June 6, 2018
Executives of public companies often receive a large part of their compensation in the form of company stock. This can be a great benefit as it aligns company performance with an executive’s goals. Therefore, the executive’s income has the potential to grow as she leads the company to success.
However, as part of their job, executives typically have access to “material nonpublic information” about the company. If they sell stock on the basis of this information, they would be guilty of violating federal, and possibly state, insider trading laws. Therefore, executives who receive compensation in the form of stock, stock options or restricted stock units (RSUs), need to manage their share sales very carefully.
Fortunately, the Securities Exchange Commission offers a solution — the 10b5-1 plan. If you are an executive or director of a public company, here’s what you need to know about setting up such a plan:
SEC Rule 10b5-1 defines the prohibition on insider trading. But it also provides an avenue to allow executives to trade shares of stock, and therefore diversify their holdings, without being accused of insider trading.
A 10b5-1 plan is a contract you file with the SEC that explicitly states you plan to sell company equity on a future date. It can be used for stock sales, stock option exercises, company repurchase programs, individual stock repurchase programs and restricted stock grant sales.
The plan must either detail the specific amount of stock, price and date; or it can be a formula, such as: “I plan to sell one-third of my available vested shares on the tenth trading day of the third quarter, as long as the price is above $10 a share.“ The instructions can specify either a market order or a limit order.
Plan details do not need to be made public. But company acknowledgment of the plan is required. And it may be in your best interest to have the company disclose that a plan exists in a Form 8-K.
If you are a high-ranking company official or board director with access to material nonpublic information, then yes. Not establishing a 10b5-1 plan can present serious risks.
First, although your company may have its own insider trading policy, filing a 10b5-1 plan further protects you from suspicion if you should happen to sell shares before a major, detrimental event.
Take the case of four Equifax senior executives who sold company shares before the enormous data theft of nearly 148 million personal records was publicly announced last September. They were subject to an internal investigation, and according to Bloomberg, a federal investigation involving three of the officials was also launched. Bloomberg said, “Regulatory filings don’t show that the transactions were part of pre-scheduled trading plans.”
All four were eventually cleared by the Equifax Board of Directors, which determined the executives had no prior knowledge of the breach before the sales, and the trades conformed with the company’s insider trading policy and had received preclearance by the firm’s compliance department.
The company’s report doesn’t say whether the executives had filed 10b5-1 plans beforehand, but they may have avoided serious investigations and bad publicity if they had.
Furthermore, if your investment portfolio has a high concentration of stock in the company you work for, it’s a good idea to gradually decrease your holdings as part of a detailed financial plan to diversify your portfolio and meet your financial goals. After all, most executives continue to earn significant amounts of deferred compensation in the form of equity grants. So selling shares on a regular, predetermined schedule makes sense.
Most companies require that plans be established during open window periods. And some companies may impose a waiting period before transactions can take place.
The plan is good for one year. If you cancel it, you can’t file another one for a year. You’re on your own if you trade company stock.
A plan may be modified only if you do not have possession of inside information at the time of the change. It’s best to discuss any modifications with company counsel.
Depending on the company’s policy, you may be able to buy or sell stock during blackout periods.
Hedging of shares within the plan is not allowed.
Your wealth manager can help you determine the price levels and number of shares to benefit your financial goals and protect yourself from insider trading issues. They will then work with the custodian firm, which executes the plan.
Receiving company equity as part of your compensation has the potential to be very rewarding financially, but it requires understanding of the many securities rules. Partnering with a wealth manager who’s experienced with executive compensation and 10b5-1 plans allows you to stay focused on your work, diversify your portfolio and efficiently implement your financial plan — all with more peace of mind.
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