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10: EX-97.1 Clawback Policy re: Recovery of Erroneously HTML 64K Awarded Compensation
6: EX-31.1 Certification -- §302 - SOA'02 HTML 42K
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‘EX-97.1’ — Clawback Policy re: Recovery of Erroneously Awarded Compensation
1.Purpose. The Board believes that it is in the best interests of the Company and its shareholders to
create and maintain a culture that emphasizes integrity and accountability and that reinforces the Company’s pay-for-performance compensation philosophy. The Board has, therefore, adopted this Policy, which provides for the recoupment of certain executive compensation in the event of an Accounting Restatement and is designed to comply with, and will be interpreted to be consistent with, the Applicable Rules.
2.Definitions.
a.“Accounting Restatement” means a “Big R” Restatement or a “little R” Restatement.
b.“Accounting Restatement Date”
means the earlier to occur of (i) the date on which the Board, or the officers of the Company authorized to take action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare an Accounting Restatement and (ii) the date on which any court, regulator, or other legally authorized body directs the Company to prepare an Accounting Restatement, in either case, regardless of whether or when the restated financial statements are filed with the SEC.
c.“Additional Compensation” means (i) the portion of an annual bonus, if any, that is not based
upon the attainment of a Financial Reporting Measure and (ii) equity compensation awards that do not contain vesting terms based on the attainment of a Financial Reporting Measure.
d.“Applicable Rules” means Section 10D of the Exchange Act, Rule 10D-1 promulgated under the Exchange Act, and Nasdaq Listing Rule 5608, in each case, as amended from time to time.
e.“Big R” Restatement” means an accounting restatement by the Company due to the Company’s material noncompliance with any financial reporting requirement under the securities laws, including any required
restatement to correct an error in the Company’s previously issued financial statements that is material to the previously issued financial statements (i.e., a “Big R” restatement).
f.“Board” means the Board of Directors of the Company.
g.“Clawback Period” means the three completed fiscal years immediately preceding the Accounting Restatement Date as well as any transition period that results from a change in the Company’s fiscal year within or immediately following
those three completed fiscal years; provided, that a transition period lasting nine months or longer will count as a completed fiscal year for purposes determining the Clawback Period.
h.“Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
i.“Committee” means the Compensation and Talent Committee of the Board.
j.“Company” means IDEXX Laboratories, Inc., a Delaware corporation.
l.“Covered Executives” means the Company’s president, principal financial officer, and principal accounting officer (or, if there is no such accounting officer, the controller), any vice-president of the Company in charge of a principal business unit, division, or function (such as sales, administration, or finance), any other officer of the
Company who performs a policy-making function, and any other person who performs similar policy-making functions for the Company. An executive officer of the Company’s parent(s) or subsidiaries is deemed to be a Covered Executive if the executive officer performs policy-making functions for the Company. For purposes of this definition, policy-making functions are not intended to include policy-making functions that are not significant, and identification of a Covered Executive for purposes of this definition would include, at a minimum, executive officers identified pursuant to Item 401(b) of Regulation S-K.
n.“Erroneously Awarded Compensation” means, in the event of an Accounting Restatement, the amount of Incentive-Based Compensation Received by a Covered Executive that exceeds the amount of Incentive-Based Compensation that otherwise would have been Received by such Covered Executive had it been determined based on the restated amounts in such Accounting Restatement, as determined in the sole discretion of the Board based on all applicable facts and circumstances (including, without limitation, the time value of money, the gross amount of dividends or other distributions received by the Covered Executive in respect of the Incentive-Based Compensation, and any gain realized by the Covered Executive upon the subsequent disposition of any property
received in connection with any Incentive-Based Compensation); provided, that (i) the amount of Erroneously Awarded Compensation must be computed without regard to any taxes paid by such Covered Executive; and (ii) for Incentive-Based Compensation Received by a Covered Executive 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 the Accounting Restatement, (A) the amount of Erroneously Awarded Compensation 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 (B) the Company must maintain documentation of the determination of that reasonable estimate and provide such documentation to the Stock Exchange.
o.“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
p.“Financial Reporting Measures” means any measures that are determined and presented in accordance with the accounting principles used in the Company’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 Company’s financial statements or included in a filing with the SEC to be considered a Financial Reporting Measure.
q.“Incentive-Based
Compensation” means any compensation that is granted, earned, or vested based wholly or in part upon the attainment of a Financial Reporting Measure.
r.“little R” Restatement” means an accounting restatement by the Company due to the Company’s material noncompliance with any financial reporting requirement under the securities laws, including any required restatement to correct an error in the Company’s previously issued financial statements that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current
period (i.e., a “little r” restatement).
s.“Policy” means this Amended & Restated Clawback Policy, as it may be amended, restated, supplemented, or otherwise modified from time to time.
t.“Received” means, (i) with respect to Incentive-Based Compensation, actual or deemed receipt of such compensation, and Incentive-Based Compensation will be deemed Received by a Covered Executive in the Company’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 such Incentive-Based Compensation occurs after the end of that period; and (ii) with respect to Additional Compensation, Additional Compensation that was granted to, vested and/or earned or received by a Covered Executive during the relevant period. For the avoidance of doubt, Incentive-Based Compensation or Additional Compensation that is subject to deferral pursuant to a deferred compensation plan of the Company Group will be deemed Received by the Covered Executive for purposes of this Policy as of the date of deferral.
u.“SEC” means that U.S. Securities and Exchange Commission.
v.“Stock Exchange” means The Nasdaq
Stock Market.
3.Administration. This Policy will be administered by the Board or, if so designated by the Board, the Committee, in which case references herein to the Board will be deemed references to the Committee. The Board has full and final authority to make all determinations under this Policy and in compliance with (or pursuant to an exemption from the application of) Section 409A of the Code. The Board may consult with the Audit Committee of the Board in evaluating any determinations made pursuant to this Policy. Any determinations made by the Board will be final, conclusive, and binding on all persons, including the Company, its shareholders, and the Covered Executives. Any action or inaction by the Board with respect to a Covered Executive under this Policy in
no way limits the Board’s actions or decisions not to act or to act in a different manner with respect to any other Covered Executive under this Policy or under any similar policy, agreement, or arrangement, nor will any such action or inaction serve as a waiver of any rights that the Company Group may have against any Covered Executive, other than as set forth in this Policy. The Board may authorize and empower any officer or employee of the Company Group to take any and all actions necessary or appropriate to carry out the purpose and intent of this Policy, other than with respect to any recovery under this Policy involving such officer or employee.
4.Scope of Application. This Policy
applies to Incentive-Based Compensation and, as applicable, Additional Compensation Received by a Covered Executive on or after the Effective Date and during any applicable Clawback Period if (a) such Incentive-Based Compensation or Additional Compensation was Received by the Covered Executive after beginning service as a Covered Executive, (b) the Covered Executive served as a Covered Executive at any time during the performance period for such Incentive-Based Compensation or Additional Compensation, and (c) the Incentive-Based Compensation or Additional Compensation was Received by the Covered Executive while the Company had a class of securities listed on a national securities exchange or a national securities association.
5.Clawback Requirement. If the
Company is required to prepare an Accounting Restatement, the Company Group must recover (and each Covered Executive must repay), reasonably promptly, each Covered Executive’s Erroneously Awarded Compensation, except as provided in Section 9 of this Policy. The Company may recover Erroneously Awarded Compensation in any manner set forth in Section 7 of this Policy.
6.Discretionary Clawback of Additional Compensation. If the Company is required to prepare a “Big R” Restatement, the Board will have the discretion to recover (and, if so determined by the Board, each Covered Executive must repay)
any Additional Compensation (to the extent such Additional Compensation is not required to be recovered under Section 5 hereof). The Board will have discretion as to the amount of the Additional Compensation to be recovered and manner, method and timing of recovery. In determining whether to seek recovery of Additional Compensation, and if so, the amount and form of such recovery, the Board may make determinations that are not uniform among the Covered Executives, apply provisions of this Policy differently to each Covered Executive and take into account such considerations as it deems appropriate, including without limitation: (i) the likelihood of success in seeking reimbursement or
forfeiture under governing law versus the cost and effort involved; (ii) whether the assertion of a claim may
prejudice the interests of the Company, including without limitation in any related proceeding or investigation; (iii) the passage of time since the occurrence of the act or omission giving rise, directly or indirectly, to the financial restatement; (iv) whether or not the Covered Executive from whom recovery is being sought engaged in fraud or willful misconduct that caused or partially caused the restatement; and/or (v) such other factors as it deems appropriate under the circumstances.
7.Clawback Methods for Incentive Compensation. The Board will determine, in its sole discretion, the timing and method for recovering each Covered Executive’s Erroneously Awarded Compensation in a reasonably prompt manner, which may include, without limitation, one or more of the following
methods (applied individually or jointly):
a.requiring the Covered Executive to repay the Company Group in cash or other property determined to be acceptable by the Board;
b.offsetting the Erroneously Awarded Compensation against any compensation otherwise owing by the Company Group to the Covered Executive or to be earned by the Covered Executive;
c.cancelling outstanding vested or unvested cash or equity awards; and
d.taking any
other remedial and recovery action authorized by law or contract.
8.Recoupment of Expenses. If the Board determines that a Covered Executive has not complied with the terms of this Policy and reasonably promptly repaid the Covered Executive’s Erroneously Awarded Compensation or Additional Compensation, if required, in full pursuant to the recovery method elected by the Board, the Board will be permitted to, in its discretion, require the Covered Executive (in addition to repaying such amounts to the Company Group) to reimburse the Company Group for any and all expenses reasonably incurred (including
reasonable legal fees) by the Company Group in recovering such Erroneously Awarded Compensation or Additional Compensation in accordance with this Policy.
9.Exceptions to Clawback Requirement. Notwithstanding anything to the contrary in this Policy, the Company Group’s recovery obligation under this Policy with respect to a Covered Executive’s Erroneously Awarded Compensation will not apply to the extent that either the Committee or, if the determination is made by the Board, a majority of the independent directors serving on the Board, determines that such recovery would be impracticable and that one or more of the following applies:
a.the
direct expense paid to a third party to assist in enforcing this Policy would exceed the amount of the Erroneously Awarded Compensation; provided, that before concluding that it would be impracticable to recover any amount of Erroneously Awarded Compensation based on expense of enforcement, the Company Group must (i) make a reasonable attempt to recover such Erroneously Awarded Compensation, (ii) document such reasonable attempt to recover, and (iii) provide that documentation to the Stock Exchange;
b.recovery would violate home country law where that law was adopted prior to November 28, 2022; provided, that before concluding that it would be impracticable to recover any amount of Erroneously Awarded Compensation based on violation of home country
law, the Company Group must (i) obtain an opinion of home country counsel, acceptable to the Stock Exchange, that recovery would result in such a violation and (ii) provide such opinion to the Stock Exchange; or
c.recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company Group, to fail to meet the requirements of Section 401(a)(13) of the Code or Section 411(a) of the Code.
10.Indemnification. Notwithstanding the terms of any indemnification arrangement or insurance policy or contract
with, or for the benefit of, any Covered Executive, the Company Group may not indemnify any
Covered Executive against the loss of Erroneously Awarded Compensation, including any payment or reimbursement for the cost of third-party insurance purchased by any Covered Executive to fund potential clawback obligations under this Policy, or against the requirement to reimburse the Company hereunder for expenses incurred by the Company in recovering Erroneously Awarded Compensation. No member of the Board who assists in the administration of this Policy
will be liable for any action, determination, or interpretation made with respect to this Policy, and each member of the Board will be fully indemnified by the Company Group to the fullest extent under applicable law or Company Group policy with respect to such action, determination, or interpretation.
11.Acknowledgement. Each Covered Executive will be asked to sign and return to the Company an acknowledgement of the application of this Policy, in a form to be provided by the Company; provided, however, the Company may
recoup Incentive Compensation or, if applicable, Additional Compensation from each Covered Executive as provided herein, regardless of whether such Covered Executive received from the Company notice, or provided to the Company written acknowledgement, of this Policy.
12.Required Disclosures. The Company will file all disclosures with respect to this Policy in accordance with the requirements of the federal securities laws, including any disclosures required by the SEC.
13.Adoption Date; Effective Date.
This Policy was adopted by the Board on October 18, 2023, and will be effective as the Effective Date. This Policy amends and restates in its entirety the Clawback Policy of the Company in place prior to the Effective Date (the “Prior Policy”). The terms and conditions of this Policy will apply to Incentive-Based Compensation or, if applicable, Additional Compensation, that is Received by any Covered Executive on or after the Effective Date, even if such Incentive-Based Compensation or Additional Compensation was approved, awarded, or granted to the Covered Executive prior to the Effective Date. The Prior Policy will continue to apply with respect to Incentive-Based Compensation, or, if applicable, Additional Compensation Received prior to the Effective Date.
14.Amendment;
Termination. The Board may amend this Policy from time to time in its discretion. The Board may suspend, discontinue, or terminate this Policy at any time. Notwithstanding anything in this Section 14 to the contrary, no amendment, suspension, discontinuation or termination of this Policy shall be effective if such amendment, suspension, discontinuation or termination would (after taking into account any actions taken by the Company contemporaneously with such amendment, suspension, discontinuation or termination) cause the Company to violate any federal securities laws, SEC rule or Stock Exchange rule.
15.Other Recovery Rights. The Board intends that this Policy
will be applied to the fullest permissible extent. The Board may require that any employment agreement, equity award agreement, or similar agreement entered into on or after the Effective Date will, as a condition to the grant of any benefit thereunder, require a Covered Executive to agree to be subject to and to abide by the terms of this Policy. Any right of recovery under this Policy is in addition to, and not in lieu of, any other remedies or rights of recovery that may be available to the Company Group pursuant to the terms of any similar policy in any employment agreement, equity award agreement, or similar agreement and any other legal remedies available to the Company Group. To the extent that the application of this Policy would provide for recovery of Incentive-Based Compensation that the
Company Group recovers from a Covered Executive pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 or other recovery obligations, the amount such Covered Executive has already reimbursed the Company Group will be credited to the required recovery under this Policy.
16.Successors. This Policy will be binding and enforceable against all Covered Executives and their beneficiaries, heirs, executors, administrators, and other legal representatives.
17.Governing Law; Venue. This Policy and all rights and obligations hereunder are governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of law rules or principles
that may direct the application of the laws of another jurisdiction. All actions arising out of or relating to this Policy will be heard and determined exclusively in the Court of Chancery of the State of Delaware or, if such court declines to exercise jurisdiction or if subject matter jurisdiction over the matter
that is the subject of any such legal action or proceeding is vested exclusively in the U.S. federal courts, the U.S. District Court for the District of Delaware. In the event of any inconsistency between the Policy and the terms of any employment agreement to which a Covered Executive is a party, or the terms of any compensation plan, program, agreement, or arrangement under which any compensation has been granted, awarded, earned, or paid to the Covered Executive, the terms of this
Policy will govern.
Brian P. McKeon Executive Vice President, Chief Financial Officer and Treasurer
A signed original of this written statement required by Section 906, has been
provided to IDEXX Laboratories, Inc. and will be retained by IDEXX Laboratories, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
