In 2016, the Board adopted a Policy for Recoupment of Incentive Compensation, which is detailed below.
A. INACCURATE RESULTS
The rules of this paragraph shall apply to the CEO, the CFO, those officers required by the Company to provide backup certifications to them for quarterly financial reports, and the Controller (“Covered Officers”) if (1) there is either (a) a restatement of the Company’s financial statements for a fiscal year taken into account in determining a Covered Officer’s incentive compensation (either short-term or long-term), other than a restatement due to changes in accounting principles or applicable law, or (b) it is determined that a metric taken into account in computing the Covered Officer’s short-term or long-term incentive compensation has been materially incorrectly calculated, and (2) the Compensation Committee (“Compensation Committee”) of the Board of Directors determines that the Covered Officer has received an “excess incentive” on account of such incorrect financial statements or inaccurate metrics.
The amount of the excess incentive shall be equal to the difference between the incentive paid or granted to the Covered Officer and the payment or grant that would have been made based on the correct financial results or correct calculation of the applicable performance metric. The requirement to repay the excess incentive shall apply only if the Audit Committee of the Board has taken steps to consider restating the financials, or the Compensation Committee has taken steps to recalculate the performance metric, prior to the end of the third year following the applicable performance year, unless such restatement or recalculation is due to fraud or intentional misconduct by the Covered Officer, in which case this time limitation shall not apply. The Compensation Committee shall take such action, subject to Board of Directors approval and applicable law, as it determines appropriate to recover the excess incentive. Such actions may include recovery of such amount from the Covered Officer from any of the following sources: future payments of incentive compensation, cancellation of outstanding equity awards, future equity awards, gains realized on the exercise of stock options, and direct repayment by the Covered Officer. A Covered Officer’s receipt of a bonus or other incentive award constitutes his or her agreement that, if requested by the Compensation Committee, he or she shall repay to the Company the excess incentive within a reasonable time period, as specified by the Compensation Committee, from the time that he or she is notified by the Compensation Committee of the overpayment. Recoupment under this paragraph shall only apply to the after-tax portion of excess compensation after taking into account all available deductions with respect to the recovery.
B. INTENTIONAL MISCONDUCT
The rules of this paragraph shall apply to all employees, including Covered Officers. In the event of any intentional or knowingly fraudulent or illegal conduct that causes damage to the Company, the Company shall take, in its discretion, such action as it deems necessary to remedy the misconduct and prevent its recurrence. In addition, the Compensation Committee may take such action in its discretion as it determines appropriate, subject to applicable law, to cancel or reduce any outstanding equity compensation awards, incentive compensation awards, or other benefits to which the employee is actually or contingently entitled, in an amount up to the damage to the Company, as determined by the Compensation Committee. This right to recoupment is in addition to any other rights that the Company may have against such employee, including any remedies at law or in equity available to the Company as a consequence of such damages. Application of this paragraph does not preclude the Company from taking any other action to enforce an employee’s obligations to the Company, including termination of employment or institution of civil or criminal proceedings.