Federal Register: January 28, 2003 (Volume 68, Number 18)
DOCID: FR Doc 03-1884
SECURITIES AND EXCHANGE COMMISSION
Veterans Affairs Department
CFR Citation: 17 CFR Parts 240, 245 and 249
RIN ID: RIN 3235-AI71
DOCUMENT ID: [Release No. 34-47225; IC-25909; File No. S7-44-02]
NOTICE: Part III
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Insider Trades During Pension Fund Blackout Periods
DATES: Effective Date: January 26, 2003. Compliance Date: Issuers must comply with Sec. 245.104(b)(3)(i) and (iii) of Regulation BTR beginning March 31, 2003.
DOCUMENT SUMMARY:
We are adopting rules that clarify the application and prevent evasion of Section 306(a) of the SarbanesOxley Act of 2002. Section 306(a) prohibits any director or executive officer of an issuer of any equity security from, directly or indirectly, purchasing, selling or otherwise acquiring or transferring any equity security of the issuer during a pension plan blackout period that temporarily prevents plan participants or beneficiaries from engaging in equity securities transactions through their plan accounts, if the director or executive officer acquired the equity security in connection with his or her service or employment as a director or executive officer. In addition, the rules specify the content and timing of the notice that issuers must provide to their directors and executive officers and to the Commission about a blackout period. The rules are designed to facilitate compliance with the will of Congress as reflected in Section 306(a), and to eliminate the inequities that may result when pension plan participants and beneficiaries are temporarily prevented from engaging in equity securities transactions through their plan accounts.
SUMMARY:
Securities and Exchange Commission,
SUPPLEMENTAL INFORMATION
We are adopting new Regulation BTR \1\ under
the Securities Exchange Act of 1934 (the ``Exchange Act'')\2\ and
amendments to Exchange Act Rules 13a11\3\ and 15d11\4\ and to Forms 20F,\5\ 40F \6\ and 8K \7\ under the Exchange Act.
\1\ 17 CFR 245.100104.
\2\ 15 U.S.C. 78a et seq.
\3\ 17 CFR 240.13a11.
\4\ 17 CFR 240.15d11.
\5\ 17 CFR 249.220f.
\6\ 17 CFR 249.240f.
\7\ 17 CFR 249.308.
I. Introduction
On July 30, 2002, the SarbanesOxley Act of 2002 (the ``Act'') was
enacted.\8\ Section 306(a) of the Act,\9\ entitled ``Prohibition of
Insider Trading During Pension Fund Blackout Periods,'' makes it
unlawful for any director or executive officer of an issuer of any
equity security, directly or indirectly, to purchase, sell or otherwise
acquire or transfer any equity security of the issuer during any
pension plan blackout period with respect to such equity security, if
the director or executive officer acquired the equity security in
connection with his or her service or employment as a director or
executive officer.\10\ Section 306(a) also requires an issuer to timely
notify its directors and executive officers and the Commission of a
blackout period that could affect them.\11\ Section 306(a) takes effect
January 26, 2003, 180 days after the date of enactment of the Act.\12\ \8\ Pub. L. 107204, 116 Stat. 745 (2002).
\9\ 15 U.S.C. 7244(a).
\10\ Section 306(a)(1) of the Act [15 U.S.C. 7244(a)(1)].
\11\ Section 306(a)(6) of the Act [15 U.S.C. 7244(a)(6)]. \12\ Section 306(c) of the Act [15 U.S.C. 7244(c)].
Section 306(a) equalizes the treatment of corporate executives and rankandfile employees with respect to their ability to engage in transactions involving issuer equity securities during a pension plan blackout period if the securities have been acquired in connection with their service to, or employment with, the issuer. When a director or executive officer engages in a transaction involving issuer equity securities at a time when participants or beneficiaries in the issuer's pension plans cannot engage in similar transactions through their plan accounts, the director or executive officer obtains an unfair advantage that the statute seeks to ameliorate. Section 306(a) restricts the ability of directors and executive officers to trade in such securities until a pension plan blackout period has ended and the ability to trade through the pension plan has been restored to plan participants and beneficiaries. This should align the interests of directors and executive officers more closely with those of the rankandfile employees who engage in transactions involving issuer equity securities through an issuer's pension plans.
After consulting with the Secretary of Labor, we proposed new
Regulation Blackout Trading Restriction (``BTR'') on November 6, 2002
to clarify the scope and operation of Section 306(a) and to prevent
evasion of the statutory trading prohibition.\13\ We received 18
letters commenting on the Proposing Release.\14\ Many commenters
suggested changes to the proposed rules to better achieve the purposes
of section 306(a). Today, we are adopting Regulation BTR, which has
been revised as discussed below, to incorporate a number of the changes recommended by commenters.
\13\ Release No. 3446778 (Nov. 2, 2002) [67 FR 69430] (the ``Proposing Release'').
\14\ The commenters included six members of the legal and
accounting communities, eight professional associations, three
issuers and one individual investor. These comment letters and a
summary of comments are available for public inspection and copying
in our Public Reference Room, 450 Fifth Street, NW, Washington, DC 20549, in File No. S74402. Public comments submitted
electronically and the summary of comments is available on our Web
site http://www.sec.gov. II. Regulation BTR
A. Statutory Trading Prohibition
As adopted, Regulation BTR addresses the operation of section
306(a) of the Act and its prohibition against trading in issuer equity
securities by an issuer's directors and executive officers during a pension plan blackout period as follows:
[sbull] New Rule 100 \15\ defines terms used in Section 306(a) and Regulation BTR.
\15\ 17 CFR 245.100.
[sbull] New Rule 101 \16\ clarifies the operation of the Section
306(a) trading prohibition and establishes several exemptions from the prohibition.
\16\ 17 CFR 245.101.
[sbull] New Rule 102 \17\ describes the exceptions to the
definition of ``blackout period'' set forth in Section 306(a)(4)(A) of the Act.\18\
\17\ 17 CFR 245.102.
\18\ 15 U.S.C. Sec. 7244(a)(4)(A).
[sbull] New Rule 103 \19\ clarifies the operation of the private
remedy for a violation of the Section 306(a) trading prohibition, including a method for calculation of recoverable profits.
\19\ 17 CFR 245.103.
[sbull] New Rule 104 \20\ sets forth the content and delivery
requirements for the notice that an issuer must provide in connection with a blackout period.
\20\ 17 CFR 245.104.
As proposed and adopted, in order to give effect to section 306(a)
in a manner consistent with Congressional intent, we are incorporating a number of concepts developed under Section 16 of the
[[Page 4339]]
Exchange Act \21\ into Regulation BTR. By doing so, we are able to take
advantage of a wellestablished body of rules and interpretations
concerning the trading activities of corporate insiders and, as to
directors and executive officers of domestic issuers, facilitate
enforcement of the Section 306(a) trading prohibition through
monitoring of the reports publicly filed by directors and executive
officers pursuant to Section 16(a) of the Exchange Act.\22\
\21\ 15 U.S.C. 78p. Because the purposes of Section 306(a) of
the Act and Section 16 of the Exchange Act are not identical,
however, we note that Section 306(a) and Regulation BTR will not
always be interpreted the same as Section 16 if these purposes diverge or the interests of investors require a different
interpretation.
\22\ 15 U.S.C. 78p(a).
B. Discussion
1. Issuers Subject to Trading Prohibition
Section 306(a) of the Act applies to directors and executive
officers of issuers as defined in Section 2(a)(7) of the Act.\23\
Consistent with this definition, new Rule 100(k) of Regulation BTR \24\
provides that the term ``issuer'' means an issuer (as defined in Section 3(a)(8) of the Exchange Act \25\):
\23\ 15 U.S.C. 7201(7).
\24\ 17 CFR 245.100(k).
\25\ 15 U.S.C. 78c(a)(8). Section 3(a)(8) of the Exchange Act
defines the term ``issuer'' to mean ``any person who issues or
proposes to issue any security; except that with respect to
certificates of deposit for securities, votingtrust certificates,
or collateraltrust certificates, or with respect to certificates of
interest or shares in an unincorporated investment trust not having
a board of directors or of the fixed, restricted management, or unit
type, the term ``issuer'' means the person or persons performing the
acts and assuming the duties of depositor or manager pursuant to the
provisions of the trust or other agreement or instrument under which
such securities are issued; and except that with respect to
equipmenttrust certificates or like securities, the term ``issuer''
means the person by whom the equipment or property is, or is to be, used.''
[sbull] The securities of which are registered under Section 12 of the Exchange Act; \26\
\26\ 15 U.S.C. 78l.
[sbull] That is required to file reports under Section 15(d) of the Exchange Act; \27\ or
\27\ 15 U.S.C. 78o(d).
[sbull] That files, or has filed, a registration statement that has
not yet become effective under the Securities Act of 1933 (the
``Securities Act'') \28\ and that the issuer has not withdrawn. \28\ 15 U.S.C. 77a et seq.
Accordingly, Section 306(a) and Regulation BTR apply to the
directors and executive officers of domestic issuers, foreign private
issuers, small business issuers and, in rare instances, registered investment companies.\29\
\29\ For a discussion of the application of Regulation BTR to
registered investment companies, see the Proposing Release at Section II.B.1.d.
While some commenters questioned the application of Section 306(a)
to foreign private issuers,\30\ the statute, by its terms, applies to
these issuers.\31\ However, Regulation BTR limits Section 306(a)'s
application to the directors and executive officers of a foreign
private issuer to situations where 50% or more of the participants or
beneficiaries located in the United States in individual account plans
maintained by the issuer are subject to a temporary trading suspension
in issuer equity securities, and the affected participants and
beneficiaries represent an appreciable portion of the issuer's worldwide employees.\32\
\30\ See the Letter dated December 24, 2002 of the American Bar
Association (the ``ABA Letter'') and the Letter dated November 27, 2002 of the Organization for International Investment.
\31\ Exchange Act Rule 3b4(c) [17 CFR 240.3b4(c)] defines the
term ``foreign private issuer'' to mean ``any foreign issuer other
than a foreign government except an issuer meeting the following
conditions: (1) more than 50% of the issuer's outstanding voting
securities are directly or indirectly held of record by residents of
the United States; and (2) any of the following: (i) The majority of
the executive officers or directors are United States citizens or
residents; (ii) more than 50% of the assets of the issuer are
located in the United States; or (iii) the business of the issuer is administered principally in the United States.''
\32\ See Section II.B.5.d below.
Similarly, Section 306(a) does not distinguish between large and
small issuers. Accordingly, the statute applies to any entity that
satisfies the definition of ``issuer'' under Section 2(a)(7) of the Act
without regard to the entity's size, including a ``small business
issuer.'' \33\ One commenter indicated that the compliance burden for
small business issuers would not be disproportionate to the benefits to
be obtained from compliance with Section 306(a) since concerns related
to trading by corporate insiders are not unique to large issuers.\34\
\33\ Item 10(a)(1) of Regulation SB [17 CFR 228.10(a)(1)]
defines the term ``small business issuer'' to mean ``a company that
meets all of the following criteria: (i) Has revenues of less than
$25,000,000; (ii) is a U.S. or Canadian issuer; (iii) is not an
investment company; and (iv) if a majorityowned subsidiary, the
parent corporation is also a small business issuer. Provided
however, that an entity is not a small business issuer if it has a
public float (the aggregate market value of the issuer's outstanding
securities held by nonaffiliates) of $25,000,000 or more.'' \34\ See the Letter dated December 16, 2002 of
PricewaterhouseCoopers LLP (the ``PWC Letter'').
2. Persons Subject to Trading Prohibition
Section 306(a) of the Act applies to directors and executive
officers of issuers subject to the Act. While one commenter expressly
supported the proposed definitions for these terms,\35\ some commenters
suggested that we use the existing definition in Exchange Act Rule 3b7
\36\ to define the term ``executive officer.'' \37\ We continue to
believe that the broader definition in Exchange Act Rule 16a1(f) \38\
is more suitable for purposes of Section 306(a) and Regulation BTR
because of its focus on the policymaking functions of the individual
in question.\39\ In addition, as some commenters noted, this definition
will make it easier for domestic issuers to coordinate their trading
policies for their corporate insiders who are subject to Section 16 of
the Exchange Act and monitor compliance with both Section 16 and
Section 306(a). Accordingly, new Rule 100(c)(1) of Regulation BTR \40\
provides that, except in the case of a foreign private issuer, the term
``director'' has the meaning set forth in Section 3(a)(7) of the Exchange Act \41\
[[Page 4340]]
and new Rule 100(h)(1) \42\ provides that, except in the case of a
foreign private issuer, the term ``executive officer'' has the same
meaning as the term ``officer'' in Exchange Act Rule 16a1(f). \35\ See the PWC Letter.
\36\ 17 CFR 240.3b7. This definition differs from the
definition in Exchange Act Rule 16a1(f) [17 CFR 240.16a1(f)] in
that it does not expressly include an issuer's principal financial
officer or principal accounting officer (or controller). It also
does not expressly cover officers of a parent corporation or explain
how to identify an issuer's executive officers when the issuer is a limited partnership or trust.
\37\ See the Letter dated December 16, 2002 of America's
Community Bankers (the ``ACB Letter'') and the Letter dated December
16, 2002 of the Profit Sharing/401k Council of America (the ``PSCA Letter'').
\38\ Exchange Act Rule 16a1(f) defines the term ``officer'' to
mean ``an issuer's president, principal financial officer, principal
accounting officer (or, if there is no such accounting officer, the
controller), any vicepresident of the issuer in charge of a
principal business unit, division or function (such as sales,
administration or finance), any other officer who performs a policy
making function, or any other person who performs similar policy
making functions for the issuer. Officers of the issuer's parent(s)
or subsidiaries shall be deemed officers of the issuer if they
perform such policymaking functions for the issuer. In addition,
when the issuer is a limited partnership, officers or employees of
the general partner(s) who perform policymaking functions for the
limited partnership are deemed officers of the limited partnership.
When the issuer is a trust, officers or employees of the trustee(s)
who perform policymaking functions for the trust are deemed officers of the trust.''
\39\ Thus, the standard for determining whether an individual is
an ``executive officer'' for purposes of Section 306(a) of the Act
and Regulation BTR is the same as the standard applicable under
Exchange Act Rule 16a1(f). For example, the term ``policymaking
functions'' does not include policymaking functions that are not
significant. Similarly, if pursuant to Item 401(b) of Regulation SK
[17 CFR 229.401(b)], an issuer identifies an individual as an
``executive officer,'' it will be presumed that the board of
directors of the issuer made that judgment and that the individuals
so identified are executive officers of the issuer for purposes of
Section 306(a) and Regulation BTR, as are such other persons
enumerated in Exchange Act Rule 16a1(f) but not in Item 401(b). See the note to Exchange Act Rule 16a1(f).
\40\ 17 CFR 245.100(c)(1).
\41\ 15 U.S.C. 78c(a)(7). As we have previously noted, this definition reflects a functional and flexible approach to
determining whether a person is a director of an entity. See Release
No. 3446685 (Oct. 18, 2002) [67 FR 65325] at n. 7. Thus, for
purposes of Section 306(a) of the Act and Regulation BTR, an
individual's title is not dispositive as to whether he or she is a
director. As under Section 16 of the Exchange Act, attention must be
given to the individual's underlying responsibilities or privileges
with respect to the issuer and whether he or she has a significant
policymaking role with the issuer. See Release No. 3428869 (Feb.
21, 1991) [56 FR 7242], at Section II.A.1. An individual may hold
the title ``director'' and yet, because he or she is not acting as
such, not be deemed a director. Release No. 3426333 (Dec. 2, 1988) [53 FR 49997], at Section III.A.2.
\42\ 17 CFR 245.100(h)(1).
In the case of a foreign private issuer, the commenters supported
our proposal to specifically identify the directors and executive officers that are subject to the Section 306(a) trading
prohibition.\43\ Thus, new Rule 100(c)(2) of Regulation BTR \44\
provides that the term ``director'' means a director who is a
management employee of the issuer and new Rule 100(h)(2) \45\ provides
that the term ``executive officer'' means the principal executive
officer or officers, the principal financial officer or officers and
the principal accounting officer or officers of the issuer.
\43\ See the ABA Letter and the Letter dated December 16, 2002
of Cleary, Gottlieb, Steen & Hamilton (the ``Cleary Letter''). \44\ 17 CFR 245.100(c)(2).
\45\ 17 CFR 245.100(h)(2).
3. Securities Subject to Trading Prohibition
Section 306(a) of the Act applies to any equity security of an
issuer other than an exempt security.\46\ We did not receive any
comments regarding the proposed definitions for the terms ``equity
security,'' ``equity security of the issuer'' and ``derivative
security.'' Accordingly, new Rule 100(e) of Regulation BTR \47\
provides that the term ``equity security'' has the meaning set forth in
Section 3(a)(11) of the Exchange Act \48\ and Exchange Act Rule 3a11
1,\49\ new Rule 100(f) \50\ provides that the term ``equity security of
the issuer'' includes any equity security or derivative security
relating to an issuer, whether or not issued by that issuer, and new
Rule 100(d) \51\ provides that the term ``derivative security'' has the same meaning as in Exchange Act Rule 16a1(c).\52\
\46\ New Rule 100(i) of Regulation BTR [17 CFR 245.100(i)]
defines the term ``exempt security'' by reference to the definition
in Section 3(a)(12) of the Exchange Act [15 U.S.C. 78c(a)(12)]. \47\ 17 CFR 245.100(e).
\48\ 15 U.S.C. 78c(a)(11). Section 3(a)(11) of the Exchange Act
defines the term ``equity security'' to mean ``any stock or similar
security; or any security future on any such security; or any
security convertible, with or without consideration, into such a
security, or carrying any warrant or right to subscribe to or
purchase such a security; or any such warrant or right; or any other
security which the Commission shall deem to be of similar nature and
consider necessary or appropriate, by such rules and regulations as
it may prescribe in the public interest or for the protection of investors, to treat as an equity security.''
\49\ 17 CFR 240.3a111. Exchange Act Rule 3a111 defines the
term ``equity security'' to mean ``any stock or similar security,
certificate of interest or participation in any profit sharing
agreement, preorganization certificate or subscription, transferable
share, voting trust certificate or certificate of deposit for an
equity security, limited partnership interest, interest in a joint
venture, or certificate of interest in a business trust; any
security future on any such security; or any security convertible,
with or without consideration into such a security, or carrying any
warrant or right to subscribe to or purchase such a security; or any
such warrant or right; or any put, call, straddle, or other option
or privilege of buying such a security from or selling such a security to another without being bound to do so.''
\50\ 17 CFR 245.100(f).
\51\ 17 CFR 245.100(d).
\52\ 17 CFR 240.16a1(c). Exchange Act Rule 16a1(c) defines the
term ``derivative securities'' to mean ``any option, warrant,
convertible security, stock appreciation right, or similar right
with an exercise or conversion privilege at a price related to an
equity security, or similar securities with a value derived from the
value of an equity security, but shall not include: (1) Rights of a
pledgee of securities to sell the pledged securities; (2) rights of
all holders of a class of securities of an issuer to receive
securities pro rata, or obligations to dispose of securities, as a
result of a merger, exchange offer, or consolidation involving the
issuer of the securities; (3) rights or obligations to surrender a
security, or have a security withheld, upon the receipt or exercise
of a derivative security or the receipt or vesting of equity
securities, in order to satisfy the exercise price or the tax
withholding consequences of receipt, exercise or vesting; (4)
interests in broadbased index options, broadbased index futures,
and broadbased publicly traded market baskets of stocks approved
for trading by the appropriate federal governmental authority; (5)
interests or rights to participate in employee benefit plans of the
issuer; or (6) rights with an exercise or conversion privilege at a
price that is not fixed; or (7) options granted to an underwriter in
a registered public offering for the purpose of satisfying over allotments in such offering.''
In the case of a derivative security, the definition in new Rule 100(d) is to be interpreted in a manner consistent with the rules and interpretations under Section 16 of the Exchange Act. For example, an interest that may be settled only in cash, but the value of which is denominated or based on an equity security, such as phantom stock, will be considered a derivative security for purposes of Section 306(a) and Regulation BTR. Consequently, an acquisition of a ``cashonly'' derivative security or the exercise, sale or other transfer of the security during a blackout period will be subject to the Section 306(a) trading prohibition unless the transaction qualifies as an exempt transaction under Regulation BTR.
4. Transactions Subject to Trading Prohibition
Section 306(a) of the Act makes it unlawful for a director or
executive officer of an issuer of any equity security, directly or
indirectly,\53\ to purchase, sell or otherwise acquire or transfer any
equity security of the issuer during a pension plan blackout period
with respect to the equity security, if the director or executive
officer ``acquires such equity security in connection with his or her
service or employment as a director or executive officer.'' While
Section 306(a) uses the word ``acquires'' to describe the equity
securities that are subject to the statutory trading prohibition, we
believe that Congress intended to cover both equity securities that a
director or executive officer ``acquired'' before, or ``acquires''
during, a pension plan blackout period.\54\ Thus, we read the Section 306(a) trading prohibition to cover:
\53\ Under Regulation BTR, a purchase, sale or other acquisition
or transfer of an equity security will be attributed to a director
or executive officer if he or she has a pecuniary interest in the
transaction. To promote consistency and to simplify compliance, new
Rule 100(l) of Regulation BTR [17 CFR 100(l)] defines the terms
``pecuniary interest'' and ``indirect pecuniary interest'' by
reference to the definitions in Exchange Act Rule 16a1(a)(2) [17
CFR 240.16a1(a)(2)]. The definition in new Rule 100(l) also
encompasses the portfolio exclusion of Exchange Act Rule 16a 1(a)(2)(iii) [17 CFR 240.16a1(a)(2)(iii)].
\54\ This interpretation of the statute is reflected in new Rule 101(a) of Regulation BTR [17 CFR 245.101(a)].
[sbull] An acquisition of issuer equity securities by a director or
executive officer during a blackout period if the acquisition is in
connection with his or her service or employment as a director or executive officer; and
[sbull] A disposition of issuer equity securities by a director or
executive officer during a blackout period if the disposition involves
issuer equity securities acquired in connection with his or her service or employment as a director or executive officer.\55\
\55\ Accordingly, a transaction involving equity securities that
are not acquired in connection with service or employment as a
director or executive officer is not subject to the Section 306(a) trading prohibition.
[[Page 4341]]
(a) ``Acquired in Connection with Service or Employment as a Director or Executive Officer''.
As adopted, new Rule 100(a) of Regulation BTR \56\ defines the term
``acquired such equity security in connection with service or
employment as a director or executive officer'' to include equity securities acquired by a director or executive officer:
\56\ 17 CFR 245.100(a).
[sbull] At a time when he or she was a director or executive
officer under a compensatory plan, contract, authorization or
arrangement,\57\ including, but not limited to, plans relating to
options, warrants or rights, pension, retirement or deferred
compensation or bonus, incentive or profitsharing (whether or not set
forth in any formal plan document), including a compensatory plan,
contract, authorization or arrangement with a parent, subsidiary or affiliate;
\57\ The scope of the phrase ``compensatory plan, contract,
authorization or arrangement'' includes a ``plan'' as defined in
Item 402(a)(7)(ii) of Regulation SK [17 CFR 229.402(a)(7)(ii)], as
well as an ``employee benefit plan'' as defined in Securities Act Rule 405 [17 CFR 230.405].
[sbull] At a time when he or she was a director or executive
officer as a result of any transaction or business relationship
described in paragraph (a) or (b) of Item 404 of Regulation SK \58\
or, in the case of a foreign private issuer, Item 7.B of Form 20F (but
without application of the disclosure thresholds of such provisions),
to the extent that he or she has a pecuniary interest \59\ in the equity securities;
\58\ 17 CFR 229.404(a) or (b). The descriptions in Item 404(a)
and (b) of Regulation SK are to be used without regard to whether
the issuer is a ``small business issuer'' subject to the disclosure requirements of Regulation SB [17 CFR 228.10 et seq.].
\59\ See n. 53 above.
[sbull] At a time when he or she was a director or executive
officer, as ``director's qualifying shares'' or other securities that
he or she must hold to satisfy minimum ownership requirements or guidelines for directors or executive officers;
[sbull] Prior to becoming, or while, a director or executive
officer where the equity security was acquired as a direct or indirect
inducement to service or employment as a director or executive officer; or
[sbull] Prior to becoming, or while, a director or executive
officer where the equity security was received as a result of a
business combination in respect of an equity security of an entity
involved in the business combination that he or she had acquired in
connection with service or employment as a director or executive officer of that entity.
Several commenters expressed concern that, as proposed, the definition was overly broad.\60\ One commenter objected to treating equity securities acquired in an armslength, commercial transaction that is subject to disclosure under Item 404(a) or (b) of Regulation S K as ``acquired in connection with service or employment as a director or executive officer.''\61\ While this aspect of the definition may reach equity securities that were, in fact, acquired in armslength, commercial transactions, we believe that it is necessary to prevent evasion of the trading prohibition of Section 306(a) of the Act. \60\ See the ABA Letter, the ACB Letter, the PSCA Letter, the PWC Letter and the Letter dated December 16, 2002 of Sullivan & Cromwell (the ``S&C Letter'').
\61\ See the ACB Letter.
Some commenters opposed treating equity securities acquired to
satisfy minimum ownership requirements or guidelines as subject to the
Section 306(a) trading prohibition, arguing that securities purchased
in the open market are not ``acquired in connection with service or
employment as a director or executive officer,'' regardless of the
extrinsic motivation, and that the proposed definition was contrary to
the statutory language and the intent of Section 306(a).\62\ They also
asserted that requiring a director or executive officer subject to
minimum ownership requirements or guidelines to identify and track
equity securities purchased in the open market to satisfy such
requirements or guidelines would impose an unjustified administrative burden.
\62\ See the ABA Letter, the PSCA Letter and the S&C Letter.
We agree that equity securities purchased in the open market before an individual becomes a director or executive officer (and, thus, before the minimum ownership requirements or guidelines apply) should not be subject to the Section 306(a) trading prohibition even if they are used to satisfy the ownership requirements or guidelines after the individual becomes a director or executive officer. We, therefore, revised this aspect of the definition to indicate that equity securities used as directors' qualifying shares or to satisfy an issuer's minimum security ownership requirements or guidelines will be considered ``acquired in connection with service or employment as a director or executive officer'' only where an individual acquires the equity securities at a time when he or she is a director or executive officer of the issuer. Since these equity securities are clearly ``acquired in connection with service or employment as a director or executive officer,'' we do not believe that it is overly burdensome to require directors and executive officers to identify and track these securities for purposes of Section 306(a).
Some commenters objected to treating equity securities acquired by an individual before becoming a director or executive officer as ``acquired in connection with service or employment as a director or executive officer'' if the equity securities were awarded to induce the individual to become an employee or nonexecutive officer of the issuer.\63\ These commenters argued that subjecting these equity securities to the statutory trading prohibition at the time an employee or nonexecutive officer is promoted to director or executive officer status was contrary to the statutory language and did not serve the goals of Section 306(a). They suggested that inducement awards be treated as ``acquired in connection with service or employment as a director or executive officer'' only if they are directly related to an individual becoming a director or executive officer. Because, in some situations, an equity securities award to an individual joining an issuer as an employee or nonexecutive officer may be an inducement related to subsequent service or employment as a director or executive officer, we chose not to exclude inducement awards related to becoming an employee or nonexecutive officer from the definition. Instead, to ensure that this type of inducement award is not used to evade the statutory trading prohibition, we revised the definition to make it clear that an award acquired as a direct or indirect inducement to service or employment as a director or executive officer will be considered ``acquired in connection with service or employment as a director or executive officer.'' Awards that are an inducement to becoming an employee or nonexecutive officer, but are not a direct or indirect inducement to service or employment as a director or executive officer, will not be considered ``acquired in connection with service or employment as a director or executive officer.''
\63\ See the ACB Letter and the S&C Letter.
Finally, commenters requested clarification on one other aspect of
the definition. New Rule 100(a)(5) of Regulation BTR \64\ makes clear
that, in the case of equity securities acquired in connection with a
merger, consolidation or other business combination by an individual
who was a director or executive officer of the target entity and is to
become a director or executive officer of the acquiring entity at the time
[[Page 4342]]
of, or following the completion of, the transaction, the securities
will be considered ``acquired in connection with service or employment
as a director or executive officer'' to the extent that they are
received in respect of equity securities of the target entity that were
``acquired in connection with service or employment as a director or
executive officer'' of the target entity.\65\ For example, where an
executive officer of a target entity becomes an executive officer of
the acquiring entity in connection with a business combination and, in
the transaction, receives equity securities of the acquiring entity in
respect of equity securities of the target entity that he or she owned,
the equity securities received will be considered ``acquired in
connection with service or employment as a director or executive
officer'' only to the extent that they are received in respect of
securities that were previously ``acquired in connection with service
or employment as a director or executive officer'' of the target entity.
\64\ 17 CFR 245.100(a)(5).
\65\ In addition, equity securities acquired in connection with
a merger, consolidation or other business combination by an
individual (whether or not a director or executive officer of the
target entity) as an inducement to becoming a director or executive
officer of the acquiring entity will be considered ``acquired in
connection with service or employment as a director or executive
officer.'' See new Rule 100(a)(4) of Regulation BTR [17 CFR 245.100(a)(4)].
(b) Service or Employment Presumption.
To simplify identification of equity securities involved in a
disposition subject to the trading prohibition of Section 306(a)(1) of
the Act and to prevent evasion of the trading prohibition, we proposed
an irrebuttable presumption that any equity securities sold or
otherwise transferred during a blackout period were ``acquired in
connection with service or employment as a director or executive
officer'' to the extent that a director or executive officer owned such
securities at the time of the transaction, without regard to the actual
source of the securities. One commenter supported the proposed
presumption, citing the difficulty in tracing the actual source of the
securities disposed.\66\ However, most commenters opposed the
presumption, asserting that because it would treat all equity
securities held as fungible, it would act as an absolute bar on sales
or other dispositions during a blackout period, regardless of how the
securities actually were acquired. \67\ Some commenters indicated that,
because a violation of Section 306(a)(1) is not limited to a private
action for profit recovery, an irrebuttable presumption would
potentially expose directors and executive officers to civil and
criminal penalties.\68\ They argued that the proposed presumption would
effectively erase the ``acquired in connection with service or
employment as a director or executive officer'' requirement from Section 306(a) of the Act.
\66\ See the PWC Letter.
\67\ See, for example, the ABA Letter, the Letter dated December
16, 2002 of Intel Corporation (the ``Intel Letter'') and the PSCA Letter.
\68\ See the ABA Letter and the S&C Letter.
These commenters encouraged us to permit directors and executive
officers to specifically identify, or ``trace,'' the source of equity
securities sold or otherwise transferred during a blackout period to
establish that the transaction did not involve securities ``acquired in
connection with service or employment as a director or executive
officer.'' They pointed out that because ``tracing'' is permitted under
both the Internal Revenue Code \69\ and some federal securities
laws,\70\ it would not impose an undue burden on directors and executive officers.
\69\ See Treas. Reg. 1.10121(c).
\70\ See, for example, Securities Act Rule 144(d) [17 CFR 230.144(d)].
We are persuaded by these comments that an irrebuttable presumption
is unnecessary. Accordingly, new Rule 101(b) of Regulation BTR \71\
provides that any equity securities sold or otherwise transferred
during a blackout period by a director or executive officer of an
issuer will be considered to have been ``acquired in connection with
service or employment as a director or executive officer'' to the
extent that the director or executive officer owned such securities at
the time of the transaction, unless he or she establishes that the
equity securities were not ``acquired in connection with service or
employment as a director or executive officer.'' To establish this
defense, a director or executive officer must specifically identify the
origin of the equity securities in question (which must not be
``acquired in connection with service or employment as a director or
executive officer'' as defined in new Rule 100(a)), and demonstrate
that this identification of the equity securities is consistent for all
purposes related to the transaction (such as tax reporting and any applicable disclosure and reporting requirements).\72\
\71\ 17 CFR 245.101(b).
\72\ While not required, a director or executive officer may
want to add a note describing the date and nature of the transaction
in which the securities were acquired in the ``Explanation of
Responses'' section of the Form 4 [17 CFR 249.104] reporting the transaction.
For example, if an executive officer owned 1,000 shares of an issuer's common stock, 250 shares of which were acquired as the result of the exercise of an employee stock option, a sale of 250 shares of common stock during a blackout period will be treated as a sale of the option shares and, therefore, subject to the Section 306(a) trading prohibition, unless the executive officer establishes a different source of the shares sold and this identification is consistent for all purposes related to the transaction (such as tax reporting and any applicable disclosure and reporting requirements).
(c) Transitional Situations.
Except as provided in new Rule 100(a), equity securities acquired by an individual before he or she becomes a director or executive officer are not ``acquired in connection with service or employment as a director or executive officer'' for purposes of Section 306(a) of the Act. Thus, equity securities acquired under a compensatory plan, contract, authorization or arrangement while an individual is an employee, but not a director or executive officer, will not be subject to the Section 306(a) trading prohibition. However, equity securities acquired by an employee before becoming a director or executive officer will be considered ``acquired in connection with service or employment as a director or executive officer'' if the equity securities are part of an inducement award.\73\
\73\ See the discussion in Section II.B.4.a above.
In contrast, equity securities acquired by an individual in connection with service or employment as a director or executive officer before an entity becomes an ``issuer'' (as defined in Section 2(a)(7) of the Act and new Rule 100(k)) are considered ``acquired in connection with service or employment as a director or executive officer'' for purposes of Section 306(a) and Regulation BTR and are subject to the statutory trading prohibition. Similarly, equity securities acquired by a director or executive officer in connection with his or her service or employment as a director or executive officer of an ``issuer'' (as defined in Section 2(a)(7) of the Act and new Rule 100(k)) before the effective date of Section 306(a) are subject to that section and Regulation BTR.
(d) Exempt Transactions.
Because some transactions by a director or executive officer
involving issuer equity securities do not present the concerns that
Section 306(a) of the Act is intended to remedy, we are adopting new
Rule 101(c) of Regulation BTR,\74\ which exempts from the statutory trading prohibition:
\74\ 17 CFR 245.101(c).
[[Page 4343]]
[sbull] Acquisitions of equity securities under dividend or interest reinvestment plans;
[sbull] Purchases or sales of equity securities pursuant to a
trading arrangement that satisfies the affirmative defense conditions of Exchange Act Rule 10b51(c); \75\
\75\ 17 CFR 240.10b51(c).
[sbull] Purchases or sales of equity securities, other than
discretionary transactions,\76\ pursuant to certain ``taxconditioned'' plans; \77\ and
\76\ As defined in Exchange Act Rule 16b3(b)(1) [17 CFR 240.16b3(b)(1)].
\77\ These plans include Qualified Plans (as defined in Exchange
Act Rule 16b3(b)(4) [17 CFR 240.16b3(b)(4)]), Excess Benefit Plans
(as defined in Exchange Act Rule 16b3(b)(2) [17 CFR 240.16b
3(b)(2)]) and Stock Purchase Plans (as defined in Exchange Act Rule
16b3(b)(5) [17 CFR 240.16b3(b)(5)]) and, with respect to foreign
private issuers, specified similar plans. See n. 83 below and the
accompanying text. Some commenters requested exemptions for specific
transactions under these ``taxconditioned'' plans. As discussed in
this section, we do not believe that these exemptions are necessary. See n. 85 below and the accompanying text.
[sbull] Increases or decreases in the number of equity securities
held as a result of a stock split or stock dividend applying equally to all equity securities of that class.
While commenters generally supported the proposed exemptions, some
requested clarification as to the intent of the statement in the
Proposing Release that ``[a]wareness of an impending blackout period
would be considered awareness of material, nonpublic information that
could render the [proposed exemption for a trading arrangement that
satisfies the affirmative defense conditions of Exchange Act Rule 10b5
1(c)] unavailable.'' In particular, commenters expressed concern that
the statement could have implications beyond Section 306(a). One
commenter noted that a broad reading of this statement could preclude a
director or executive officer from establishing an Exchange Act Rule
10b51(c) trading arrangement indefinitely if he or she was aware that
a pension plan blackout period was planned, even if the dates of the
blackout period had not been established.\78\ The same commenter
asserted that the statement would not permit a director or executive
officer to evaluate the materiality of his or her knowledge about an
impending blackout period on the basis of applicable facts and
circumstances. Another commenter noted that the statement created
uncertainty as to whether ``awareness'' of an impending blackout period
was material nonpublic information that would preclude trading in an
issuer's securities by any person with such awareness until the
blackout period was publicly disclosed.\79\ A third commenter suggested
that we clarify the statement to provide that ``awareness'' of an
impending blackout period would require awareness of the actual or
approximate beginning and ending dates of a specific blackout period
(whether or not notice of the blackout period as required by Section 306(a)(6) of the Act had been received).\80\
\78\ See the PSCA Letter.
\79\ See the Intel Letter.
\80\ See the ABA Letter.
We did not intend for this statement to be read so broadly. The
statement simply was intended to clarify that a director or executive
officer who is aware of a scheduled blackout period could not
subsequently enter into or modify an Exchange Act Rule 10b51(c)
trading arrangement to circumvent the Section 306(a) trading
prohibition. The ``awareness'' of an impending blackout period
described in the statement would require awareness of the actual or
approximate beginning or ending dates of a specific blackout period
(whether or not notice of the blackout period as required by Section
306(a)(6) had been received), and not merely awareness of the potential
for a blackout period. Accordingly, we have modified new Rule 101(c)(2)
of Regulation BTR \81\ to provide that transactions pursuant to a
trading arrangement that satisfies the affirmative defense conditions
of Exchange Act Rule 10b51(c) will be exempt from the Section 306(a)
trading prohibition, as long as the arrangement is not entered into or
modified during the blackout period in question or at a time when the
director or executive officer is aware of the actual or approximate
beginning or ending dates of the blackout period, whether or not the
director or executive officer has received notice of the blackout
period as required by Section 306(a)(6). This information may or may
not be material nonpublic information for other purposes, depending on
the applicable facts, including whether the information has not been
disclosed or otherwise made public and whether the information is
material under customary legal analysis.\82\ We do not intend that our
treatment of this information under Regulation BTR affect that customary legal analysis of materiality.
\81\ 17 CFR 245.101(c)(2).
\82\ See TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976); Basic, Inc. v. Levinson, 485 U.S. 224 (1988).
The exemption for purchases or sales of equity securities pursuant
to certain ``taxconditioned'' plans in new Rule 101(c)(3) of
Regulation BTR \83\ has been expanded to include purchases or sales
pursuant to an employee benefit plan of a foreign private issuer that
either has been approved by the taxing authority of a foreign
jurisdiction, or is eligible for preferential treatment under the tax
laws of a foreign jurisdiction because the plan provides for broad
based employee participation. This change is intended to equalize the
treatment of directors and executive officers of domestic and foreign
private issuers where a foreign issuer has an employee benefit plan
maintained outside the United States that is substantially similar to a ``taxconditioned'' employee benefit plan.\84\
\83\ 17 CFR 245.101(c)(3).
\84\ See n. 77 above.
As adopted, the exemption in new Rule 101(c)(3) does not extend to ``discretionary transactions,'' such as an intraplan transfer involving an issuer equity securities fund or a cash distribution funded by a volitional disposition of an issuer equity security, that occur during a blackout period. However, it would cover acquisitions or dispositions of equity securities made in connection with death, disability, retirement or termination of employment or transactions involving a diversification or distribution required by the Internal Revenue Code to be made available to plan participants because these transactions are not ``discretionary transactions.''\85\
\85\ See n. 76 above.
We have expanded new Rule 101(c) to include the following
additional exemptions from the statutory trading prohibition that were suggested by commenters:
[sbull] Compensatory grants and awards of equity securities
(including options and stock appreciation rights) pursuant to a plan
that, by its terms, permits directors or executive officers to receive
grants or awards, provides for grants or awards to occur automatically
and specifies the terms and conditions of the grants or awards;
[sbull] Exercises, conversions or terminations of derivative
securities that were not written or acquired by a director or executive
officer during the blackout period in question or while aware of the
actual or approximate beginning or ending dates of the blackout period,
and where (i) the derivative security, by its terms, may be exercised,
converted or terminated only on a fixed date, with no discretionary
provision for earlier exercise, conversion or termination,\86\ or (ii)
the derivative security is exercised, converted or terminated by a counterparty and the director or
[[Page 4344]]
executive officer does not exercise any influence on the counterparty
with respect to whether or when to exercise, convert or terminate the derivative security;
\86\ For example, Europeanstyle options.
[sbull] Acquisitions or dispositions of equity securities involving
a bona fide gift or a transfer by will or the laws of descent and distribution;
[sbull] Acquisitions or dispositions of equity securities pursuant to a domestic relations order;
[sbull] Sales or other dispositions of equity securities compelled
by the laws or other requirements of an applicable jurisdiction; and
[sbull] Acquisitions or dispositions of equity securities in
connection with a merger, acquisition, divestiture or similar transaction occurring by operation of law.\87\
\87\ See new Rules 101(c)(4)(9) of Regulation BTR [17 CFR 245.101(c)(4)(9)].
Section 306(a)(3) of the Act \88\ permits us to provide appropriate exemptions from the statutory trading prohibition, citing examples of transactions eligible for exemption such as purchases pursuant to an automatic dividend reinvestment program or purchases or sales made pursuant to an advance election. These examples reflect transactions that occur automatically, are made pursuant to an advance election or are otherwise outside the control of the director or executive officer. The exemptions that we originally proposed and are adopting embody one or both of these characteristics. The additional exemptions that we are adopting also reflect these characteristics.
\88\ 15 U.S.C. 7244(a)(3).
Compensatory grants and awards of equity securities during a blackout period pursuant to a plan that, by its terms, provides for grants and awards to be made to directors and executive officers automatically and specifies the terms and conditions of the grants or awards are outside the control of the directors and executive officers and do not present the concerns that Section 306(a) is intended to remedy. Similarly, an exercise, conversion or termination of a derivative security written or acquired by a director or executive officer before the blackout period in question and while not aware of the actual or approximate beginning or ending dates of the blackout period is a transaction that is outside the control of the director or executive officer where the derivative security either, by its terms, may be exercised, converted or terminated only on a fixed date, or is exercised, converted or terminated by a counterparty where the director or executive officer does not exercise any influence on the counterparty with respect to whether or when to exercise, convert or terminate the derivative security.
The exemption for bona fide gifts and acquisitions or dispositions
of equity securities by will or the laws of descent and distribution is
modeled on a similar exemption under Section 16 of the Exchange
Act.\89\ The exemption for acquisitions or dispositions pursuant to a
domestic relations order is modeled on the exemption in Exchange Act Rule 16a12.\90\
\89\ See Exchange Act Rule 16b5 [17 CFR 240.16b5].
\90\ 17 CFR 240.16a12.
The exemption for sales or other dispositions of equity securities compelled by the laws or other requirements of an applicable jurisdiction addresses a category of involuntary transactions that do not provide the opportunity for improper selfdealing or present the unfairness Section 306(a) was designed to address. Finally, the exemption for acquisitions or dispositions of equity securities in connection with a merger, acquisition, divestiture or similar transaction occurring by operation of law is intended to cover an exchange of equity securities affecting substantially all of an entity's equity security holders that occurs upon a statutory merger, acquisition, divestiture or similar transaction that closes during a blackout period.
5. Blackout Period
Section 306(a)(4)(A) of the Act defines the term ``blackout
period'' to mean any period of more than three consecutive business
days during which the ability of not fewer than 50% of the participants
or beneficiaries under all individual account plans maintained by an
issuer to purchase, sell or otherwise acquire or transfer an interest
in any equity security of the issuer held in such an individual account
plan is temporarily suspended by the issuer or by a fiduciary \91\ of
the plan. In the Proposing Release, we solicited comment on whether a
trading suspension of three business days or less should be considered a ``blackout period'' for purposes of the statute.
\91\ For purposes of the Act and Regulation BTR, a plan
administrator will be considered a ``fiduciary'' of the plan even if
it has invoked the rules under Section 404(c) of the Employment
Retirement Income Security Act of 1974 (``ERISA'') [29 U.S.C.
1104(c)] to avoid liability for losses in participant or beneficiary
accounts where participants and beneficiaries are provided an
opportunity to exercise control over the assets in their individual
accounts and are given an opportunity to choose from a broad range of investments.
Several commenters opposed expanding the definition of the term
``blackout period'' to encompass periods of three business days or
less. One commenter noted that the specific statutory language
providing this standard had resulted from extensive discussions among
policymakers and representatives of the voluntary employerprovided
retirement system, and that blackout periods of three business days or
less do not significantly impact the rights of plan participants and
beneficiaries.\92\ Two commenters requested that Regulation BTR be
consistent with the rules under Section 306(b) of the Act adopted by
the Department of Labor (the ``DOL Rules''), so that issuers are not
subject to different blackout period rules.\93\ Two commenters noted
that because there may be unforeseen technical problems or other
emergencies that could result in unscheduled temporary trading
suspensions lasting one or two business days which would not be subject
to the advance notice requirement of the DOL Rules, it would be
impracticable to comply with Section 306(a) of the Act in these circumstances.\94\
\92\ See the PSCA Letter.
\93\ See the ACB Letter and the PWC Letter.
\94\ See the ACB Letter and the Letter dated December 16, 2002 of The ERISA Industry Committee (the ``ERIC Letter'').
Although Regulation BTR retains the ``more than three consecutive
business days'' language in its definition of the term ``blackout
period,'' we remain concerned that the problems Section 306(a) is
intended to address may not be limited to blackout periods that last
longer than three consecutive business days. A sharp decline in the
value of an issuer's equity securities can take place in a single day,
and, if that decline coincides with a temporary trading suspension in
the issuer's pension plans, it is still unfair that directors and
executive officers may be able to dispose of the equity securities that
they acquired in connection with service or employment as a director or
executive officer while rankandfile employees are precluded from
selling issuer equity securities in their individual plan accounts.
While most of these temporary trading suspensions are likely the result
of unforeseeable technical problems or other emergencies, we are
mindful that, given the requirements of the statute, issuers and plan
administrators may be motivated to structure blackout periods to last
three business days or less. We would view any such efforts to [[Page 4345]]
circumvent Section 306(a) as potential violations of Regulation BTR. We
will continue to consider these issues, to attempt to ascertain whether
blackout periods of three business days or less are or may become a
concern and to talk to the Department of Labor about possible solutions.
(a) Individual Account Plan.
New Rule 100(j) of Regulation BTR \95\ sets forth the definition of
the term ``individual account plan'' for purposes of Section 306(a) of
the Act. As specified in Section 306(a)(5) of the Act,\96\ this
definition is based on Section 3(34) of ERISA.\97\ This definition
encompasses a variety of pension plans, including Section 401(k) plans,
profitsharing and savings plans, stock bonus plans and money purchase pension plans.
\95\ 17 CFR 245.100(j).
\96\ 15 U.S.C 7244(a)(5). Consequently, a temporary trading
suspension in issuer equity securities in an individual account plan
that is a pension plan as defined in ERISA may trigger the Section
306(a) trading prohibition, whether or not the plan is actually subject to ERISA.
\97\ 29 U.S.C. 1002(34). Section 3(2)(A) of ERISA [29 U.S.C.
1002(2)(A)] defines the term ``pension plan'' to mean ``any plan,
fund, or program . . . established or maintained by an employer or
an employee organization, or by both, to the extent that by its
express terms or as a result of surrounding circumstances such plan,
fund, or program (i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods
extending to the termination of covered employment or beyond,
regardless of the method of calculating the contributions made to
the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan.''
As specified in the statute, the definition excludes a one
participant retirement plan.\98\ In addition, we have modified the
definition to exclude pension plans, including deferred compensation
plans, in which participation is limited to directors of the issuer. In
the case of a temporary trading suspension in issuer equity securities
in such a plan, the unfairness of directors and executive officers
being able to trade their equity securities while an issuer's employees may not does not exist.\99\
\98\ See Section 306(a)(5) of the Act.
\99\ This change was made in response to a comment in the Letter
dated December 13, 2002 of the Investment Company Institute (the
``ICI Letter''). We have made this exclusion applicable to all
issuers, not just investment companies, because we believe that it
is unnecessary to include directoronly plans within the scope of
the rule, whether or not the issuer is an investment company. (b) Blackout Period.
New Rule 100(b) of Regulation BTR \100\ contains the definition of
the term ``blackout period'' as clarified to achieve the purposes of
Section 306(a) of the Act. The new rule makes clear that, in
determining whether a temporary trading suspension in issuer equity
securities constitutes a ``blackout period,'' the individual account
plans to be considered are individual account plans maintained by an
issuer that permit participants or beneficiaries located in the United
States to acquire or hold equity securities of the issuer. This includes individual account plans that:
\100\ 17 CFR 245.100(b).
[sbull] Permit participants or beneficiaries to invest their plan contributions in issuer equity securities;
[sbull] Include an ``open brokerage window'' that permits
participants or beneficiaries to invest in the equity securities of any publiclytraded company, including the issuer;
[sbull] Match employee contributions with issuer equity securities; or
[sbull] Reallocate forfeitures that include issuer equity securities to the remaining plan participants.
This would include such an individual account plan, whether or not
the plan actually contains equity securities of the issuer at the time
of the temporary trading suspension and related determination.\101\ In
addition, new Rule 100(b)(3)(i) of Regulation BTR \102\ provides that,
for purposes of determining the individual account plans maintained by
the issuer, the rules under Section 414(b), (c), (m) and (o) of the
Internal Revenue Code \103\ with respect to entities treated as a single employer are to be applied.
\101\ Thus, a temporary trading suspension applicable to such an
individual account plan in which no issuer equity securities are
actually held by plan participants or beneficiaries will trigger a
determination of whether a ``blackout period'' will occur in that
plan. Similarly, an individual account plan maintained by an issuer
that permits participants or beneficiaries to acquire or hold equity
securities of the issuer, whether or not the plan actually contains
equity securities of the issuer at the time of the determination,
will be taken into account in determining whether a temporary
trading suspension in a different plan constitutes a ``blackout period.''
\102\ 17 CFR 245.100(b)(3)(i).
\103\ 26 U.S.C. 414(b), (c), (m) and (o). Section 414(b)
provides that, for purposes of various provisions of the Internal
Revenue Code, all employees of all corporations that are members of
a ``controlled group'' of corporations are to be treated as employed
by a single employer. Section 414(c) provides ``singleemployer''
treatment for certain groups of partnerships and proprietorships
under common control, while Section 414(m) provides ``single
employer'' treatment for organizations that provide services for one another.
Two commenters questioned whether all individual account plans
maintained by an issuer that permit participants or beneficiaries
located in the United States to acquire or hold equity securities of
the issuer should be included in the percentage test for determining
whether a temporary trading suspension constitutes a ``blackout
period.'' \104\ These commenters noted that, as proposed, the 50% test
would take into account any individual account plan (wherever located)
maintained by an issuer that permits any participants or beneficiaries
located in the United States to acquire or hold issuer equity
securities. Thus, even though an individual account plan may be
maintained outside the United States, if even a single participant or
beneficiary was located in the United States, all of the participants
or beneficiaries in the plan would have to be taken into account under
the 50% test. One commenter asserted that although foreign issuers may
have a small number of U.S. employees participating in their pension
plans maintained outside the United States, because these issuers may
not keep records of such participation (because the plans are not
subject to ERISA), to avoid confusion and inaccurate calculations the 50% test should not apply to these plans.\105\
\104\ See the ERIC Letter and the S&C Letter.
\105\ See the S&C Letter.
We believe that a clarification is warranted. Accordingly, new Rule
100(b)(3)(ii) of Regulation BTR \106\ excludes an individual account
plan maintained outside of the United States primarily for the benefit
of nonresident aliens from the determination of whether a temporary
trading suspension constitutes a ``blackout period.'' \107\ This should
focus the determination of whether a blackout period will occur on
those individual account plans that are primarily for the benefit of
participants and beneficiaries located in the United States. Because
ERISA applies to any ``individual account plan'' that is primarily for
the benefit of U.S. participants or beneficiaries and Section 404(b) of
ERISA \108\ provides that the indicia of ownership of the assets of
plans subject to ERISA may not be maintained outside the jurisdiction
of the United States, we do not believe that this modification is inconsistent with the objectives of Section 306(a).
\106\ 17 CFR 245.100(b)(3)(ii).
\107\ This type of employee benefit plan is excluded from the
coverage provisions of ERISA. See Section 4(b)(4) of ERISA [29 U.S.C. 1003(b)(4)].
\108\ 29 U.S.C. 1104(b).
(c) Determining Participants and Beneficiaries.
Once an issuer has identified the relevant individual account
plans, it must determine whether the temporary suspension of trading in
its equity securities affects 50% or more of the participants or
beneficiaries under these plans. This is accomplished by comparing the
number of participants or beneficiaries located in the United [[Page 4346]]
States who are subject to the temporary trading suspension in issuer
equity securities to the number of participants or beneficiaries
located in the United States under all individual account plans
maintained by the issuer.\109\ In the case of a domestic issuer, where
this percentage is 50% or more the temporary trading suspension
constitutes a ``blackout period,'' so that the Section 306(a) trading
prohibition applies to the issuer's directors and executive officers. \109\ See new Rule 100(b)(1) of Regulation BTR.
We recognize that it may be difficult to determine the number of participants and beneficiaries in an individual account plan because participants and beneficiaries continuously enter and leave such plans. For example, newly eligible employees regularly enter plans, terminating and retiring employees regularly leave plans, beneficiaries of deceased employees frequently acquire benefit rights under plans and employees commonly enter and leave plans as a result of acquisitions and divestitures.\110\ On any day, it may be difficult for an issuer to know precisely how many participants and beneficiaries are then covered by all of its individual account plans. As a result, issuers will need to apply the 50% test on the basis of estimates.
\110\ See the ERIC Letter.
For pur
FOR FURTHER INFORMATION CONTACT
Mark A. Borges, Special Counsel, Office of Rulemaking, at (202) 9422910, or Anne Krauskopf, Special Counsel, Office of Chief Counsel, at (202) 9422900, at the Division of Corporation Finance, United States Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 205490312.