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What's Market: Clawback Provisions in Executive Employment Agreements
Practical Law Legal Update 9-583-0866 (Approx. 7 pages)
What's Market: Clawback Provisions in Executive Employment Agreements
by Practical Law Employee Benefits & Executive Compensation
| Published on 30 Sep 2014 • USA (National/Federal) |
A description of the Dodd-Frank Act's requirement that companies listed on a national securities exchange adopt a clawback policy and a sample clawback policy that is intended to meet the Dodd-Frank Act's requirements. This Legal Update also includes a sampling of clawback provisions in recent publicly filed executive employment agreements.
Section 954 of the Dodd-Frank Act added Section 10D to the Securities Exchange Act of 1934, which requires companies listed on a national securities exchange to implement a clawback policy. The policy must allow the company to recover incentive-based compensation paid:
- To its current and former executive officers if an accounting restatement is required due to the company's material noncompliance with any financial reporting requirement under securities laws.
- During the three years before the accounting restatement that is in excess of what would have been paid based on the restated financial information.
Many of Section 954's provisions require further explanation and need to be interpreted by the SEC in implementing regulations and the securities exchanges in implementing listing rules and requirements.
Although it has been over four years since the enactment of the Dodd-Frank Act, the SEC has not yet taken the necessary action to implement Section 954, leaving companies divided on whether to:
- Implement an interim policy that meets the requirements of Section 954. (For a clawback policy that is intended to meet Section 954's requirements, see Standard Document, Clawback Policy.)
- Implement an interim policy that is designed to demonstrate a proactive approach to corporate governance but that does not meet the requirements of Section 954.
- Wait for SEC and exchange guidance before adopting a clawback policy.
Whatever it decides, the company should consider addressing the clawback requirement in its executive employment agreements.
For summaries of clawback provisions in recent publicly filed executive employment agreements, use the chart below, which includes a link to each respective executive employment agreement summary and the actual underlying agreement. For additional summaries of clawback provisions in executive employment agreements, see What's Market, Executive Employment Agreements: Detailed Analysis, which covers a variety of executive positions and a diverse group of employers, based on size, industry and geographic location.
EMPLOYMENT AGREEMENT | CLAWBACK PROVISION |
President, Global Corporate, Information & Technology Solutions June 16, 2014 | The executive agrees that the compensation and benefits provided by the employer under the employment agreement or otherwise is subject to recoupment or clawback under any applicable employer clawback or recoupment policy that is generally applicable to the employer's executives, as may be in effect from time to time, or as required by law. |
Chief Executive Officer April 8, 2014 | Any compensation paid or payable to the executive under the employment agreement or any other agreement or arrangement with the employer which is subject to recovery under any law, ordinance, regulation or rule or under any commercially reasonable policy adopted or maintained by the employer on or after the effective date and to comply with any law, ordinance, regulation or rule applicable to the employer on or after the effective date, will be subject to the deductions and recovery as required. |
Chief Executive Officer February 4, 2014 | The executive is subject to the employer's executive compensation recovery policy. |
President and Chief Executive Officer January 13, 2014 | The employment agreement is subject to the employer's clawback and recoupment policy, or any successor policy, including any changes required by the Dodd-Frank Act, and the executive acknowledges that the clawback and recoupment policy applies to compensation and benefits previously provided and that the board has discretion regarding applying the policy to the employment agreement. |
Chief Operating Officer January 13, 2014 | If the employer is required to file an adverse restatement of earnings and the board determines that the executive was involved, or had knowledge of or should have known that the earnings at issue were false or misleading when originally filed and the false or misleading earnings resulted in compensation to executives that otherwise would not have been earned, vested or paid, then the employer will be entitled to certain remedies specified in the employment agreement, including requiring the executive to repay the amount by which the executive's bonus or other cash incentive compensation payments would have been reduced had the employer not relied on the false or misleading financial statements and repay the realized gain or value of certain performance-based equity awards granted to the executive by the employer. In addition, if the executive is or becomes an executive officer subject to the Dodd-Frank Act's incentive compensation repayment requirements, then if required by the Dodd-Frank Act or any of its regulations he will enter into an amendment to the employment agreement or a separate written agreement with the employer to comply with the Dodd-Frank Act and any of its regulations. |
Executive Vice President, General Counsel and Secretary January 10, 2014 | Any incentive-based or other compensation paid to the executive under the employment agreement or any other agreement or arrangement with the employer which is subject to recovery under any law, government regulation or stock exchange listing requirement, will be subject to the deductions and clawback as may be required by law, government regulation or stock exchange listing requirement. |
Chief Executive Officer January 1, 2014 | The staking market share unit award grant certificate attached to the employment agreement in connection with the sign-on equity grant states that all market share units will be subject to any clawback policy adopted by the employer from time to time that applies to all senior executives (including any policy to comply with the Dodd-Frank Act), regardless of whether the policy is adopted after the date on which the market share units are granted, vest or are settled by the issuance of shares of common stock. The separation and release agreement that the executive must sign to receive severance states that, to the extent required by applicable laws, rules under any administrative or other judicial proceeding, and regulations, the employer will be entitled to recoup, and the executive will be required to repay, any payments or benefits pursuant to the release agreement. |
Executive Vice President and Chief Financial Officer December 2, 2013 | Any incentive-based compensation or other amounts paid to the executive pursuant to any and all agreements or arrangements with the employer will be subject to clawback under any employer clawback policy that is uniformly applicable to similarly situated executive officers (including any policy adopted by the employer pursuant to applicable law, government regulation or stock exchange listing requirement). |
Chief Executive Officer July 1, 2013 | The executive's annual incentive award is subject to any employer clawback or recoupment policy that is triggered by the employer's filing of restated financial statements with the SEC, and any other clawback or recoupment to the extent required by law. |
Executive Vice President, Chief Financial Officer June 19, 2013 | The executive must sign a form to comply with Section 954 of the Dodd-Frank Act, which requires the employer to recover from each of its executive officers some or all of the incentive compensation paid to executive officers if the employer must restate its earnings. |
Chief Executive Officer May 20, 2013 | To the extent that the Dodd-Frank Act or any similar federal or state law requires the employer to recoup any erroneously awarded incentive-based compensation paid or granted to the executive, the executive agrees to promptly repay the erroneously awarded incentive compensation on written request. In addition, the executive agrees to be subject to any other compensation clawback arrangement applicable to all executive officers adopted by the board. Compensation paid or payable to the executive will not be cancelled, forfeited, required to be repaid or recouped or otherwise subject to clawback as a result of any conduct by the executive (including engaging in activity in competition with the employer), unless it is pursuant to a compensation clawback arrangement that the employer is required to adopt by applicable law or any applicable stock exchange listing standards or if the conduct also constitutes a material breach of the employment agreement or the severance agreement or would otherwise provide the employer with a right to terminate the executive's employment for cause. |
President and Chief Executive Officer of BBCN Bank April 30, 2013 | The executive is subject to the employer's recoupment policy applicable to senior executives. Subject to the board's discretion, the employer may, to the extent permitted by governing law, require reimbursement or cancellation of any bonus or other incentive compensation, including stock-based compensation, awarded to the executive where all of the following factors are present: the award was predicated on achieving certain financial results that were subsequently the subject of a material restatement, the board determines that the executive engaged in fraud or intentional misconduct that was a substantial contributing cause to the need for the restatement and a lower award would have been made to the executive based on the restated financial results. In each instance, the employer will seek to recover the executive's entire annual bonus payment and the gain from any incentive or stock-based compensation received by the executive within the relevant period, plus a reasonable rate of interest. |