EX-97.1 36 Exhibit971.htm EX-97.1 Exhibit971
 
 
 
 
 
DIANA SHIPPING INC.
POLICY REGARDING THE RECOVERY OF ERRONEOUSLY AWARDED
 
COMPENSATION
 
I.
 
Introduction
The
 
Board
 
of
 
Diana
 
Shipping
 
Inc.,
 
a
 
Marshall
 
Islands
 
corporation
 
(the
 
“Company”),
 
is
 
dedicated
 
to
maintaining and
 
enhancing a culture
 
that emphasizes integrity
 
and accountability and
 
that reinforces
 
the
Company’s pay-for-performance compensation philosophy. In accordance with the applicable rules of
 
the
New
 
York
 
Stock
 
Exchange (the
 
“Exchange
 
Rules”), and
 
Section 10D
 
and
 
Rule 10D-1
 
of
 
the
 
Securities
Exchange Act
 
of 1934,
 
as amended
 
(the “Exchange
 
Act”), the
 
Board has
 
therefore adopted
 
this Policy,
which provides
 
for the
 
recoupment,
 
otherwise referred
 
to as
 
“clawback”, of
 
certain erroneously
 
awarded
Incentive-Based
 
Compensation
 
from
 
Executive
 
Officers
 
in
 
the
 
event
 
of
 
an
 
Accounting
 
Restatement
resulting from
 
material noncompliance
 
with financial
 
reporting requirements
 
under the
 
federal securities
laws,
 
and
 
which
 
is
 
intended
 
to
 
comply
 
with
 
Section 954
 
of
 
the
 
Dodd-Frank
 
Wall
 
Street
 
Reform
 
and
Consumer
 
Protection
 
Act.
 
All
 
capitalized
 
terms
 
used
 
and
 
not
 
otherwise
 
defined
 
herein
 
shall
 
have
 
the
meanings set forth in Section II.
II.
 
Definitions
 
(1)
“
Accounting Restatement
” means an accounting restatement due to the material noncompliance
of the
 
Company with
 
any financial
 
reporting requirement
 
under the
 
securities laws,
 
including any
required accounting restatement
 
to correct an error
 
in previously issued
 
financial statements that
 
is
material to the previously issued
 
financial statements (a “Big R”
 
or reissuance restatement), or
 
that
would
 
result
 
in
 
a
 
material
 
misstatement
 
if
 
the
 
error
 
were
 
corrected
 
in
 
the
 
current
 
period
 
or
 
left
uncorrected in the current period
 
(a “little r” or revision restatement).
 
For the avoidance of doubt,
 
in
no event will
 
a restatement of
 
the Company’s financial
 
statements that is
 
not due in
 
whole or in
 
part
to the
 
Company’s material
 
noncompliance with
 
any financial
 
reporting requirement
 
under applicable
law
 
(including
 
any
 
rule
 
or
 
regulation
 
promulgated
 
thereunder)
 
be
 
considered
 
an
 
Accounting
Restatement
 
under
 
this
 
Policy.
 
For
 
example,
 
a
 
restatement
 
due
 
exclusively
 
to
 
a
 
retrospective
application of any one
 
or more of the
 
following will not be
 
considered an Accounting Restatement
under
 
this
 
Policy:
 
(i)
 
a
 
change
 
in
 
accounting
 
principles;
 
(ii)
 
revision
 
to
 
reportable
 
segment
information
 
due
 
to
 
a
 
change
 
in
 
the
 
structure
 
of
 
the
 
Company’s
 
internal
 
organization;
 
(iii)
reclassification due
 
to a discontinued
 
operation; (iv)
 
application of
 
a change
 
in reporting entity, such
as from a reorganization of entities
 
under common control; and (v) revision
 
for stock splits, reverse
stock splits, stock dividends or other changes in capital structure.
(2)
“
Board
”
means the Board of Directors of the Company.
 
(3)
“
Clawback
 
Eligible
 
Incentive
 
Compensation
”
 
means
 
all
 
Incentive-Based
 
Compensation
Received by an Executive Officer (i) on or after the effective date of the applicable
 
Exchange rules
adopted in order to
 
comply with Rule
 
10D-1, (ii) after beginning
 
service as an
 
Executive Officer, (iii)
who served as an
 
Executive Officer at any
 
time during the applicable
 
performance period relating
to the applicable Incentive-Based Compensation (whether or not such Executive Officer is serving
as
 
such
 
at
 
the
 
time
 
the
 
Erroneously
 
Awarded
 
Compensation
 
is
 
required
 
to
 
be
 
repaid
 
to
 
the
Company), (iv)
 
while the
 
Company has
 
a class of
 
securities listed
 
on a national
 
securities exchange
or
 
a
 
national
 
securities
 
association,
 
and
 
(v)
 
during
 
the
 
applicable
 
Clawback
 
Period
 
(as
 
defined
below).
(4)
“
Clawback Period
” means,
 
with respect
 
to any
 
Accounting Restatement,
 
the three
 
completed fiscal
years of the Company immediately preceding the Restatement Date (as defined below), and if the
Company
 
changes
 
its
 
fiscal
 
year,
 
any
 
transition
 
period
 
of
 
less
 
than
 
nine
 
months
 
within
 
or
immediately following those three completed fiscal years.
(5)
“
Committee
”
means
 
the
Compensation
 
Committee
 
of
 
the
 
Company
 
(if
 
composed
 
entirely
 
of
independent directors, or in the absence
 
of such a committee, a majority
 
of independent directors
serving on the Board).
(6)
“
Erroneously
 
Awarded
 
Compensation
”
 
means,
 
with
 
respect
 
to
 
each
 
Executive
 
Officer
 
in
connection
 
with
 
an
 
Accounting
 
Restatement,
 
the
 
amount
 
of
 
Clawback
 
Eligible
 
Incentive
Compensation that
 
exceeds the
 
amount of
 
Incentive-Based Compensation
 
that
 
otherwise would
have
 
been Received
 
had it
 
been
 
determined based
 
on the
 
restated amounts,
 
computed without
regard to any taxes paid.
(7)
“
Exchange
” means the New York Stock Exchange.
(8)
“
Executive
 
Officer
”
 
means
 
each
 
individual
 
who
 
is
 
(a)
 
a
 
current
 
or
 
former
 
executive
 
officer,
 
as
determined by the Committee (as defined below) in accordance with Section 10D and Rule 10D-1 of
the Exchange Act and the listing standards
 
of the Exchange,
 
(b) a current or former employee who
 
is
classified by the Committee as an executive
 
officer of the Company, which includes without limitation
any of the
 
Company’s president, principal
 
financial officer, principal accounting
 
officer (or if there
 
is no
such accounting officer,
 
the controller), vice president
 
in charge of a
 
principal business unit, division
or
 
function
 
(such
 
as
 
sales,
 
administration
 
or
 
finance),
 
and
 
any
 
other
 
person
 
who
 
performs
 
policy-
making functions
 
for the
 
Company (including
 
executive officers
 
of a
 
parent or
 
subsidiary if
 
they perform
policy-making functions
 
for the
 
Company), and
 
(3) an
 
employee who
 
may from
 
time to
 
time be
 
deemed
subject to the Policy by the Committee. For the avoidance of doubt, the identification of an executive
officer for purposes
 
of this Policy
 
shall include each
 
executive officer who
 
is or was
 
identified pursuant
to Item 401(b) of Regulation S-K or Item 6.A of Form 20-F, as applicable.
(9)
“
Financial
 
Reporting
 
Measures
”
 
means
 
measures
 
that
 
are
 
determined
 
and
 
presented
 
in
accordance with the
 
accounting principles used in
 
preparing the Company’s
 
financial statements,
and all other measures
 
that are derived wholly
 
or in part from such
 
measures. Stock price and
 
total
shareholder return
 
(and any
 
measures that
 
are derived
 
wholly or
 
in part
 
from stock
 
price or
 
total
shareholder return) shall, for
 
purposes of this Policy, be considered Financial
 
Reporting Measures.
For the
 
avoidance of
 
doubt, a
 
Financial Reporting
 
Measure need
 
not be
 
presented
 
in the
 
Company’s
financial statements or included in a filing with the SEC.
 
(10)
“
Incentive-Based Compensation
” shall have the meaning set forth in Section III below.
(11)
“
Exchange Effective Date
”
 
means October 2, 2023.
(12)
“
Policy
”
means this Clawback Policy,
 
as the same may
 
be amended and/or restated
 
from time to
time.
(13)
Incentive-Based Compensation will be
 
deemed “
Received
” in the
 
Company’s fiscal period
 
during
which
 
the
 
Financial
 
Reporting
 
Measure
 
specified
 
in
 
the
 
Incentive-Based
 
Compensation
documentation is attained, even
 
if (a) the
 
payment or grant of
 
the Incentive-Based Compensation
to the
 
Executive Officer
 
occurs after
 
the end
 
of that
 
period or
 
(b) the
 
Incentive-Based Compensation
remains contingent and subject to further conditions thereafter, such as time-based vesting.
 
(14)
“
Restatement Date
” means the earlier
 
to occur of (i)
 
the date the Board,
 
a committee of
 
the Board,
or
 
the
 
officer(s)
 
of
 
the
 
Company
 
authorized
 
to
 
take
 
such
 
action
 
if
 
Board
 
action
 
is
 
not
 
required,
concludes,
 
or
 
reasonably
 
should
 
have
 
concluded,
 
that
 
the
 
Company
 
is
 
required
 
to
 
prepare
 
an
Accounting Restatement, or (ii) the
 
date a court, regulator
 
or other legally authorized body
 
directs
the Company to prepare an Accounting Restatement.
(15)
“
SARs
”
means shareholder appreciate rights.
 
 
(16)
“
SEC
”
means the U.S. Securities and Exchange Commission.
 
 
III.
 
Incentive-Based Compensation
“Incentive-Based Compensation”
 
shall mean any
 
compensation that is
 
granted, earned or
 
vested wholly
 
or
in part upon the attainment of a Financial Reporting Measure.
 
For
 
purposes
 
of
 
this
 
Policy,
 
specific
 
examples
 
of
 
Incentive-Based
 
Compensation
 
include,
 
but
 
are
 
not
limited to:
●
 
Non-equity
 
incentive
 
plan
 
awards
 
that
 
are
 
earned
 
based,
 
wholly
 
or
 
in
 
part,
 
on
 
satisfaction
 
of
 
a
Financial Reporting Measure performance goal;
●
 
Bonuses
 
paid
 
from
 
a
 
“bonus
 
pool,”
 
the
 
size
 
of
 
which
 
is
 
determined,
 
wholly
 
or
 
in
 
part,
 
based
 
on
satisfaction of a Financial Reporting Measure performance goal;
●
 
Other cash awards based on satisfaction of a Financial Reporting
 
Measure performance goal;
●
 
Restricted stock, restricted stock units, performance
 
share units, stock options and
 
SARs that are
granted
 
or
 
become
 
vested,
 
wholly
 
or
 
in
 
part,
 
on
 
satisfaction
 
of
 
a
 
Financial
 
Reporting
 
Measure
performance goal; and
●
 
Proceeds received upon the
 
sale of
 
shares acquired through
 
an incentive
 
plan that
 
were granted
or vested
 
based, wholly or
 
in part,
 
on satisfaction of
 
a Financial
 
Reporting Measure performance
goal.
For purposes of this Policy, Incentive-Based Compensation excludes:
●
 
Any base salaries (except with respect to any salary increases earned, wholly or in part, based on
satisfaction of a Financial Reporting Measure performance goal);
●
 
Bonuses paid
 
solely at
 
the discretion
 
of the
 
Committee or
 
Board that
 
are not
 
paid from
 
a “bonus
pool” that is determined by satisfying a Financial Reporting
 
Measure performance goal;
●
 
Bonuses
 
paid
 
solely
 
upon
 
satisfying
 
one
 
or
 
more
 
subjective
 
standards
 
and/or
 
completion
 
of
 
a
specified employment period;
●
 
Non-equity incentive
 
plan awards
 
earned solely
 
upon satisfying
 
one or
 
more strategic
 
measures
(e.g., consummating
 
a merger
 
or divestiture)
 
or operational
 
measures (e.g.,
 
completion of
 
a project,
acquiring a specified number of vessels, attainment of a certain
 
market share);
 
and
●
 
Equity awards
 
that vest solely
 
based on the
 
passage of
 
time and/or satisfaction
 
of one or
 
more non-
Financial Reporting
 
Measures (e.g.,
 
a time-vested
 
award, including
 
time-vesting stock
 
options or
restricted share rights).
IV.
 
Administration and Interpretation
 
This Policy shall be administered
 
by the Committee, and
 
any determinations made by
 
the Committee shall
be
 
final
 
and
 
binding
 
on
 
all
 
affected
 
individuals.
 
The
 
Committee
 
shall
 
determine
 
the
 
amount
 
of
 
any
Erroneously Awarded
 
Compensation Received
 
by each
 
Executive Officer
 
and shall
 
promptly deliver
 
written
notice to each Executive Officer containing the amount of any Erroneously Awarded Compensation and a
demand for
 
repayment or
 
return of
 
such compensation,
 
as applicable.
 
For the
 
avoidance of
 
doubt, recovery
of
 
Erroneously Awarded
 
Compensation is
 
on
 
a “no
 
fault”
 
basis, meaning
 
that
 
it
 
will occur
 
regardless of
whether the Executive
 
Officer engaged in
 
misconduct or was
 
otherwise directly or
 
indirectly responsible, in
whole or in part, for the Accounting Restatement.
The Committee
 
is authorized
 
to interpret
 
and construe
 
this Policy
 
and to
 
make all
 
determinations and to
take such actions as may be necessary, appropriate, or advisable for the administration of this Policy and
for the
 
Company’s compliance
 
with the
 
Exchange
 
Rules, Section
 
10D, Rule
 
10D-1 and
 
any other
 
applicable
law,
 
regulation,
 
rule
 
or
 
interpretation of
 
the
 
SEC
 
or
 
the
 
Exchange
 
promulgated or
 
issued
 
in
 
connection
therewith.
 
 
 
 
 
V.
Recovery of Erroneously Awarded Compensation
(1)
 
In the event
 
of an Accounting Restatement,
 
the Committee shall promptly determine
 
in good faith
the amount
 
of any
 
Erroneously Awarded
 
Compensation Received
 
in accordance
 
with the
 
Exchange
Rules and Rule 10D-1 for each Executive Officer in connection with
 
such Accounting Restatement
and
 
shall promptly
 
thereafter provide
 
each Executive
 
Officer
 
with
 
a written
 
notice containing
 
the
amount of
 
Erroneously Awarded
 
Compensation (without
 
regard to
 
any taxes
 
paid thereon
 
by the
Executive Officer) and a demand for repayment or return, as applicable.
a.
 
Cash Awards.
 
With respect to cash awards,
 
the Erroneously Awarded Compensation
 
is the
difference between the amount of the cash award (whether payable as a lump sum or over
time)
 
that
 
was
 
Received
 
and
 
the
 
amount
 
that
 
should
 
have
 
been
 
received
 
applying
 
the
restated Financial Reporting Measure.
b.
 
Cash Awards Paid from Bonus Pools.
 
With respect to cash awards paid from bonus pools,
the Erroneously
 
Awarded Compensation
 
is the
 
pro rata portion
 
of any deficiency
 
that results
from
 
the
 
aggregate bonus
 
pool
 
that
 
is reduced
 
based
 
on
 
applying the
 
restated
 
Financial
Reporting Measure.
c.
 
Equity Awards.
 
With respect to
 
equity awards, if the
 
shares, options or
 
SARs are still held
at
 
the
 
time
 
of
 
recovery,
 
the
 
Erroneously
 
Awarded
 
Compensation
 
is
 
the
 
number
 
of
 
such
securities Received
 
in excess
 
of the
 
number that
 
should been
 
received applying
 
the restated
Financial Reporting Measure
 
(or the value in
 
excess of that number).
 
If the options or
 
SARs
have
 
been
 
exercised,
 
but
 
the
 
underlying
 
shares
 
have
 
not
 
been
 
sold,
 
the
 
Erroneously
Awarded Compensation is the
 
number of shares
 
underlying the excess
 
options or SARs (or
the
 
value
 
thereof).
 
If
 
the
 
underlying
 
shares
 
have
 
already
 
been
 
sold,
 
then
 
the
 
Committee
shall
 
determine
 
the
 
amount
 
which
 
most
 
reasonably
 
estimates
 
the
 
Erroneously
 
Awarded
Compensation.
d.
 
Compensation
 
Based
 
on
 
Stock
 
Price
 
or
 
Total
 
Shareholder
 
Return.
 
For
 
Incentive-Based
Compensation based on
 
(or derived from) stock
 
price or total shareholder
 
return, where the
amount of Erroneously
 
Awarded Compensation is
 
not subject to
 
mathematical recalculation
directly from the information in the applicable Accounting Restatement,
 
(i) the amount shall
be
 
determined
 
by
 
the
 
Committee
 
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 (ii)
 
the
 
Committee and/or
 
Board shall
maintain documentation
 
of such
 
determination of
 
that reasonable
 
estimate and
 
provide such
documentation to the Exchange in accordance with applicable listing standards.
(2)
 
The
 
Committee
 
shall
 
have
 
discretion
 
to
 
determine
 
the
 
appropriate
 
means
 
of
 
recovering
Erroneously
 
Awarded
 
Compensation
 
based
 
on
 
the
 
particular
 
facts
 
and
 
circumstances.
Notwithstanding the
 
foregoing, except
 
as set
 
forth in
 
Section VI
 
below,
 
in no
 
event may
 
the
Company
 
accept
 
an
 
amount
 
that
 
is
 
less
 
than
 
the
 
amount
 
of
 
Erroneously
 
Awarded
Compensation in satisfaction of an Executive Officer’s obligations
 
hereunder.
 
 
(3)
 
To
 
the
 
extent
 
that
 
the
 
Executive
 
Officer
 
has
 
already
 
reimbursed
 
the
 
Company
 
for
 
any
Erroneously
 
Awarded
 
Compensation
 
Received
 
under
 
any
 
duplicative
 
recovery
 
obligations
established by the Company
 
or applicable law, it shall
 
be appropriate for
 
any such reimbursed
amount to be credited to the amount
 
of Erroneously Awarded Compensation that
 
is subject to
recovery
 
under
 
this
 
Policy.
 
To
 
the
 
extent
 
that
 
the
 
Erroneously
 
Awarded
 
Compensation
 
is
recovered under a
 
foreign recovery regime,
 
the recovery would
 
meet the obligations
 
of Rule
10D-1.
(4)
 
To
 
the extent that an Executive Officer
 
fails to repay all Erroneously
 
Awarded Compensation
to the Company when due, the Company shall take all actions reasonable and appropriate to
recover such Erroneously Awarded Compensation from the applicable
 
Executive Officer. The
applicable
 
Executive
 
Officer
 
shall
 
be
 
required
 
to
 
reimburse
 
the
 
Company
 
for
 
any
 
and
 
all
expenses
 
reasonably
 
incurred
 
(including
 
legal
 
and
 
other
 
collection
 
related
 
fees)
 
by
 
the
Company in recovering such
 
Erroneously Awarded Compensation.
VI.
 
Discretionary Recovery
Notwithstanding anything
 
herein to
 
the
 
contrary,
 
the
 
Company shall
 
not be
 
required to
 
take the
 
actions
contemplated by Section V
 
above if the Committee
 
determines that recovery would be
 
impracticable and
any of the following three conditions are met.
(1)
 
The Committee has determined that the
 
direct expenses, such as reasonable legal expenses and
consulting fees, paid
 
to a third
 
party to assist
 
in enforcing the
 
Policy would exceed
 
the amount to
be recovered. In
 
order for the
 
Committee to make
 
this determination, the
 
Company must make
 
a
reasonable attempt to
 
recover the Erroneously
 
Awarded Compensation, document
 
such attempt(s)
to recover, and provide such documentation to the Exchange;
 
(2)
 
Recovery would violate
 
home country law
 
where that law
 
was adopted prior
 
to November 28,
 
2022,
provided
 
that,
 
before
 
determining
 
that
 
it
 
would
 
be
 
impracticable
 
to
 
recover
 
any
 
amount
 
of
Erroneously Awarded
 
Compensation based
 
on violation
 
of
 
home country
 
law,
 
the
 
Company has
obtained
 
an
 
opinion of
 
home country
 
counsel,
 
acceptable to
 
the
 
Exchange, that
 
recovery
 
would
result in such a violation and a copy of the opinion is provided
 
to Exchange;
(3)
 
Recovery would
 
likely cause
 
an otherwise
 
tax-qualified retirement
 
plan, under
 
which benefits
 
are
broadly
 
available
 
to
 
employees
 
of
 
the
 
Company,
 
to
 
fail
 
to
 
meet
 
the
 
requirements
 
of
 
Section
401(a)(13) or Section 411(a)
 
of the Internal Revenue Code of 1986,
 
as amended, and regulations
thereunder.
VII.
 
Recoupment Period Covered and Amount
If an Accounting Restatement occurs, the
 
Committee shall review all Incentive-Based Compensation that
was granted, vested or earned on
 
the basis of having met or exceeded
 
Financial Reporting Measures and
that was
 
Received by
 
an Executive
 
Officer during
 
the Clawback
 
Period. With
 
respect to
 
each Executive
Officer,
 
the Committee shall, as
 
provided under this Policy,
 
seek to require the
 
forfeiture or repayment of
(1) the Erroneously Awarded
 
Compensation, whether vested
 
or unvested and
 
including proceeds received
upon the sale of shares acquired through an
 
incentive plan that were granted or vested
 
based wholly or in
part on satisfying a Financial Reporting Measure, Received during
 
the Clawback Period in the event of an
Accounting
 
Restatement,
 
and
 
(2)
 
to
 
the
 
extent
 
the
 
Executive
 
Officer
 
engages
 
in
 
Detrimental
 
Conduct,
applicable Incentive-Based Compensation received thereafter.
 
 
 
 
 
Compensation shall
 
be deemed
 
to have
 
been Received
 
in the
 
fiscal period
 
in which
 
the Financial
 
Reporting
Measure
 
is attained,
 
even if
 
the
 
Incentive-Based Compensation
 
is not
 
actually paid
 
until a
 
later date
 
or
where
 
the
 
compensation
 
is
 
subject
 
to
 
additional
 
service-based
 
or
 
non-financial
 
goal-based
 
vesting
conditions after the period ends. The amount to be recovered will
 
be as provided for in this Policy.
VIII.
 
Method of Recovery of Erroneously Awarded Compensation
The
 
Committee
 
will
 
determine,
 
in
 
its
 
sole
 
discretion,
 
the
 
method
 
for
 
recovering
 
Erroneously
 
Awarded
Compensation hereunder, which may include, without limitation:
(1)
 
Requiring reimbursement of cash Incentive-Based Compensation previously
 
paid;
(2)
 
Seeking recovery of any gain realized on the granting, vesting, exercise, settlement, sale, transfer
or other disposition of any equity or equity-based awards;
(3)
 
Offsetting
 
the
 
recouped
 
amount
 
from
 
any
 
compensation
 
otherwise
 
owed
 
by
 
the
 
Company
 
or
 
its
affiliates to the Executive Officer;
(4)
 
Cancelling
 
outstanding
 
vested
 
or
 
unvested
 
equity
 
or
 
equity-based
 
awards
 
and/or
 
reducing
outstanding future payments due or possibly
 
due in respect of amounts already Received; and/or
(5)
 
Taking
 
any other remedial and recovery action permitted
 
by law, as determined by the Committee.
IX.
 
Disclosure Requirements
The Company
 
shall file all
 
disclosures with
 
respect to
 
this Policy
 
in accordance
 
with the
 
requirements of
the federal securities laws, including the disclosure required by the rules and applicable filings required to
be made with the SEC.
X.
 
No Indemnification
The Company shall
 
not be permitted
 
to insure or
 
indemnify any Executive
 
Officer against (i) the
 
loss of any
Erroneously
 
Awarded
 
Compensation that
 
is
 
repaid, returned
 
or
 
recovered
 
pursuant
 
to
 
the
 
terms
 
of
 
this
Policy, or (ii)
 
any claims relating to the Company’s enforcement of its rights under this Policy.
 
Further, the
Company
 
shall
 
not
 
enter
 
into
 
any
 
agreement
 
that
 
exempts
 
any
 
Incentive-Based
 
Compensation
 
that
 
is
granted,
 
paid
 
or
 
awarded
 
to
 
an
 
Executive
 
Officer
 
from
 
the
 
application
 
of
 
this
 
Policy
 
or
 
that
 
waives
 
the
Company’s right to recovery of
 
any Erroneously Awarded Compensation, and this
 
Policy shall supersede
any such agreement
 
(whether entered into
 
before, on or
 
after the Effective
 
Date of this
 
Policy). While an
Executive Officer may purchase a third-party insurance policy to fund potential recovery obligations
 
under
this
 
Policy,
 
the
 
Company
 
may
 
not
 
pay
 
or
 
reimburse
 
the
 
Executive
 
Officer
 
for
 
premiums
 
for
 
such
 
an
insurance policy.
 
XI.
 
Effective Date
This Policy shall be effective as of the Exchange Effective Date.
 
XII.
 
Amendment; Termination
 
 
The Committee
 
and thereafter,
 
the Board,
 
may amend
 
this Policy
 
from time
 
to time
 
in its
 
discretion and
shall amend
 
this Policy as
 
it deems
 
necessary to
 
comply with
 
the requirements
 
of any
 
federal securities
laws, SEC rule or the rules of any national
 
securities exchange or national securities association
 
on which
the Company’s
 
securities are
 
then listed. Notwithstanding anything
 
in this
 
Section XII
 
to the
 
contrary,
 
no
amendment or termination
 
of this Policy
 
shall be effective
 
if such amendment
 
or termination would
 
(after
taking
 
into
 
account
 
any
 
actions
 
taken
 
by
 
the
 
Company
 
contemporaneously
 
with
 
such
 
amendment
 
or
termination) cause
 
the Company
 
to violate
 
any federal
 
securities laws,
 
SEC rule,
 
or the
 
rules of
 
any national
securities exchange or national securities association on which
 
the Company’s securities are then listed.
XIII.
 
Other Recovery Rights
This Policy
 
will be
 
applied to
 
the fullest
 
extent of
 
the
 
law.
 
The Board
 
and/or the
 
Committee may,
 
to the
fullest extent of the law,
 
require that any employment agreement,
 
equity award agreement,
 
or other plan,
agreement or arrangement providing for incentive compensation shall, as a condition to the
 
grant, receipt
or vesting
 
of any
 
benefit thereunder,
 
require an
 
Executive Officer
 
to agree
 
to abide
 
by the
 
terms of
 
this
Policy,
 
including requiring the
 
execution of the
 
attestation and acknowledgement
 
set forth
 
in Exhibit A
 
to
this Policy.
 
Any right of
 
recoupment under this
 
Policy is in
 
addition to, and
 
not in lieu
 
of, any other
 
remedies
or rights of recoupment
 
that may be available to
 
the Company pursuant to the
 
terms of any similar policy
in any employment agreement, equity
 
or equity-based plan or award agreement,
 
or other plan, agreement
or
 
arrangement
 
providing
 
for
 
incentive
 
compensation
 
and
 
any
 
other
 
legal
 
remedies
 
available
 
to
 
the
Company.
 
However, this
 
Policy shall not
 
provide for
 
recovery of
 
Incentive-Based Compensation that
 
the
Company
 
has
 
already
 
recovered
 
pursuant to
 
Section
 
304
 
of
 
the
 
Sarbanes-Oxley Act
 
or
 
other
 
recovery
obligations.
 
XIV.
 
Successors
This
 
Policy
 
shall
 
be
 
binding
 
and
 
enforceable
 
against
 
all
 
Executive
 
Officers
 
and
 
their
 
beneficiaries,
executors, administrators, permitted
 
transferees, permitted assignees
 
or other legal
 
representatives, and
shall inure to the benefit of any successor or assignee of the Company.
 
 
 
Exhibit A
ATTESTATION
 
AND
 
ACKNOWLEDGEMENT
 
OF
 
POLICY
 
REGARDING
 
THE
 
RECOVERY
 
OF
ERRONEOUSLY AWARDED
 
COMPENSATION
By my signature below, I acknowledge and agree that:
●
I have
 
received and
 
read the
 
attached Policy
 
Regarding the
 
Recovery of
 
Erroneously Awarded
Compensation (this “
Policy
”).
●
I hereby agree
 
to abide by
 
all of the
 
terms of this
 
Policy both
 
during and
 
after my employment
 
with
the
 
Company,
 
including,
 
without
 
limitation,
 
by
 
promptly
 
repaying
 
or
 
returning
 
any
 
Erroneously
Awarded Compensation to the Company as determined in accordance
 
with this Policy.
Signature:_____________________
Printed Name:_________________
Date:________________________