The NYSE and Nasdaq have given listed companies more time to adopt their Clawback policy, with the new proposed effective date of their rules being 2 October 2023 with a requirement to adopt the policy by 1 December (subject to SEC approval).
On 3 May 2023, the Securities and Exchange Commission adopted new rules to modernize and enhance the disclosure requirements for repurchases of equity securities by publicly listed companies, often referred to as stock buybacks. Among other changes, the amendments will require issuers to disclose in their periodic reports their daily share repurchase activity for each quarter (replacing the proposed rule that issuers would have to make daily filings of share repurchase activity) and provide certain additional narrative disclosure about their share repurchase programs in periodic reports. The SEC also adopted new Item 408(d), which will require disclosure in issuers’ periodic reports regarding the adoption and/or termination of 10b5-1 trading arrangements during the reporting period.
The SEC adopted final rules relating to Rule 10b5-1 in December 2022, which went into effect on 28 February 2023. The amendments introduce new restrictions on 10b5-1 plans, as well as disclosure requirements to address insider trading and improve public reporting on corporate insiders’ transactions.
With the new rules impacting both reporting companies and persons wishing to avail of themselves of the affirmative defense, internal legal and compliance departments must be familiar with and ready to implement the changes brought by the new rules.
On 26 October 2022, the SEC adopted final incentive compensation clawback rules requiring US-listed issuers to: (i) develop and implement a policy for the recovery of incentive-based compensation that is erroneously “received” by current and former executive officers during the three completed fiscal years immediately preceding the date that the issuer is required to prepare an accounting restatement, and (ii) file that policy as an annual report exhibit and satisfy related disclosure obligations in accordance with SEC rules.