美国证券交易委员会于2022年10月26日发布了最终规定， Listing Standards for Recovery of Erroneously Awarded Compensation (通常称为“追回规则”), to prevent executive officers from retaining excess compensation following an accounting restatement. 的 SEC approved the 上市标准 presented by NASDAQ and the New York Stock Exchange (NYSE) on June 9, 2023将于10月2日生效, 2023. 上市公司将在12月1日之前提交申请, 2023, 那是生效日后的60天, to adopt a clawback policy in compliance with the individual 交换’s 上市标准.
根据追回规则, in the event an 发行人 is required to prepare an accounting restatement due to the material noncompliance with any financial reporting requirement under the securities laws, the 发行人 will recover (clawback) any excess incentive-based compensation that was erroneously awarded to its current or former executive officers based on any misstated financial reporting measure.
追回规则的范围
的 Clawback Rule specifies the excess compensation awarded to executive officers that is subject to clawback, 详情见下表:
| 激发动机的补偿 | 就追回规则而言, incentive-based compensation includes any compensation (including cash bonuses and equity instruments awarded as compensation) that is granted, earned or vested based wholly or in part upon the attainment of any financial reporting measure. |
| 三年回顾期 | 激发动机的补偿 awarded to current or former executive officers during the three-year period preceding the date the 发行人 is required to prepare an accounting restatement is subject to clawback. |
| 执行官 | 执行官 include current (or former) officers or employees who perform(ed) a policy-making function for the 发行人, 通常由发行人的总裁(e.g.首席财务官(e.g.(首席财务官)，首席会计官(e.g., CAO或控制器), 负责主要业务部门的副总裁, 部门或职能(如销售), 行政或财务). |
| 范围的例外 | Limited impracticality exceptions apply only in circumstances where: (i) third-party expenses to enforce recovery would exceed the amount to be recovered and the 发行人 has made a reasonable attempt to recover the excess compensation; (ii) recovery would violate home country law; or (iii) recovery would likely cause an otherwise tax-qualified retirement plan to fail to meet the specified tax-qualification requirements. |
追回规则下的规定何时生效?
的 Clawback Rule shall take effect following its publication in the Federal Register on November 28, 2022, 如下所述:
- 每一个 交换 是否需要在2月26日前提交拟议的上市标准, 2023 (90 days following the publication date in the Federal Register).
- 的 上市标准 必须在11月28日或之前生效, 2023 (one year following the publication date in the Federal Register). 对于纳斯达克和纽约证券交易所来说，生效日期是2023年10月2日.
- 每一个 发行人 must adopt and implement a written recovery policy that is compliant with the SEC’s Clawback Rule no later than sixty (60) days from the effective date of the applicable 上市标准. 纳斯达克和纽交所的合规日期是2023年12月1日.
Issuers will be subject to delisting due to failure to timely adopt a compliant recovery policy and provide the mandated disclosures.
新的政策和披露要求是什么?
每一个 发行人’s written recovery policy must mandate recovery of each executive officer’s excess compensation during the three-year look-back period, regardless of whether the executive officer is at fault or responsible for the misstatement.
Immediately on or after the date the 发行人 adopts its recovery policy, 发行人必须遵守额外的披露要求, including its compensation recovery policies as exhibits to its Form 10-K as well as specified information upon a recovery event.
需要考虑的问题
- How soon does my company need to establish and implement a written recovery policy based on my company’s 交换?
- Has my company had any recent restatements that will result in the recovery of incentive-based compensation based on the three-year look-back period?
- What new processes and controls should my company implement in order to deal with the new policy and disclosure requirements?
- How will my company quantify the potential recovery amount in the event of an accounting restatement?
- How will my company (and auditors) obtain comfort that our incentive-based compensation data for current and former employees is complete and accurate?
- How must my company’s quarter-end and year-end financial close processes be updated to accommodate the Clawback Rule?
我该如何准备??
We understand that navigating existing and emerging financial reporting requirements can be a complex and time-intensive process. Companies should continue to monitor developments related to the 上市标准 on their 交换s and follow the SEC’s current guidance on recovery policy disclosures. CFGI随时准备帮助您符合这些新要求. Our team of experienced professionals will support your capacity to assemble disclosures and draft filings that comply with the new rules. 接触 到我们今天了解更多.