject to the policy.
• 需追回的金额为高管实际获得的激励性薪酬与根据重述数据计算应得金额之间的差额，该差额以税前为基准确定。若激励薪酬基于股价或总股东回报率计算，可采用合理估计值来核算超额部分。
• The issuer will be required to enforce the clawback policy except in narrowly defined exceptional circumstances where the direct expense paid to a third party to enforce the policy would exceed the amount of the recovery, the recovery would be illegal under home country law or the recovery would likely cause an otherwise tax-qualified, broad-based retirement plan to fail to meet certain tax qualification requirements.
• Issuers will not be allowed to indemnify officers or pay for insurance to cover amounts that are clawed back
• The issuer will need to file its clawback policy as an exhibit to its annual report, and issuers will be required to disclose certain information about their enforcement of their clawback policies in proxy statements and Forms 10-K in specified circumstances.
• 在10-K表格的封面页将新增两项复选框，分别用于标注：10-K表格所含财务报表是否反映了对先前已发布财务报表的错误更正；以及这些错误更正中是否存在需要对高管获得的激励性薪酬进行追溯调整分析的重述事项。

追索政策必备要素

根据新颁布的第10D-1条规则强制实施的回扣政策，其适用范围和实施方式必须满足以下各项要求：

1.  Type of Restatement Triggering Recovery of Compensation.  The clawback policy will be triggered when an issuer is required to prepare an accounting restatement due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws. Triggering restatements will include any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements, or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period. Thus, in a change from the proposed rule, under the final rule, triggering restatements will include both so-called “Big R” restatements and “little r” restatements.” In determining when a restatement is triggered, the SEC reminded issuers that SEC staff has provided guidance on making materiality determinations in Staff Accounting Bulletin No. 99, Materiality, and Staff Accounting Bulletin No. 108, Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements.

Rule 10D-1 does not define “accounting restatement” or “material noncompliance” as existing accounting standards and guidance set forth the meaning of those terms. Under current accounting standards, certain changes would not constitute an error correction, including the following:  retrospective application of a change in accounting principle; retrospective revision to reportable segment information due to a change in internal organization structure; retrospective reclassification due to a discontinued operation; retrospective application of a change in reporting entity; retrospective adjustment to provisional amounts in connection with a prior business combination; and retrospective revision for stock splits, reverse stock splits, stock dividends or other changes in capital structure.

2.  Individuals Covered.  The clawback policy will be required to apply to any individual who served as an executive officer at any time during the performance period that applied to the incentive-based compensation that the individual received. Accordingly, the policy will apply to both current and former executive officers.

Rule 10D-1 uses a definition of “executive officer” similar to the definition under Rule 16a-1(f) of the Securities Exchange Act of 1934 (Exchange Act), rather than the definition of “executive officer” under Rule 3b-7 under the Exchange Act. This definition generally includes the issuer’s president, principal financial officer, principal accounting officer (or, if none, the controller), any vice-president in charge of a principal business unit, division or function, and any other officer who performs a policy-making function, or any other person who performs similar policy-making functions.

It will not be relevant whether there is any fault on the part of the executive officer or whether the executive officer was involved in preparing the financial statements. Companies will not be able to indemnify officers or pay for insurance to cover amounts that are clawed back.

3.  Definition of “Incentive-Based Compensation” Subject to Recovery.  The clawback policy will be required to apply to “incentive-based compensation,” which is defined as compensation that is granted, earned or vested based wholly or in part upon the attainment of a “financial reporting measure.” “Financial reporting measure” is defined as a measure that is determined and presented in accordance with the accounting principles used in preparing financial statements, and any measures derived from such measures. This includes non-GAAP financial measures and other measures not presented in the financial statements or SEC filings. “Financial reporting measure” is also defined to include stock price and total shareholder return (TSR).

The SEC noted that “incentive-based compensation” is to be determined in a principles-based manner so that new forms of compensation and new measures of performance will be captured. The SEC provided in the adopting release a non-exhaustive list of examples of “incentive compensation”:

• 非股权激励计划奖励，其获得完全或部分基于满足财务报告指标的绩效目标；
• 从“奖金池”中支付的奖金，其规模完全或部分取决于是否达到财务报告指标的绩效目标；
• 基于满足财务报告指标绩效目标的其他现金奖励；
• 限制性股票、限制性股票单位、绩效股份单位、股票期权及股票增值权（SARs），其授予或归属完全或部分基于满足财务报告指标的绩效目标；以及
• Proceeds received upon the sale of shares acquired through an incentive plan that were granted or vested based wholly or in part on satisfying a financial reporting measure performance goal.

美国证券交易委员会还提供了不属于“激励性薪酬”的薪酬示例：

• 薪酬（除非加薪完全或部分基于满足财务报告指标的绩效目标）；
• 非基于满足财务报告指标绩效目标而确定的“奖金池”支付的酌情奖金；
• 仅在满足一项或多项主观标准或完成特定雇佣期后支付的奖金；
• 仅在满足战略或运营指标后方可获得的非股权激励计划奖励；以及
• 股权奖励的授予不以达成任何财务报告指标的绩效目标为条件，其归属仅取决于持续受雇或达成非财务报告指标。

4.  Time Periods Covered.  The clawback policy will apply to incentive-based compensation “received” during the three fiscal years (and certain transition periods resulting from a change in fiscal year) preceding the date on which the issuer is required to prepare the accounting restatement. Compensation will be deemed “received” when the performance condition is satisfied, even if the compensation is not actually paid or granted until a later date.  The SEC noted in the adopting release that the date of receipt of the compensation depends on the terms of the award and provided the following examples:

• 若奖励的授予完全或部分基于财务报告指标绩效目标的达成，则该奖励应视为在该指标达成当期获得。
• 若股权奖励仅在满足财务报告指标的业绩条件后方可归属，则该奖励应视为在归属当期获得。
• 非股权激励计划奖励应视为在高管因达成相关财务报告指标绩效目标而获得奖励的财政年度内收到，而非在奖励实际支付的后续日期收到；
• 在满足财务报告指标绩效目标时获得的现金奖励，应视为在该指标达成当期财政年度内获得。

The date on which the issuer is required to prepare the accounting restatement will be the earlier of (a) the date the board, committee or authorized officer concludes, or should reasonably have concluded, that the issuer is required to prepare an accounting restatement due to material noncompliance with any financial reporting requirement or (b) the date a court, regulatory or other legally authorized body orders a restatement. The SEC noted in the adopting release that the determination an issuer is required to prepare an accounting restatement may occur before the precise amount of the error has been determined. For an accounting restatement for which an issuer is required to file an Item 4.02(a) Form 8-K, the conclusion that the issuer is required to prepare an accounting restatement is expected to coincide with the occurrence of the event disclosed in the Form 8-K. Furthermore, in determining when there should reasonably have been a conclusion to prepare an accounting restatement, the SEC noted that an issuer would have to consider any notice it may receive from its auditor that previously issued financial statements contain a material error.

5.  Amount of Recovery.  The amount of the recovery will be the amount by which the incentive-based compensation the executive officer actually received exceeds the amount the executive officer would have received based on the restated numbers. The amount of the recovery will be calculated on a pre-tax basis. Where the incentive-based compensation is based on stock price or TSR, reasonable estimates can be used to calculate the excess amount, but the issuer must maintain documentation of the determination of the reasonable estimate and provide the documentation to its national securities exchange or association.

The SEC noted that the definition of erroneously awarded compensation is intended be applied in a principles-based manner but provided the following guidance:

• 对于现金奖励，错误授予的补偿金额是指已收到的现金奖励金额（无论是一次性支付还是分期支付）与根据重述财务报告标准应收金额之间的差额。
• 对于从奖金池中支付的现金奖励，错误发放的补偿金额将按比例计入因应用重述财务报告标准而减少的奖金池总额所导致的短缺部分。
• 对于股权奖励，若在追回时点仍持有相关股份、期权或股票增值权（SARs），则错误授予的薪酬应为：实际获得的证券数量超过经修订财务报告标准应获数量的部分（或该超额数量的价值）。 若期权或股票增值权已被行权，但标的股票尚未出售，则错误授予的薪酬应为超额期权或股票增值权对应的标的股票数量（或其价值）。

Amounts recovered from the executive under Section 304 of the Sarbanes-Oxley Act of 2002 may be credited as a reduction in the amount required to be recovered under the Rule 10D-1 clawback, but the adopting release states that recovery under Rule 10D-1 will not preclude recovery under the Sarbanes-Oxley Act to the extent any applicable amounts have not been reimbursed to the issuer.

6.  Recovery Mandatory Unless Impracticable for One of Three Reasons.  Recovery of incentive-based compensation subject to the clawback will be mandatory unless the issuer’s compensation committee comprising independent directors, or a majority of independent directors in the absence of a committee, determine that recovery is “impracticable” for one of the following three reasons:

• The direct expense paid to a third party to assist in enforcing the policy would exceed the amount to be recovered. This basis for impracticability would be available only after the issuer has made a reasonable attempt to recover compensation, documented such attempt and provided the documentation to its national securities exchange or association.
• 若该国法律在最终规则于《联邦公报》公布之前已生效，则追索行为将违反其母国法律。此项不可行依据仅在发行人获得母国法律顾问关于该违反行为的法律意见书，并向其国家证券交易所提交该意见书后方可适用。
• 此类恢复操作可能导致原本符合税收资格的广泛退休计划无法满足经修订的《1986年国内税收法》第401(a)(13)条或第411(a)条的规定。

董事会将被允许在合理限制范围内，就追偿方式行使酌情权。

The recovery, however, must be effectuated reasonably promptly. The rule does not define “reasonable promptness,” but the SEC noted in the adopting release its expectation that the issuer and its directors will pursue the most appropriate balance of cost and speed in determining the appropriate means to seek recovery in light of their fiduciary duty to safeguard the assets of the issuer, taking into account the time value of money. The SEC also noted in the adopting release that an issuer may be acting reasonably promptly in establishing a deferred payment plan that allows repayment as soon as possible without unreasonable economic hardship to the executive officer.

追索权政策披露

最终规则包含若干与追索政策相关的披露要求。发行人对披露要求的遵守情况将成为上市标准的组成部分。

1.  Filing of Clawback Policy.  The issuer will need to file the clawback policy as an exhibit to its annual report on Form 10-K.

2.  Proxy Statement/Annual Report Disclosures.  The rule amends Item 402 of Regulation S-K to require disclosure by listed issuers if at any time during or after the last completed fiscal year the issuer was required to prepare an accounting restatement that required recovery of excess incentive-based compensation or, as of the end of the last completed fiscal year, there was an outstanding balance of excess incentive-based compensation attributable to a prior restatement.

根据第402项要求披露的内容将包括：

• 对于每次重述，应披露：(a)发行人被要求编制重述文件的日期；(b)因重述产生的错误授予薪酬的总金额，包括该金额的计算分析；(c)若财务报告指标涉及股价或总股东回报率，则需说明确定重述相关错误授予薪酬时采用的估计值及该估计方法的说明； (d) 截至最近已结束年度末仍未清偿的错误授予薪酬总额；(e) 若错误授予薪酬金额尚未确定，则说明该事实及未确定原因。
• 若追偿不可行，则应披露放弃追偿的金额（分别针对每位现任及前任指定高管，以及所有其他高管作为整体），并简要说明发行人决定不进行追偿的原因。
• 对于每位现任及前任高管，自发行人确定应付金额之日起已逾期180天或更长时间的未收回超额薪酬金额。

若发行人在其最近一个已结束的会计年度期间或之后被要求编制重述财务报表，且根据发行人政策认定无需追回薪酬，则发行人必须简要说明为何适用该政策导致了该结论。

只要发行人就回扣安排提供了新的第402项披露，则无需另行根据第404(a)项就该回扣活动披露关联方交易信息。

The Item 402 disclosure will need to be provided in XBRL format, but will be required only in annual reports on Form 10-K and proxy statements whenever other Item 402 disclosure is required. The disclosure, therefore, will not be required in registration statements under the Securities Act of 1933. In addition, the disclosure will not be deemed incorporated by reference into any filing under the Securities Act of 1933 unless specifically incorporated by reference.

For any registered management investment company subject to Rule 10D-1, information mirroring the new Item 402 disclosure will need to be included in annual reports on Form N-CSR and in proxy statements and information statements relating to the election of directors. Foreign private issuers will be required to provide the new Item 402 disclosure in annual reports filed with the SEC under Section 13(a) of the Exchange Act.

The Summary Compensation Table rules are amended to require that any amounts recovered under a clawback policy reduce the amount reported in the table for the fiscal year in which the original payment was reported and be identified in a footnote.

3.  Form 10-K Checkboxes.  The rule adds two new checkboxes to the cover page of Form 10-K relating to whether the financial statements included in the Form 10-K reflect the correction of an error to previously issued financial statements and whether any of those error corrections are restatements that require a recovery analysis of incentive-based compensation received by executive officers.

最终规则生效时间

The national securities exchanges will have to file with the SEC proposed listing standards implementing the rule no later than 90 days after the SEC final rules are published in the Federal Register. Those new listing standards will need to become effective no later than one year after the publication of the SEC final rules.

Issuers then will need to adopt clawback policies no later than 60 days after the exchanges’ listing standards become effective. The clawback policies will need to apply to all incentive-based compensation received by current or former executive officers (after beginning service as an executive officer and who served as an executive officer during the applicable performance period) on or after the effective date of the applicable listing standard. The clawback policy will be expected to apply to such compensation even if the compensation is received under a pre-existing contract or arrangement.

Compliance with the new Item 402 disclosure rule will be required for all applicable filings with the SEC after the effective date of the exchanges’ listing standards.

Recommended Actions for Listed Companies

• Review any existing clawback policies to determine what revisions will be needed to comply with the final rules and listing standards. Among other items, revisions may be needed relating to the individuals covered, the types of compensation covered, the types of restatements that trigger the policy, the lookback period of the policy, the required mandatory nature of clawbacks and the exceptions to mandated clawbacks. While we do not expect the national securities exchanges to add any additional requirements in their listing standards, it is possible that they may do so, and therefore issuers should not finalize their policies until the listing standards are published.
• 审查现有的基于激励的薪酬安排以及任何其他受激励薪酬支付影响或需要支付激励薪酬的计划或协议，以确定是否存在追回薪酬的现有合同权利，并考虑是否修改相关安排以允许未来追回薪酬。
• Consider the impacts on internal control over financing reporting, quarterly financial reporting closing and disclosure committee processes, determinations of when a restatement is required, procedures and controls through which clawback policies will be implemented if there is a restatement, and compensation program design. Audit committees and compensation committees will need to work together closely on these items.