CHS INC.
INCENTIVE COMPENSATION RECOVERY POLICY
1.Introduction.
The Board of Directors (the “Board”) of CHS Inc. (the “Company”) believes that it is in the best interests of the Company, its members and its shareholders to create and maintain a culture that emphasizes integrity and accountability and that reinforces the Company’s compensation philosophy. The Board has therefore adopted this policy, which provides for the recovery of erroneously awarded incentive compensation in the event that the Company is required to prepare an accounting restatement due to material noncompliance of the Company with any financial reporting requirements under the federal securities laws (the “Policy”). This Policy is designed to comply with Section 10D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), related rules and the listing standards of The Nasdaq Stock Market LLC (“Nasdaq”) and any other securities exchange on which the Company’s shares are listed in the future.
2.Administration.
This Policy shall be administered by the Board or, if so designated by the Board, the Executive Committee or Governance Committee of the Board (the “Committee”), in which case, all references herein to “the Board” shall be deemed references to the Committee. Any determinations made by the Board shall be final and binding on all affected individuals.
3.Covered Executive and Directors.
Unless and until the Board determines otherwise, for purposes of this Policy, the term “Covered Executive” means a current or former employee who is or was identified by the Company as the Company’s chief executive officer, president, principal financial officer, 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 who performs a policy–making function or any other person who performs similar policy–making functions for the Company. Executive officers of the Company’s subsidiaries are deemed “Covered Executives” if they perform such policy–making functions for the Company. “Policy–making function” is not intended to include policy–making functions that are not significant. “Covered Executives” include, at a minimum, the executive officers identified by the Company pursuant to Item 401(b) of Regulation S–K of the Exchange Act. “Director” means a member of the Board.
This Policy covers Incentive Compensation received by a person after beginning service as a Covered Executive or Director and who served as a Covered Executive or Director at any time during the performance period for that Incentive Compensation.
Adopted by CHS Board of Directors September 6, 2023
4.Recovery: Accounting Restatement.
In the event the Company is required to prepare an accounting restatement of its financial statements filed with the Securities and Exchange Commission (the “SEC”) due to the Company’s material noncompliance with any financial reporting requirements under the federal 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, or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period) (an “Accounting Restatement”), the Company will recover reasonably promptly any excess Incentive Compensation received by any Covered Executive or Director during the three completed fiscal years immediately preceding the date on which the Company is required to prepare an Accounting Restatement, including transition periods resulting from a change in the Company’s fiscal year as provided in Rule 10D of the Exchange Act. Incentive Compensation is deemed “received” in the Company’s fiscal period during which the financial reporting measure specified in the Incentive Compensation award is attained, even if the payment or grant of the Incentive Compensation occurs after the end of that period. The determination of the time when the Company is “required” to prepare an Accounting Restatement shall be made in accordance with applicable SEC and national securities exchange rules and regulations.
(a) Definition of Incentive Compensation.
For purposes of this Policy, “Incentive Compensation” means any compensation that is granted, earned or vested based wholly or in part upon the attainment of a “financial reporting measure” (as defined in paragraph (b) below), including, for example, bonuses or awards under the Company’s short and long–term incentive plans, grants and awards under the Company’s equity incentive plans and contributions of such bonuses or awards to the Company’s deferred compensation plans or other employee benefit plans that are not tax–qualified plans. For the avoidance of doubt, Incentive Compensation that is deferred (either mandatorily or voluntarily) under the Company’s non–qualified deferred compensation plans, as well as any matching amounts and earnings thereon, are subject to this Policy. Incentive Compensation does not include awards that are granted, earned and vested without regard to attainment of financial reporting measures, such as time–vesting awards, discretionary awards and awards based wholly on subjective standards, strategic measures or operational measures.
For the avoidance of doubt, to the extent compensation under any of the following Company plans is granted, earned or vested based wholly or in part on the attainment of a financial reporting measure, it shall constitute Incentive Compensation subject to recovery under this Policy:
(1)Annual cash incentive awards granted pursuant to either (a) the CHS Annual Variable Pay Plan, as amended, or any successor plans, or (b) any individual cash incentive plans payable to Covered Executives or Directors,
Adopted by CHS Board of Directors September 6, 2023
(2)Annual cash awards earned under the CHS Profit Sharing Plan, and/or
(3)Cash–based performance awards granted pursuant to the CHS Long–Term Incentive Plan, as amended, the CHS Executive Long–Term Incentive Plan, as amended, or any successor plans, as amended.
(b) Financial Reporting Measures.
Financial reporting measures are those that are determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements (including non–GAAP financial measures) and any measures derived wholly or in part from such financial measures. For the avoidance of doubt, financial reporting measures include stock price and total shareholder return. A measure need not be presented within the financial statements or included in a filing with the SEC to constitute a financial reporting measure for purposes of this Policy.
(c) Excess Incentive Compensation: Amount Subject to Recovery.
The amount(s) to be recovered from the Covered Executive or Director will be the amount(s) by which the Covered Executive’s or Director’s Incentive Compensation for the relevant period(s) exceeded the amount(s) that the Covered Executive or Director otherwise would have received had such Incentive Compensation been determined based on the restated amounts contained in the Accounting Restatement. All amounts shall be computed without regard to taxes paid.
For avoidance of doubt, excess Incentive Compensation includes (i) any excess cash compensation earned by a Covered Executive or Director and (ii) any excess vested or unvested amounts that are deferred (either mandatorily or voluntarily) under the CHS Inc. Deferred Compensation Plan (“DCP”).
For Incentive Compensation based on financial reporting measures such as stock price or total shareholder return, where the amount of excess compensation is not subject to mathematical recalculation directly from the information in an Accounting Restatement, the Board will calculate the amount to be reimbursed based on a reasonable estimate of the effect of the Accounting Restatement on such financial reporting measure upon which the Incentive Compensation was received. The Company will maintain documentation of that reasonable estimate and will provide such documentation to the applicable national securities exchange.
Adopted by CHS Board of Directors September 6, 2023
(d) Method of Recovery.
The Board will determine, in its sole discretion, the method(s) for recovering reasonably promptly excess Incentive Compensation hereunder. Such methods may include, without limitation:
(i) requiring reimbursement of Incentive Compensation previously paid;
(ii) forfeiting any incentive compensation earned but unpaid;
(iii) forfeiting any Incentive Compensation contribution made under the Company’s deferred compensation plans (including the DCP);
(iv) offsetting the recovered amount from any compensation or Incentive Compensation that the Covered Executive or Director may earn or be awarded in the future (including, for the avoidance of doubt, recovering amounts earned or awarded in the future to such individual equal to compensation paid or deferred into tax–qualified plans or plans subject to the Employee Retirement Income Security Act of 1974 (collectively, “Exempt Plans”); provided that, no such recovery will be made from amounts held in any Exempt Plan of the Company);
(v) some combination of the foregoing; or
(vi) taking any other remedial and recovery action permitted by law, as determined by the Board.
5.No Indemnification or Advance.
Subject to applicable law, the Company shall not indemnify, including by paying or reimbursing for premiums for any insurance policy covering any potential losses, any Covered Executive or Directors against the loss of any erroneously awarded Incentive Compensation, nor shall the Company advance any costs or expenses to any Covered Executive or Directors in connection with any action to recover excess Incentive Compensation.
6.Interpretation.
The Board is authorized to interpret and construe this Policy and to make all determinations necessary, appropriate or advisable for the administration of this Policy. It is intended that this Policy be interpreted in a manner that is consistent with the requirements of Section 10D of the Exchange Act and any applicable rules or standards adopted by the SEC or any national securities exchange on which the Company’s securities are listed.
Adopted by CHS Board of Directors September 6, 2023
7.Effective Date.
The effective date of this Policy is December 1, 2023 (the “Effective Date”). This Policy applies to Incentive Compensation received by Covered Executive or Directors 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. Incentive Compensation received by Covered Executive or Directors prior to the Effective Date remains subject to the Company’s Incentive Compensation Recovery Policy, dated July 19, 2019, and the Company’s Director Performance–Based Deferred Compensation Recovery Policy, dated September 6, 2019. In addition, this Policy is intended to be and will be incorporated as an essential term and condition of any Incentive Compensation agreement, plan or program that the Company establishes or maintains on or after the Effective Date.
8.Amendment and Termination.
The Board may amend this Policy from time to time in its discretion and shall amend this Policy as it deems necessary to reflect changes in regulations adopted by the SEC under Section 10D of the Exchange Act and to comply with any rules or standards adopted by Nasdaq or any other securities exchange on which the Company’s shares are listed in the future.
9.Other Recovery Rights.
The Board intends that this Policy will be applied to the fullest extent of the law. The Board may require that any employment agreement or similar agreement relating to Incentive Compensation entered into on or after the Effective Date shall, as a condition to the grant of any benefit thereunder, require a Covered Executive or Director to agree 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 (i) other remedies or rights of compensation recovery that may be available to the Company pursuant to the terms of any similar policy in any employment agreement, or similar agreement relating to Incentive Compensation, unless any such agreement expressly prohibits such right of recovery, and (ii) any other legal remedies available to the Company. The provisions of this Policy are in addition to (and not in lieu of) any rights to repayment the Company may have under Section 304 of the Sarbanes–Oxley Act of 2002 and other applicable laws.
10.Impracticability.
The Company shall recover any excess Incentive Compensation in accordance with this Policy, except to the extent that certain conditions are met and the Board has determined that such recovery would be impracticable, all in accordance with Rule 10D of the Exchange Act and Nasdaq or any other securities exchange on which the Company’s shares are listed in the future.
11.Successors.
This Policy shall be binding upon and enforceable against all Covered Executive or Directors and their beneficiaries, heirs, executors, administrators or other legal representatives.
Adopted by CHS Board of Directors September 6, 2023
