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Nissan and Carlos Ghosn settle SEC claims over undisclosed compensation

WASHINGTON — Nissan and its former Chief Executive Carlos Ghosn have agreed to settle claims from the U.S. Securities and Exchange Commission over false financial disclosures related to Ghosn's compensation, an SEC statement said on Monday. Nissan will pay $15 million, while Ghosn agreed to a $1 million civil penalty and a 10-year ban from serving as an officer or director of a publicly traded U.S. company, the SEC statement said. Ghosn was arrested in Japan and fired by Nissan last year. He is awaiting trial in Tokyo on financial misconduct charges that he denies. Former Nissan human resources official Gregory Kelly agreed to a $100,000 penalty and a five-year officer and director ban. Nissan, Ghosn, and Kelly settled without admitting or denying the SEC's allegations and findings. The SEC said in total Nissan in its financial disclosures omitted more than $140 million to be paid to Ghosn in retirement — a sum that ultimately was not paid. The SEC also accused Ghosn in a suit filed in New York that he engaged in a scheme to conceal more than $90 million of compensation. That suit is being settled as part of the agreement announced Monday. Nissan confirmed it had settled the allegations and said it "is firmly committed to continuing to further cultivate robust corporate governance." Nissan provided significant cooperation to the SEC, the agency said. The company now has a new governance structure with three statutory committees — audit, compensation and nomination — and has amended its securities reports for all relevant years. The SEC said beginning in 2004 Nissan's board delegated to Ghosn the authority to set individual director and executive compensation levels, including his own. The SEC said "Ghosn and his subordinates, including Kelly, crafted various ways to structure payment of the undisclosed compensation after Ghosn's retirement, such as entering into secret contracts, backdating letters to grant Ghosn interests in Nissan's Long Term Incentive Plan, and changing the calculation of Ghosn's pension allowance to provide more than $50 million in additional benefits." "Investors are entitled to know how, and how much, a company compensates its top executives. Ghosn and Kelly went to great lengths to conceal this information from investors and the market," said Stephanie Avakian, co-director of the SEC's Division of Enforcement.

Carlos Ghosn: What misconduct is he accused of?

TOKYO — Japan was shocked by news that Nissan Motor Co. Chairman Carlos Ghosn, who was widely respected for rescuing the carmaker from near bankruptcy, was arrested on Monday for alleged financial misconduct. Nissan said that Ghosn, who is also chairman and CEO of Renault and chairman of Mitsubishi Motors, would be fired from his post as Nissan chairman on Thursday. What is Carlos Ghosn accused of? Nissan CEO Hiroto Saikawa told a packed press conference on Monday night that the company had found that Ghosn had been using corporate money for personal purposes and under-reporting his income for years in official company filings to the Tokyo Stock Exchange. Another board member, Greg Kelly, was also deeply involved in the misconduct, Nissan said. Saikawa said he couldn't elaborate as the cases are being investigated by prosecutors, who have declined to comment. Prosecutors said that Ghosn and Kelly conspired to understate Ghosn's compensation over five years starting in fiscal 2010 as being about half of the actual 9.998 billion yen ($88.9 million). Public broadcaster NHK said Nissan paid billions of yen to buy and renovate homes for Ghosn in Rio, Beirut, Paris and Amsterdam, citing unnamed sources. The properties had no business purpose and were not listed as benefits in TSE filings, NHK said. Ghosn, 64, has not been formally charged. The Asahi newspaper reported that he and Kelly had submitted to prosecutors' questions after getting off a plane on Monday afternoon at Tokyo's Haneda Airport. Saikawa confirmed they had been arrested. Ghosn and Kelly have not been seen since, and their exact whereabouts are not known. Suspects are typically taken to the Tokyo Detention Center, which is linked to the Tokyo District Public Prosecutors Office. How did this come to light? Nissan's Saikawa said Ghosn's alleged improprieties came to light through a whistleblower, after which the company began an internal investigation and informed prosecutors. Japanese media reports say the informant is a member of Nissan's legal department. The Asahi reported, without citing sources, that the informant gave the prosecutors information in a plea bargain, implying the person may have provided evidence in exchange for a lighter sentence. How much control did Carlos Ghosn have? After becoming CEO of struggling Nissan in 2001, Ghosn was hailed as the automaker's savior by implementing an aggressive cost-cutting plan.

Ghosn out at Nissan, still in at Renault, still in jail in Tokyo and facing more charges

When the corporate jet carrying Renault- Nissan- Mitsubishi CEO Carlos Ghosn landed at Tokyo Haneda airport on November 19, Japanese authorities had already taken position on the tarmac, waiting for him. Police and authorities representing Tokyo prosecutor's office boarded the plane to query Ghosn about financial improprieties, and ended up taking Nissan's chairman and CEO into custody. A few days later, on November 22, Nissan's board voted to remove Ghosn from both positions for what it classified as "significant acts of misconduct." The charges include understating his income in filings to the Tokyo Stock Exchange by at least $44 million, and misusing company funds. Japanese police arrested Greg Kelly as well, the high-ranking Nissan exec said to have assisted Ghosn in the subterfuge. Ghosn and Kelly remain on Nissan's board until a shareholder vote is held to decide those positions. Kelly was Nissan's first American director, and the carmaker's former head of human resources. In France, Renault's board voted to keep Ghosn in his positions, and has requested details from Nissan about the alleged improprieties. The board put Thierry Bollore in the role of deputy CEO with all of Ghosn's powers while Ghosn is "incapacitated," and lead independent director Philippe Lagayette will act as temporary chairman. Nissan has since told Renault that it is investigating financial malfeasance at RNBV, the Amsterdam-based joint-venture company that oversees the alliance. Mitsubishi has watched from afar, only saying it will perform its own investigation, and could remove Ghosn. Tokyo police can hold a suspect for 72 hours for initial questioning without charges. With the deadline looming, Tokyo prosecutors asked the court for, and were granted, a ten-day extension. If they choose, prosecutors can request another ten-day extension. Within 23 days, however, prosecutors either need to charge Ghosn and Kelly, or release them. There are several charges that acquire more details by the day. The most serious accusation is that Ghosn understated his pay from 2011 to 2015 by half, claiming roughly $44 million in remuneration when he actually received around $88 million. Over the weekend, it came out that Japanese prosecutors could be working on new charges of Ghosn under-reporting his salary since 2015 by $27 million. A Japanese newspaper said Ghosn told Kelly in an email to lie on the financial statements.