By: Joe Marrow
Officers, directors and other insiders (“Company Insiders”) of publicly-traded companies use Rule 10b5-1 Trading Plans (a “10b5-1 Plan”) to buy and sell company stock at predetermined times so that such trading activity may occur regardless of whether the Company Insider is privy to material nonpublic information at the time of the trade. The SEC introduced 10b5-1 Plans in 2000 to permit Company Insiders to adopt a written trading plan to buy and sell company stock. A 10b5-1 Plan is generally structured as a contract between a Company Insider and his or her broker. The Company Insider must adopt the 10b5-1 Plan at a time when the Company Insider is not in possession of material non-public information. A 10b5-1 Plan must meet several requirements:
- It must be adopted when the Company Insider is not in possession of material non-public information;
- It must specify the amount of shares to be traded, the price at which the shares are to be traded (which can include a range of prices and a limit price) and specific dates of the trades, or alternatively, it can provide a formula for determining the amount, price and dates; and
- It must delegate to the broker the sole right to exercise control over the trading activity as long as the broker does not have knowledge of material non-public information at the time of the trade.
If the 10b5-1 Plan has been properly adopted, it provides the Company Insider with an affirmative defense to illegal insider trading and a means for discretionary selling. Not all public companies allow 10b5-1 Plans; however, many public companies consider such plans an effective method of dealing with concerns raised by the public regarding trading by Company Insiders. In considering whether to allow the adoption of such plans, companies should consider the following best practices that have developed surrounding 10b5-1 Plans:
- After adoption of the 10b5-1 Plan, but prior to allowing trading, the 10b5-1 Plan should establish a waiting period (30 to 90 days) before trading activity may commence;
- A public company should establish a policy only permitting adoption of a 10b5-1 Plan when a Company Insider is not aware of material nonpublic information (i.e., an open window);
- A public company should consider a minimum duration pursuant to which a 10b5-1 Plan must be kept in place (six months to two years to avoid market timing and to avoid risk to the Company Insider) or otherwise require preapproval of a cancellation of such 10b5-1 Plan (or require that such 10b5-1 Plan be terminated during an open trading window) to avoid allegations of bad faith;
- A public company should carefully consider whether to publicly announce the establishment of a 10b5-1 Plan – the markets will become aware of it in connection with ordinary course Section 16 filings so there may be a public relations benefit to announcing the 10b5-1 Plan at the time of its adoption; and
- A public company should consider implementing general oversight of 10b5-1 Plans by company counsel or a compliance officer.
Well constructed 10b5-1 Plans and corporate policies surrounding such plans can be effective tools to avoid and combat insider trading claims. Careful consideration should be given prior to permitting the use of 10b5-1 Plans and in implementing corporate governance policies related to such plans.
Any questions regarding this topic, please feel free to contact Joe Marrow.