United States: SEC Releases C&DIs On Compliance With New Insider Trading Disclosures

On May 25, 2023, the staff of the US Securities and Exchange Commission's Division of Corporation Finance released three Compliance and Disclosure Interpretations ("C&DIs") on the recent amendments to Rule 10b5-1 regarding insider trading arrangements and related disclosures. Specifically, C&DIs 120.26 and 120.27 identify the dates by which companies must first include the new disclosures in their periodic reports and proxy statements, while C&DI 120.28 clarifies timing considerations for individuals trading under separately maintained Rule 10b5-1 plans.

For additional information on the amendments to Rule 10b5-1, including a summary of the principal changes and a discussion of practical considerations, see our Legal Update.

The text of the new C&DI's are as follows:

C&DI Question 120.26: When are companies required to begin providing the quarterly Item 408(a) disclosures and the annual Item 402(x) and Item 408(b) disclosures (Item 16J of Form 20-F disclosures for foreign private issuers) in periodic reports?

Answer:  Release No. 33-11138 states that companies other than smaller reporting companies will be required to comply with the new disclosure and tagging requirements in Exchange Act periodic reports on Forms 10-Q, 10-K and 20-F "in the first filing that covers the first full fiscal period that begins on or after April 1, 2023." Therefore, the following compliance dates apply:

• December 31 fiscal year-end company - Quarterly disclosures must first be provided in the Form 10-Q for the period ended June 30, 2023, and should continue to be provided in the Form 10-Q for the period ended September 30, 2023 and the Form 10-K for the fiscal year ended December 31, 2023.
• June 30 fiscal year-end company - Quarterly disclosures must first be provided in the Form 10-K for the fiscal year ended June 30, 2023.
• December 31 fiscal year-end company - Annual disclosures must first be provided in the Form 10-K or 20-F for the fiscal year ended December 31, 2024.
• June 30 fiscal year-end company - Annual disclosures must first be provided in the Form 10-K or 20-F for the fiscal year ended June 30, 2024.

Smaller reporting companies must comply with these new disclosure and tagging requirements in the first filing that covers the first full fiscal period which begins on or after October 1, 2023. Therefore, the following compliance dates apply:

• December 31 fiscal year-end company - Quarterly disclosures must first be provided in the Form 10-K for the fiscal year ended December 31, 2023.
• June 30 fiscal year-end company - Quarterly disclosures must first be provided in the Form 10-Q for the period ended December 31, 2023.
• December 31 fiscal year-end company - Annual disclosures must first be provided in the Form 10-K or 20-F for the fiscal year ended December 31, 2024.
• June 30 fiscal year-end company - Annual disclosures must first be provided in the Form 10-K or 20-F for the fiscal year ended June 30, 2025.

C&DI Question 120.27: When are companies required to begin providing the disclosures in proxy or information statements?

Answer: For transition purposes only, companies other than smaller reporting companies must first provide this information in proxy statements for the first annual meeting for the election of directors (or information statements for consent solicitations in lieu thereof) after completion of the first full fiscal year beginning on or after April 1, 2023. Smaller reporting companies must first provide this information in proxy statements for the first annual meeting for the election of directors (or information statements for consent solicitations in lieu thereof) after completion of the first full fiscal year beginning on or after October 1, 2023.

C&DI Question 120.28: The Rule 10b5-1(c) affirmative defense generally is not available if a person has multiple Rule 10b5-1 contracts, instructions, or plans in place. However, Rule 10b5-1(c)(1)(ii)(D)(2) permits a person (other than the issuer) to maintain two separate Rule 10b5-1 plans at the same time so long as trading pursuant to the later-commencing plan is not authorized to begin until after all trades under the earlier-commencing plan are completed or have expired without execution. If an individual terminates the earlier-commencing plan (i.e., the earlier-commencing plan does not end by its terms and without any action by the individual), when can trading begin under the later-commencing plan?

Answer: Pursuant to Rule 10b5-1(c)(1)(ii)(D)(2), if an individual terminates the earlier-commencing plan, the later-commencing plan will be subject to an "effective cooling-off period." The effective cooling-off period will begin on the termination date of the earlier-commencing plan and will last for the time period specified in Rule 10b5-1(c)(1)(ii)(B). On the other hand, if the earlier-commencing plan ends by its terms without action by the individual, the cooling-off period for the later-commencing plan is not reset and trading may begin as soon as the plan's original cooling-off period is satisfied. Depending on when the later-commencing plan was adopted, this could be as soon as immediately after the earlier-commencing plan ends. See Footnote 180 of Release No. 33-11138.