[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Notices]
[Pages 15495-15499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05033]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97053; File No. SR-NYSEARCA-2023-20]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
of Proposed Rule Change To Adopt New NYSE Arca Rule 5.3-E(p) To 
Establish Listing Standards Related to Recovery of Erroneously Awarded 
Incentive-Based Executive Compensation

March 7, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that on February 24, 2023, NYSE Arca, Inc. (``NYSE Arca'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.

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[[Page 15496]]

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to adopt new Rule 5.3-E(p) to require issuers 
to develop and implement a policy providing for the recovery of 
erroneously awarded incentive-based compensation received by current or 
former executive officers. The proposed rule change is available on the 
Exchange's website at www.nyse.com, at the principal office of the 
Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    On October 26, 2022, the Securities and Exchange Commission 
(``SEC'') adopted a new rule and rule amendments \4\ to implement 
Section 954 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act of 2010 (``Dodd-Frank Act''),\5\ which added Section 10D 
to the Act.\6\ In accordance with Section 10D of the Act, the final 
rules direct the national securities exchanges and associations that 
list securities to establish listing standards that require each issuer 
to develop and implement a policy providing for the recovery, in the 
event of a required accounting restatement, of incentive-based 
compensation received by current or former executive officers where 
that compensation is based on the erroneously reported financial 
information. The listing standards must also require the disclosure of 
the policy. Additionally, the final rules require a listed issuer to 
file the policy as an exhibit to its annual report and to include other 
disclosures in the event a recovery analysis is triggered under the 
policy.
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    \4\ See Release Nos. 33-11126; 34-96159; IC- 34732; File No. S7-
12-15; 87 FR 73076 (November 28, 2022).
    \5\ 2 Public Law 111-203, 124 Stat. 1900 (2010).
    \6\ 15 U.S.C. 78j-4.
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    Specifically, the rule amendments the SEC adopted pursuant to 
Section 10D of the Act \7\ require specific disclosure of the listed 
issuer's policy on recovery of incentive-based compensation and 
information about actions taken pursuant to such recovery policy. Rule 
10D-1 requires listing exchanges to require that listed issuers file 
all disclosures with respect to their recovery policies in accordance 
with the requirements of the Federal securities laws, including the 
disclosures required by the applicable SEC filings. The rule amendments 
require listing exchanges to require each listed issuer to: (i) file 
their written recovery policies as exhibits to their annual reports; 
(ii) indicate by check boxes on their annual reports whether the 
financial statements included in the filings reflect correction of an 
error to previously issued financial statements and whether any of 
those error corrections are restatements that required a recovery 
analysis; and (iii) disclose any actions they have taken pursuant to 
such recovery policies.
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    \7\ See footnote 5 supra.
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    Rule 10D-1 requires that the issuer will recover reasonably 
promptly the amount of erroneously awarded incentive-based compensation 
in the event that the issuer is required to prepare an accounting 
restatement due to the material noncompliance of the issuer with any 
financial reporting requirements under the securities laws. In the 
adopting release for Rule 10D-1, the SEC states that the issuer and its 
directors and officers must comply with this requirement in a manner 
that is consistent with the exercise of their fiduciary duty to 
safeguard the assets of the issuer (including the time value of any 
potentially recoverable compensation). The issuer's obligation to 
recover erroneously awarded incentive based compensation reasonably 
promptly will be assessed on a holistic basis with respect to each such 
accounting restatement prepared by the issuer. In evaluating whether an 
issuer is recovering erroneously awarded incentive-based compensation 
reasonably promptly, the Exchange will consider whether the issuer is 
pursuing an appropriate balance of cost and speed in determining the 
appropriate means to seek recovery, and whether the issuer is securing 
recovery through means that are appropriate based on the particular 
facts and circumstances of each executive officer that owes a 
recoverable amount.
    Rule 10D-1 became effective on January 27, 2023. Exchanges are 
required to file proposed listing standards no later than February 27, 
2023, and the listing standards must be effective no later than 
November 28, 2023. Issuers subject to such listing standards will be 
required to adopt a recovery policy no later than 60 days following the 
date on which the applicable listing standards become effective.
Proposed NYSE Arca Rule
    NYSE Arca proposes to comply with Rule 10D-1 by adopting proposed 
Rule 5.3-E(p). Proposed Rule 5.3-E(p) is designed to conform closely to 
the applicable language of Rule 10D-1. Proposed Rule 5.3-E(p) would 
prohibit the initial or continued listing of any security of an issuer 
that is not in compliance with the requirements of any portion thereof.
Implementation
    Proposed Rule 5.3-E(p)(B) would establish the timeframe within 
which listed companies must comply with proposed Rule 5.3-E(p). 
Specifically:
     Each listed issuer must adopt the recovery policy required 
by proposed Rule 5.3-E(p) (``Recovery Policy'') no later than 60 days 
from the adoption of the proposed listing standard (``Effective 
Date'').
     Each listed issuer must comply with its Recovery Policy 
for all incentive-based compensation Received (as such term is defined 
in proposed Rule 5.3-E(p)(E) as set forth below) by executive officers 
on or after the Effective Date that results from attainment of a 
financial reporting measure based on or derived from financial 
information for any fiscal period ending on or after the Effective 
Date.
     Each listed issuer must provide the required disclosures 
in the applicable SEC filings required on or after the Effective Date.
Requirements of Proposed Rule
    The requirements of proposed Rule 5.3-E(p) would be as follows:
     The issuer must adopt and comply with a written Recovery 
Policy providing that the issuer will recover reasonably promptly the 
amount of erroneously awarded incentive-based compensation in the event 
that the 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, including any required 
accounting restatement to correct an error in

[[Page 15497]]

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.
     The issuer's Recovery Policy must apply to all incentive-
based compensation received by a person:
    [cir] After beginning service as an executive officer;
    [cir] Who served as an executive officer at any time during the 
performance period for that incentive-based compensation;
    [cir] While the issuer has a class of securities listed on a 
national securities exchange or a national securities association; and
    [cir] During the three completed fiscal years immediately preceding 
the date that the issuer is required to prepare an accounting 
restatement as described in paragraph (C)(1) of proposed Rule 5.3-E(p). 
In addition to these last three completed fiscal years, the Recovery 
Policy must apply to any transition period (that results from a change 
in the issuer's fiscal year) within or immediately following those 
three completed fiscal years. However, a transition period between the 
last day of the issuer's previous fiscal year end and the first day of 
its new fiscal year that comprises a period of nine to 12 months would 
be deemed a completed fiscal year. An issuer's obligation to recover 
erroneously awarded compensation is not dependent on if or when the 
restated financial statements are filed.
     For purposes of determining the relevant recovery period, 
the date that an issuer is required to prepare an accounting 
restatement as described in paragraph (C)(1) of Rule 5.3-E(p) is the 
earlier to occur of:
    [cir] The date the issuer's board of directors, a committee of the 
board of directors, or the officer or officers of the issuer authorized 
to take such action if board action is not required, concludes, or 
reasonably should have concluded, that the issuer is required to 
prepare an accounting restatement as described in paragraph (C)(1) of 
proposed Rule 5.3-E(p); or
    [cir] The date a court, regulator, or other legally authorized body 
directs the issuer to prepare an accounting restatement as described in 
paragraph (C)(1) of proposed Rule 5.3-E(p).
     The amount of incentive-based compensation that must be 
subject to the issuer's Recovery Policy (``erroneously awarded 
compensation'') is the amount of incentive-based compensation received 
that exceeds the amount of incentive-based compensation that otherwise 
would have been received had it been determined based on the restated 
amounts, and must be computed without regard to any taxes paid. For 
incentive-based compensation based on stock price or total shareholder 
return, where the amount of erroneously awarded compensation is not 
subject to mathematical recalculation directly from the information in 
an accounting restatement:
    [cir] The amount must be based on a reasonable estimate of the 
effect of the accounting restatement on the stock price or total 
shareholder return upon which the incentive-based compensation was 
received; and
    [cir] The issuer must maintain documentation of the determination 
of that reasonable estimate and provide such documentation to the 
Exchange.
     The issuer must recover erroneously awarded compensation 
in compliance with its Recovery Policy except to the extent that the 
conditions in one of the three bullets set forth below are met, and the 
issuer's committee of independent directors responsible for executive 
compensation decisions, or in the absence of such a committee, a 
majority of the independent directors serving on the board, has made a 
determination that recovery would be impracticable.
    [cir] The direct expense paid to a third party to assist in 
enforcing the policy would exceed the amount to be recovered. Before 
concluding that it would be impracticable to recover any amount of 
erroneously awarded compensation based on expense of enforcement, the 
issuer must make a reasonable attempt to recover such erroneously 
awarded compensation, document such reasonable attempt(s) to recover, 
and provide that documentation to the Exchange.
    [cir] Recovery would violate home country law where that law was 
adopted prior to November 28, 2022. Before concluding that it would be 
impracticable to recover any amount of erroneously awarded compensation 
based on violation of home country law, the issuer must obtain an 
opinion of home country counsel, acceptable to the Exchange, that 
recovery would result in such a violation, and must provide such 
opinion to the Exchange.
    [cir] Recovery would likely cause an otherwise tax-qualified 
retirement plan, under which benefits are broadly available to 
employees of the registrant, to fail to meet the requirements of 26 
U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and regulations thereunder.
     The issuer is prohibited from indemnifying any executive 
officer or former executive officer against the loss of erroneously 
awarded compensation.
Disclosure in SEC Filings
    The issuer must file all disclosures with respect to such Recovery 
Policy in accordance with the requirements of the Federal securities 
laws, including the disclosure required by the applicable Commission 
filings.
General Exemptions
    The requirements of proposed Rule 5.3-E(p) would not apply to the 
listing of:
     A security futures product cleared by a clearing agency 
that is registered pursuant to section 17A of the Act \8\ or that is 
exempt from the registration requirements of section 17A(b)(7)(A); \9\
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    \8\ 15 U.S.C. 78q-1.
    \9\ 15 U.S.C. 78q-1(b)(7)(A).
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     A standardized option, as defined in 17 CFR 240.9b-
1(a)(4), issued by a clearing agency that is registered pursuant to 
section 17A of the Act; \10\
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    \10\ 15 U.S.C. 78q-1.
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     Any security issued by a unit investment trust, as defined 
in 15 U.S.C. 80a-4(2); (4) Any security issued by a management company, 
as defined in 15 U.S.C. 80a-4(3), that is registered under section 8 of 
the Investment Company Act of 1940,\11\ if such management company has 
not awarded incentive-based compensation to any executive officer of 
the company in any of the last three fiscal years, or in the case of a 
company that has been listed for less than three fiscal years, since 
the listing of the company.
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    \11\ 15 U.S.C. 80a-8.
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Definitions Under Proposed Rule 5.3-E(p)
    Unless the context otherwise requires, the following definitions 
apply for purposes of proposed Rule 5.3-E(p):
    Executive Officer. An executive officer is the issuer's president, 
principal financial officer, principal accounting officer (or if there 
is no such accounting officer, the controller), any vice-president of 
the issuer in charge of a principal business unit, division, or 
function (such as sales, administration, or finance), any other officer 
who performs a policy-making function, or any other person who performs 
similar policy-making functions for the issuer. Executive officers of 
the issuer's parent(s) or subsidiaries are deemed executive officers of 
the issuer if they perform such policy making functions for the issuer. 
In addition, when the issuer is a limited partnership, officers or 
employees of the general partner(s) who perform policy-making functions

[[Page 15498]]

for the limited partnership are deemed officers of the limited 
partnership. When the issuer is a trust, officers, or employees of the 
trustee(s) who perform policy-making functions for the trust are deemed 
officers of the trust. Policy-making function is not intended to 
include policy-making functions that are not significant. 
Identification of an executive officer for purposes of Rule 5.3-E(p) 
would include at a minimum executive officers identified pursuant to 17 
CFR 229.401(b).
    Financial reporting measures. Financial reporting measures are 
measures that are determined and presented in accordance with the 
accounting principles used in preparing the issuer's financial 
statements, and any measures that are derived wholly or in part from 
such measures. Stock price and total shareholder return are also 
financial reporting measures. A financial reporting measure need not be 
presented within the financial statements or included in a filing with 
the Commission.
    Incentive-based compensation. Incentive-based compensation is any 
compensation that is granted, earned, or vested based wholly or in part 
upon the attainment of a financial reporting measure.
    Received. Incentive-based compensation is deemed received in the 
issuer's fiscal period during which the financial reporting measure 
specified in the incentive-based compensation award is attained, even 
if the payment or grant of the incentive-based compensation occurs 
after the end of that period.
Delisting
    The Exchange proposes to adopt new Rule 5.3-E(p)(F) 
(``Noncompliance with Rule 5.3-E(p) (Erroneously Awarded 
Compensation)'').
    Proposed Rule 5.3-E(p)(F)(i) would provide that in any case where 
the Exchange determines that a listed issuer has not recovered 
erroneously-awarded compensation as required by its Recovery Policy 
reasonably promptly after such obligation is incurred, trading in all 
listed securities of such listed issuer would be immediately suspended 
and the Exchange would immediately commence delisting procedures with 
respect to all such listed securities. Rule 10D-1 does not specify the 
time by which the issuer must complete the recovery of excess 
incentive-based compensation, NYSE Arca would however determine whether 
the steps an issuer is taking constitute compliance with its 
compensation Recovery Policy. A listed issuer will be subject to the 
procedures outlined in Rule 5.5-E(a) with respect to such a delisting 
determination.
    Proposed Rule 5.3-E(p)(F)(ii) would deem a listed issuer to be 
below standards in the event of any failure by such listed issuer to 
adopt its required Recovery Policy by the Effective Date (a ``Late 
Recovery Policy Adoption Delinquency''). The listed issuer would be 
required to notify the Exchange in writing within five days of the 
Effective Date if it fails to adopt its Recovery Policy by that date.
    Upon the occurrence of a Late Recovery Policy Adoption Delinquency, 
the Exchange will promptly send written notification (the ``Late 
Recovery Policy Adoption Delinquency Notification'') to a listed issuer 
of the procedures set forth below. Within five days of the date of the 
Late Recovery Policy Adoption Delinquency Notification, the listed 
issuer will be required to (a) contact the Exchange to discuss the 
status of the delayed Recovery Policy and (b) issue a press release 
disclosing the occurrence of the Late Recovery Policy Adoption 
Delinquency, the reason for the Late Recovery Policy Adoption 
Delinquency and, if known, the anticipated date such Late Recovery 
Policy Adoption Delinquency will be cured. If the listed issuer has not 
issued the required press release within five days of the date of the 
Late Recovery Policy Adoption Delinquency Notification, the Exchange 
will issue a press release stating that the issuer has incurred a Late 
Recovery Policy Adoption Delinquency.
    During the six-month period from the date of the Late Recovery 
Policy Adoption Delinquency (the ``Initial Late Recovery Policy 
Adoption Cure Period''), the Exchange will monitor the listed issuer 
and the status of the delayed Recovery Policy, including through 
contact with the company, until the Late Recovery Policy Adoption 
Delinquency is cured. If the listed issuer fails to cure the Late 
Recovery Policy Adoption Delinquency within the Initial Late Recovery 
Policy Adoption Cure Period, the Exchange may, in the Exchange's sole 
discretion, allow the company's securities to be traded for up to an 
additional six-month period (the ``Additional Late Recovery Policy 
Adoption Cure Period'') depending on the company's specific 
circumstances. If the Exchange determines that an Additional Late 
Recovery Policy Adoption Cure Period is not appropriate, suspension and 
delisting procedures will commence in accordance with the procedures 
set out in Rule 5.5-E(a). Notwithstanding the foregoing, however, the 
Exchange may in its sole discretion decide (i) not to afford a listed 
issuer any Initial Late Recovery Policy Adoption Cure Period or 
Additional Late Recovery Policy Adoption Cure Period, as the case may 
be, at all or (ii) at any time during the Initial Late Recovery Policy 
Adoption Cure Period or Additional Late Recovery Policy Adoption Cure 
Period, to truncate the Initial Cure Period or Additional Cure Period, 
as the case may be, and immediately commence suspension and delisting 
procedures if the listed issuer is subject to delisting pursuant to any 
other provision of the Rules, including if the Exchange believes, in 
the Exchange's sole discretion, that continued listing and trading of a 
company's securities on the Exchange is inadvisable or unwarranted. The 
Exchange may also commence suspension and delisting procedures without 
affording any cure period at all or at any time during the Initial Late 
Recovery Policy Adoption Cure Period or Additional Late Recovery Policy 
Adoption Cure Period if the Exchange believes, in the Exchange's sole 
discretion, that it is advisable to do so on the basis of an analysis 
of all relevant factors.
    In determining whether an Additional Late Recovery Policy Adoption 
Cure Period after the expiration of the Initial Late Recovery Policy 
Adoption Cure Period is appropriate, the Exchange will consider the 
likelihood that the delayed Recovery Policy can be adopted during the 
Additional Late Recovery Policy Adoption Cure Period. If the Exchange 
determines that an Additional Late Recovery Policy Adoption Cure Period 
is appropriate and the listed issuer fails to adopt a Recovery Policy 
by the end of such Additional Late Recovery Policy Adoption Cure 
Period, suspension and delisting procedures will commence immediately 
in accordance with the procedures set out in Rule 5.5-E(a). In no event 
will the Exchange continue to trade a company's securities if that 
listed issuer has failed to cure its Late Recovery Policy Adoption 
Delinquency on the date that is twelve months after the commencement of 
the company's Late Recovery Policy Adoption Delinquency.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\12\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act \13\ in particular, in that it 
is designed to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged

[[Page 15499]]

in regulating, clearing, settling, processing information with respect 
to, and facilitating transactions in securities, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest and is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers. The Exchange believes that 
proposed new Rule 5.3-E(p) is consistent with the protection of 
investors and the public interest because it furthers the goal of 
ensuring the accuracy of the financial disclosure of listed issuers. 
Specifically, the Exchange believes the recovery requirement may 
provide executive officers with an increased incentive to take steps to 
reduce the likelihood of inadvertent misreporting and will reduce the 
financial benefits to executive officers who choose to pursue 
impermissible accounting methods, which we expect will further 
discourage such behavior. The Exchange believes that these increased 
incentives may improve the overall quality and reliability of financial 
reporting, which further benefits investors. The new proposed Rule 5.3-
E(p) is also consistent with the requirements of Section 10D of the Act 
and Rule 10D-1 thereunder, as it would establish a listing standard 
that is consistent with the requirements of Rule 10D-1.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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    The Exchange proposes to adopt continued listing standards for 
proposed Rule 5.3-E(p) in proposed Rule 5.3-E(p)(F). Pursuant to 
proposed Rule 5.3-E(p)(F)(i), a listed issuer would be subject to 
immediate suspension and delisting without eligibility for cure periods 
if the Exchange has determined that the listed issuer has failed to 
recover reasonably promptly erroneously-awarded compensation as 
requited by its Recovery Policy. Proposed Rule 5.3-E(p)(F)(ii) would 
provide compliance periods of up to 12 months for a listed issuer that 
is delayed in adopting its Recovery Policy. The Exchange believes that 
the compliance procedures set forth in proposed Rule 5.3-E(p)(F) are 
appropriately rigorous and are consistent with the public interest and 
the interests of investors.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. The Exchange notes that Rule 
10D-1 under the Act requires all listing exchanges to adopt rules with 
respect to the recovery of erroneously awarded compensation that are 
substantively identically to proposed Rule 5.3-E(p).

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) by order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEARCA-2023-20 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEARCA-2023-20. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEARCA-2023-20, and should be 
submitted on or before April 3, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-05033 Filed 3-10-23; 8:45 am]
BILLING CODE 8011-01-P


