SEC Declines Mandatory Disclosure of Rule 10b5-1 Trading Plans
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Originally published on this site July 11, 2003
As previously reported, under "Proposed Rule: Form 8-K Disclosure of Certain Management Transactions," Release No. 33-8090 et al., File No. S7-09-02 (Apr. 12, 2002), the SEC proposed that following events must be disclosed under the proposed Item 10:
Item 10 paragraph (a): Transactions in company equity securities (including derivative securities transactions and transactions with the company). This includes any transaction "that is the economic equivalent of a sale," such as a pledge of company equity securities pursuant to a non-recourse loan (or it "there is otherwise an expectation on the part of the director or executive officer that the loan will be repaid by foreclosure or other recourse to the securities, even if there is no formal arrangement.").
Item 10 paragraph (b): "[A]rrangements for the purchase or sale of company equity securities intended to satisfy the affirmative defense conditions of Rule 10b5-1(c)" -- i.e., trading plans. This includes the "adoption, modification or termination of a contract, instruction or written plan . . ." under Rule 10b5-1(c).
The SEC acknowledged that the required disclosure of this information was a new concept: "Section 16(a) filings do not report two categories of information -directors' and executive officers' arrangements under Exchange Act Rule 10b5-1 and their receipt of loans from, or guaranteed by, the company or an affiliate of the company -- that we believe also are of significant informational value and should be reported on a current basis." The SEC said that Form 8-K disclosure would not be required to establish availability of the trading plan (10b5-1(c)) affirmative defense; rather, the purpose of the disclosure rule was disclosure.
However, the enactment of the Sarbanes-Oxley Act gave the SEC other tasks to consider with respect to stock trading disclosure, included setting forth rules for accelerated disclosure. Thus, in "Ownership Reports And Trading By Officers, Directors And Principal Security Holders," Release No. 34-46313, File No. S7-31-02 (Aug. 6, 2002), the SEC reported that it was still considering mandatory disclosure of trading plans, but had not yet acted:
Accelerated reporting of officers' and directors' reportable transactions with an issuer exempted by Rule 16b-3 is necessary to satisfy the Act's purpose to require immediate disclosure of insider transactions. We previously solicited comment on this regulatory action [citing to the April 12 release]. In light of the Section 16(a) amendments enacted by Section 403 of the Act, we do not intend to consider further our proposed amendments discussed in that release to require companies to report directors' and executive officers' transactions in company equity securities. We continue to consider the other amendments proposed in that Release that would require companies to disclose information about (1) directors' and executive officers' arrangements intended to satisfy the affirmative defense conditions of Exchange Act Rule 10b5-1(c) and (2) company loans and loan guarantees to directors and executive officers that are not prohibited by Section 402 of the Act.
The Commission repeated in "Final Rule: Ownership Reports and Trading by Officers, Directors and Principal Security Holders," Release Nos. 34-46421 et al., File No. S7-31-02, n.37 (Aug. 27, 2002), that "we continue to consider the other amendments we proposed in the Form 8-K Release. These proposed amendments would require companies to disclose information about (1) directors' and executive officers' arrangements intended to satisfy the affirmative defense conditions of Exchange Act Rule 10b5-1(c) and (2) company loans and loan guarantees to directors and executive officers that are not prohibited by Section 402 of the Act.