SEC Focuses on Potential Misuse of Material Non-Public Information in Stock Trades: Proposed Amendments Regarding Rule 10b5-1 Trading Plans and Company "Buybacks"

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To address what the SEC characterizes as "critical gaps" in its insider trading regime, on December 15, 2021, the Securities and Exchange Commission (the "SEC") voted unanimously to propose amendments to Rule 10b5-1 under the Securities Exchange Act of 1934 (the "Exchange Act").1

Rule 10b5-1 plans enable company insiders to have an affirmative defense to insider trading liability if they meet certain conditions set forth in SEC rules. An insider must enter into a 10b5-1 plan when the insider is not aware of any material nonpublic information ("MNPI"), and the 10b5-1 plan must specifically provide for the amounts and prices when trades will occur, such that the insider will not have any interference or involvement in the trades under the 10b5-1 plan at the time of their execution.

The SEC's proposed amendments to Rule 10b5-1 would:

i.  Update the requirements for use of the affirmative defense, by imposing cooling-off periods before trading could commence under a plan, requiring written certifications from directors and officers, prohibiting overlapping trading plans, and limiting single-trade plans to one trading plan per 12-month period,

ii. Elicit comprehensive disclosure about the adoption of 10b5-1 plans by directors and officers, as well as issuers' insider trading policies,

iii. Create new disclosure requirements for executive and director compensation regarding the timing of certain equity compensation awards, and

iv. Amend Forms 4 and 5 to require corporate insiders subject to the reporting requirements of Section 16 of the Exchange Act to identify transactions made pursuant to a Rule 10b5-1(c)(1) trading arrangement, and to disclose all gifts of securities on Form 4.

In addition, the SEC voted 3 – 2 to propose amendments to expand the disclosure requirements around issuer stock repurchases ("buybacks").2  While several of these rules do not apply to foreign private issuers ("FPIs"), the SEC did not propose any exemptions for smaller reporting companies or emerging growth companies. The proposed rules for both proposals are subject to an abbreviated comment period of 45 days after publication in the Federal Register.

At the crux of these proposed amendments were comments cited by the SEC claiming that many transactions made under 10b5-1 plans were likely made on the basis of MNPI. For this reason, if adopted, the amendments could signal a wave of enhanced scrutiny by the SEC of alleged insider trading violations while at the same time potentially closing certain loopholes that allow for the misuse of 10b5-1 plans. For more information, see:

 

Part I: Summary of Rule Proposals

Background of Rule 10b5-1

In 2000, the SEC adopted Rule 10b5-1 to establish an affirmative defense to insider trading liability for a person who traded while aware of MNPI if the trade was made pursuant to a preapproved trading plan established when the person was not aware of MNPI. Nevertheless, the establishment, modification and termination of a 10b5-1 plan is largely unregulated. As a result, certain market practices have developed among issuers and investment banks that broker 10b5-1 plans regarding cooling-off periods, the establishment of multiple plans, and the modification and termination of plans. Against this backdrop, concerns have been raised to the SEC that 10b5-1 plans are being used by insiders to "opportunistically" trade on the basis of MNPI.

New Conditions to the Availability of the Affirmative Defense under Rule 10b5-1(C)(1)

1. Mandatory Cooling-Off Periods

Proposed new requirement. The proposed rule establishes a mandatory minimum cooling-off period between establishing or modifying a 10b5-1 plan and the first trade under that plan: (i) for issuers, 30 days and (ii) for directors and officers (as defined in Rule 16a-1(f) under the Exchange Act), 120 days. A modification would also include canceling one or more trades. The minimum 120-day cooling-off period for directors and officers is intended to result in the issuer releasing at least one set of quarterly financial results between signing (or modifying) a 10b5-1 plan and the first trade thereunder.

Current requirement. None. However, in practice, many issuers already impose a cooling-off period, typically lasting 30 days or more from entry into the plan or, as is now becoming more of a market trend, until the opening of the next trading window under the issuer's insider trading policy.

2. Restricting Multiple Overlapping Rule 10b5-1 Trading Arrangements

Proposed new requirement. A person establishing a contract, instruction or plan may have not entered into, and may not subsequently enter into, a contract, instruction or plan for open market purchases and sales of the same class of securities. The SEC seeks to address a situation where the individual enters into multiple 10b5-1 plans with different threshold prices, for example, to sell shares at $15, $20 and $25. In that instance, shortly before good news is announced, the individual currently could cancel the $15 and $20 plans, thereby leaving only the $25 plan in effect. As a result, the individual would effectively ensure that his/her trades would generate more proceeds despite being aware of MNPI when the two plans were canceled.

Current requirement. None. The only current legal prohibition is on entering into or altering a corresponding or hedging transaction or provision. However, in practice, many issuers prohibit insiders from entering into multiple, overlapping 10b5-1 plans.

3. Restricting Single-Trade Arrangements

Proposed new requirement. A plan that relates to a single trade may be entered into only once every 12 months. The SEC has determined that plans involving single trades are more consistently associated with avoiding losses in advance of price declines. However, the SEC also recognizes that single trade plans may be used legitimately to address specific liquidity needs.

Current requirement.  None.

4. Requiring that Trading Arrangements be Operated in Good Faith

Proposed new requirement. A plan must be operated in good faith (as well as entered into in good faith). The SEC is concerned that a 10b5-1 plan may be canceled or modified in an attempt to evade the prohibitions of the rule without affecting the availability of the affirmative defense, or that a corporate insider may improperly influence the timing of the announcement of material information in a way that benefits a planned trade under their arrangement.

Current requirement. A plan must only be entered into in good faith. However, canceling a plan can be understood to call into question the good faith nature of that plan or a subsequent plan.

5. Director and Officer Certifications

Proposed new requirement. A director or officer must promptly furnish to the issuer a written certification, at the time of the adoption or modification of a 10b5-1 plan, certifying that at such time:

  • He or she is not aware of MNPI about the issuer or its securities, and 
  • He or she is adopting the contract, instruction, or plan in good f\aith and not as part of a plan or scheme to evade the prohibitions of Section 10(b) of the Exchange Act and Rule 10b-5 under the Exchange Act.

Current requirement.  No legal requirement. However, in practice, banks typically require insiders using their 10b5-1 plans to represent that they have no MNPI when entering into such plans, and issuers often require insiders to request internal pre-approval of 10b5-1 plans and, in connection with this request, make a representation to the issuer that they have no MNPI at that time.

New Disclosure Requirements Concerning Rule 10b5-1 Trading Plans

The following proposed disclosures in Forms 10-K and 10-Q would be subject to the certifications required by Section 302 of the Sarbanes-Oxley Act of 2002.3

1. Quarterly Reporting of Rule 10b5-1(c) and Non-Rule 10b5-1(c) Trading Arrangements

Proposed new requirement. Proposed Item 408(a) of Regulation S-K would require issuers4 to disclose in their Form 10-Ks and Form 10-Qs whether, during the issuer's last fiscal quarter, the issuer, or any of its directors or officers, has adopted, modified or terminated any contract, instruction or written plan to purchase or sell securities of the issuer, whether or not intended to satisfy the conditions of Rule 10b5-1(c), and provide a description of the "material terms" of the contract, instruction or written plan.

  • For issuers, this description must include: (i) the date of adoption or termination; (ii) the duration of the contract, instruction or written plan; and (iii) the aggregate amount of securities to be sold or purchased pursuant to the contract, instruction or written plan. 
  •  For directors or officers, the description must include: (i) the name and title of the director or officer; (ii) the date on which the director or officer adopted or terminated the contract instruction or written plan; (iii) the duration of the contract instruction or written plan; and (iv) the aggregate number of securities to be sold or purchased pursuant to the contract, instruction or written plan. 

The SEC does not, however, specifically include price thresholds as one of the delineated material terms that must be included in such disclosure. The same proposed disclosure rules would also apply to the adoption or termination of "other pre-planned trading contracts, instructions, or plans…through which the issuer, officer or directors seek to transact in issuer securities."

Current requirement. None.

2. Disclosure of Insider Trading Policies and Procedures

Proposed new requirement. Proposed Item 408(b) of Regulation S-K would require issuers to disclose, in their Form 10-Ks5 and in their proxy and information statements, "whether the [issuer] has adopted insider trading policies and procedures" and to disclose any such policies and procedures (or to explain why they have not adopted such a policy).

The SEC noted that investors may find useful information in insider trading policies to include the following: the issuer's process for analyzing whether directors, officers, employees or the issuer itself, when conducting an open-market share repurchase, have MNPI; the issuer's process for documenting such analyses and approving requests to purchase or sell its securities; or how the issuer enforces compliance with any such policies and procedures it may have. The SEC is seemingly not requiring the posting of the policy itself, in contrast to how it treats an issuer's code of ethics, which must be posted on the issuer's website (or filed as an exhibit to the issuer's annual report). Such a "disclose or file" approach would be a lot simpler.

Current requirement. None. Most issuers already have insider trading policies, but do not post the policies on their website or describe the policies in their public disclosures, other than with respect to, in the case of domestic issuers, mandatory disclosure on policies around hedging issuer stock under Item 407(i) of Regulation S-K and customary (but not mandatory) disclosure on policies around pledging issuer stock.6

Disclosure Regarding the Timing of Option Grants and Similar Equity Instruments Shortly before or after the Release of MNPI

Option grants that are "spring-loaded" (timed to occur immediately before the release of positive MNPI) or "bullet-dodging" (delayed until after the release of MNPI that is likely to decrease the issuer's stock price) are not currently required to be visibly identified in an issuer's disclosures. Consequently, the SEC is concerned that investors may not have a clear picture of the effect of an option award made close to the release of MNPI on the executives' or directors' compensation and on the issuer's financial statements.

Proposed new requirement. New paragraph (x) of Item 402 of Regulation S-K would require:

(1)  Tabular disclosure of:

  • Each option award (including the number of securities underlying the award, the date of grant, the grant date fair value and the option's exercise price) granted within 14 calendar days before or after the filing of a periodic report, an issuer share repurchase, or the filing or furnishing of a current report on Form 8-K that contains MNPI,7
  • The market price of the underlying securities the trading day before disclosure of the MNPI, and 
  • The market price of the underlying securities the trading day after disclosure of the MNPI. 
     

(2) Narrative disclosure about an issuer's option grant policies and practices regarding the timing of option

  • How the board determines when to grant options, and 
  • Whether, and if so, how, the board or compensation committee takes MNPI into account when determining the timing and terms of an award.

The proposed disclosure would be required in annual reports on Form 10- K and annual meeting proxy statements, and would be required to be tagged in Inline XBRL.8

Current requirement. The SEC recently issued accounting guidance on estimating the fair value of spring-loaded options pursuant to generally accepted accounting principles under Accounting Standards Codification Topic 718 (Compensation—Stock Compensation), in which the SEC cautioned that the estimation must reflect the additional value conveyed to the recipients and share price volatility from the anticipated announcement of MNPI shortly after grant.9 The SEC stated it was issuing such guidance in part to "remind[] [issuers] of their corporate governance obligations and disclosure obligations under U.S. GAAP with respect to share-based payment transactions, as well as the need to maintain effective internal control over financial reporting." Additionally, Item 402 of Regulation S-K requires issuers, other than smaller reporting companies and emerging growth companies, to provide information in their compensation disclosures about the timing of option grants in close proximity to the issuer's release of nonpublic information, including whether the issuer is aware of MNPI likely to result in an increase of its stock price and grants stock options immediately before the release of this information.

Changes to Forms 4 and 5

1. Identification of Rule 10b5-1(c) and non-Rule 10b5-1(c)(1) Transactions on Forms 4 and 5

Proposed new requirement: Section 16 of the Exchange Act was designed to provide the public with information on securities transactions and holdings of officers, directors and 10%+ shareholders ("Section 16 insiders"), and to deter those individuals from seeking to profit from short-term trading in the equity securities of their companies while in possession of MNPI. Section 16 insiders must disclose changes in their beneficial ownership in the equity securities of domestic issuers on Form 4 or 5. The SEC is proposing to:

  • Add to Forms 4 and 5: (i) a mandatory checkbox, where a Section 16 insider would indicate whether a sale or purchase reported on that form was made pursuant to a 10b5-1 plan, and (ii) an optional checkbox, where a Section 16 insider would indicate whether a reported transaction was made pursuant to a pre-planned contract/instruction/written plan outside Rule 10b5-1(c), and 
  • Require Section 16 insiders to provide the date of adoption of the 10b5-1 plan, and allow them to provide additional relevant information about the reported transaction.

Current requirement. None. Section 16 insiders often choose to disclose by footnote on Form 4 or 5 that their transactions were made pursuant to 10b5-1 plans to negate the appearance of trading with MNPI, although this is not legally required.

2. Reporting of Gifts on Form 4

Current requirement. Section 16 insiders are currently required to report any "bona fide" gift of issuer equity securities on Form 5, which must be filed within 45 days after the issuer's fiscal year end.

Proposed new requirement. Section 16 insiders would instead be required to report gifts on Form 4, before the end of the second business day following the date of execution of the transaction. The SEC believes this earlier reporting deadline would "help investors, other market participants, and the [SEC] better evaluate the actions of these insiders and the context in which equity securities gifts are being made."

Proposed New Share Repurchase Disclosure Rules on Form SR

Current requirement. Issuers typically disclose via a press release or Form 8-K repurchase plans or programs at the time that they are authorized by the board. In addition, under Item 703 of Regulation S-K, they are required to disclose, on a quarterly basis in Forms 10-K and 10-Q, purchases made by or on behalf of the issuer or any affiliated purchaser of the issuer's equity securities registered under Section 12 of the Exchange Act, including the total number and class of securities purchased, the average price paid and the maximum number of shares that may be purchased under the plan. 
However, issuers are not required to, and typically do not, disclose the specific dates on which they will execute trades pursuant to an announced repurchase plan or program; therefore, investors and other market participants normally do not become aware of an issuer's actual share repurchase-related trading activity until it is reported in an issuer's applicable Form 10-K or 10-Q, long after the trades have been executed.

Proposed new requirement. In order to lessen this information asymmetry, the SEC proposed the below rules,10 which would apply to issuers that repurchase securities registered under Section 12 of the Exchange Act, including FPIs and certain registered closed-end funds.

1. New Form SR: An issuer would be required to provide a Form SR before the end of the first business day following the day it executes a security repurchase, which identifies the total number and class of securities purchased and the average price paid, as well as the aggregate amount purchased on the open market using a plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) and/or the conditions of the non-exclusive safe harbor of Rule 10b-18 under the Exchange Act.

2. Amending Item 703 of Regulation S-K to require additional detail regarding the structure of an issuer's repurchase program and its security repurchases: Under amended Item 703 of Regulation S-K,11 an issuer would be required to disclose: (i) the objective or rationale for the share repurchases and the process or criteria used to determine the repurchase amounts; (ii) any policies and procedures relating to purchases and sales of the issuer's securities by its officers and directors during a repurchase program, including any restriction on such transactions; and (iii) whether the issuer is making its repurchases using a plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) and/or the conditions of the Rule 10b-18 non-exclusive safe harbor.

 

Part II: Seven Practical Considerations Regarding the SEC's Rule Proposal

1. Re-consider Insider Trading Policies: In light of the increased focus on insider trading policies, issuers should take this opportunity to reassess their policies in light of the proposed amendments and also to update such policies, which may not have been recently revised, to align with current market practice and to ensure they include, if appropriate, standard provisions for such policies.

2. Limit certain gifts to open windows: In addition, given the proposed changes to the disclosure requirements surrounding gifts of securities and the SEC's clear focus on potential impropriety,12 issuers should consider amending their insider trading policies to permit gifts of securities that result in charitable deductions to the donor only during an open trading window. Issuers may also consider prohibiting all gifts except during open trading windows.

3. Reconsider allowing senior officers to trade outside of a 10b5-1 plan: Given the enhanced disclosure, cooling-off periods and other requirements under the proposed rules, there may be a strong incentive to allow senior officers to trade freely, without requiring a 10b5-1 plan, in a short window immediately following an earnings release, when there is minimal risk that they are in possession of MNPI.

4. Consider enhanced disclosure controls and procedures: Due to the enhanced disclosure requirements of the proposed rules, if adopted, issuers will need to ensure that they have adequate disclosure controls and procedures in place to capture and report all of the required information. Issuers will also need to be careful to avoid selectively disclosing information regarding 10b5-1 plans, particularly terminations, which may be subject to additional investor scrutiny. In addition, issuers will have to consider whether to provide additional disclosure around officers' modifications and terminations of 10b5-1 plans in order to give context to such decisions.  

5. Be prepared for voluntary adoption of longer cooling-off periods: Even before any rule changes are adopted, banks may move towards brokering plans with expanded cooling-off periods, and issuers should be prepared for this possibility. As noted above, the market has already begun shifting somewhat towards cooling-off periods that require waiting until the next open trading window.

6. Adopt equity grant policies: With the proposed disclosure requirement on option grants practices comes—assuming enactment of such a disclosure requirement—a call for every issuer to re-assess or put in place an equity grant policy. We encourage issuers to begin this assessment now. Among other items, this policy should:

  • Establish the date upon which awards approved by the board or compensation committee are deemed granted. This would customarily be a date in an open window period so the price reflects publicly released quarterly results of operations. Given proposed disclosure requirements, the date should ideally be no earlier than the 15th day after earnings are released. 
  • Prohibit any equity grants within 14 calendar days before or after (i) the filing of a periodic report, (ii) an issuer share repurchase, or (iii) the filing/furnishing of a Form 8-K or Form 6-K containing MNPI. 
  • Consider adding provisions regarding how the board or compensation committee should take MNPI into account when determining the timing and terms of an award.
  • Establish internal authority to approve awards and the limits of delegation to the CEO and/or other members of management.
  • Establish tight controls over correcting/amending prior grants.

7. Re-assess award agreements that have automatic sell to cover arrangements: Unless the proposed rule is changed, issuers will need to consider whether their directors and officers can still use 10b5-1 arrangements to make open market sales to cover reimbursement of withholding tax upon the settlement of restricted stock/restricted stock units ("RSUs"). This is because of the proposal to prohibit overlapping Rule 10b5-1 trading arrangements and limit single trade arrangements. We hope that the SEC will address this issue. 

 

Part III:  Additional Commentary and Considerations Regarding the Proposed Rules

Mandatory Cooling-Off Periods

  •  The minimum 120-day cooling-off period only applies to directors and officers as defined in Rule 16a-1(f) under the Exchange Act. This leaves others who may also have regular access to quarterly or other MNPI free to enter into 10b5-1 plans with no cooling-off periods. We expect that this "gap" will be self-regulated by banks and issuers who will impose a cooling-off period.
  • The minimum 30-day cooling-off period for issuers will have a meaningful impact on current issuer repurchase programs. Many issuers commence opportunistic repurchases two days after their earnings release and then enter into a 10b5-1 plan on the final day before their trading window closes. The new requirement would result in a shorter time after earnings (often around three weeks) before an issuer would need to enter into a 10b5-1 plan if it wants to make uninterrupted repurchases.
  • Other knock-on effects of the rule remain to be seen. For example, when an issuer enters into an accelerated share repurchase program, the counterparty financial institution will often start repurchasing shares immediately in the market to cover the borrow that it will have established. Financial institutions voluntarily comply with Rule 10b-18 and it has yet to be determined if they will also voluntarily comply with the 30-day cooling-off period, which may result in higher costs to issuers.

Overlapping Plans

  • The proposed prohibition is limited to open market transactions because the SEC intends to exclude shares acquired from issuers pursuant to employee stock ownership plans or dividend reinvestment plans. However, as drafted, the proposed rule appears to cover a 10b5-1 arrangement entered into by an executive officer to permit the issuer to sell stock in the open market on behalf of the executive officer to reimburse the issuer for US withholding tax remittances by the issuer upon vesting of restricted stock and RSUs. Such arrangement would appear to be prohibited if the executive officer has already signed a regular 10b5-1 plan.  
    • Such withholding arrangement could also run afoul of the minimum 120-day cooling-off period if settlement related to any vesting event occurs within 120 days of the insider signing the grant agreement.

Director and Officer Certifications

  • The proposing releases states that the certification would not be an independent basis for liability under Exchange Act Section 10(b) and Rule 10b-5. It is to be hoped that the SEC will memorialize this in the rule itself.
  • The proposed rule includes an instruction that a director or officer seeking to rely on the affirmative defense should retain a copy of the certification for a period of ten years, but not to file such certification with the SEC.  In her statement on the proposed rules, SEC Commissioner Hester M. Peirce questions, legitimately in our view, whether the "minimal benefit of reinforcing existing obligations under Rule 10b5-1" outweighs the associated burdens.

Quarterly Reporting of 10b5-1 Trading Arrangements and Non-10b5-1 Trading Arrangements

  • 10b5-1 plans often contain "stretch" prices—at the high end for directors and officers—and at the low end for issuers. As mentioned above in our alert, the SEC does not specifically include price thresholds as one of the delineated material terms that must be included in disclosure of 10b5-1 plans. If required, however, disclosure of price thresholds may incentivize directors and officers to reflect the potential for sales at prices that are unlikely to be achieved and disincentivize issuers from including low purchase prices—prices at which repurchases in higher volumes may enhance shareholder value. It should also be noted that directors and officers must report every sale or purchase within two business days on a Form 4 and issuers must report their aggregate repurchase and the related prices on a quarterly basis under Item 703 of Regulation S-K. This disclosure of actual transactions appears more appropriate and less open to unforeseen consequences than a requirement to disclose potential transactions that may never occur.

Disclosure of Insider Trading Policies and Procedures

  • Item 408(b) of Regulation S-K does not specify the content of an issuer's insider trading policy. The SEC notes that issuers "should endeavor to provide detailed and meaningful information from which investors can assess the sufficiency of their insider trading policies and procedures."13  This will likely result in detailed summaries with respect to quarterly blackout periods, preclearance, standing orders, pledging, hedging and so on. In our view, the SEC's goal would be achieved if issuers were merely required to file the insider trading policy as an exhibit to the Form 10-K unless it has been made available on the issuer's website. This is how the SEC has addressed disclosure of an issuer's code of ethics pursuant to Item 406 of Regulation S-K and Item 16B of Form 20-F.

Disclosure Regarding the Timing of Option Grants and Similar Equity Instruments Shortly Before or After the Release of MNPI

  • The disclosure requirements proposed by the SEC would result in more widespread and routine adoption of formal equity grant policies that set forth an issuer's policies and procedures to be followed in connection with the grant of options and other equity incentives based on market price. 
  •  The disclosure requirements appear to give equal credence to awards made in the middle of a blackout period (more than 14 days before an earnings release) compared to the middle of an open window (more than 14 days after an earnings release). Practices vary among issuers; however, it is generally considered preferable for options to be granted during an open window so that the market value of the underlying stock reflects any MNPI. Awarding options that are rapidly (and predictably) out of the money due to release of MNPI shortly after their grant serves the interests of neither stockholders nor employees. 

 

1 The proposed rule regarding Rule 10b5-1 is available here
The proposed rule regarding repurchases is available here
3 Section 302 requires an issuer's principal executive officer and principal financial officer to certify, among other things, that based on their knowledge, the Form 10-K, Form 10-Q or Form 20-F that they have signed does not contain untrue statements of material facts or omit to state material facts necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periods covered by the reports.
4  These proposed rules would not apply to FPIs.
5 FPIs would also be required to provide analogous disclosure in their annual reports pursuant to a new Item 16J.
6 The impetus for including disclosure on pledging policies comes from proxy advisers and institutional investors, who view an anti-pledging policy as a risk mitigation measure in an executive compensation program and may recommend against or vote against issuers whose insiders pledge large amounts of issuer stock.
7 The proposed 14-day window is designed to cover the period between a board's meeting after the end of fiscal quarter and before the earnings release, when the board would likely be aware of MNPI that could affect the stock price of the issuer.
8 Consistent with the scaled approach to their executive compensation, smaller reporting companies and emerging growth companies would be permitted to limit their disclosures about specific option awards to the principal executive officer, the two most highly compensated executive officers other than the principal executive officer at fiscal year-end, and up to two additional individuals who would have been the most highly compensated but for not serving as executive officers at fiscal year-end.
9 See the Staff Accounting Bulletin here.
10 The proposed rules are available here. Information disclosed pursuant to Item 703 of Regulation S-K and Form SR would also be required to be reported using Inline XBRL.
11 FPIs would make this disclosure in Item 16E of Form 20-F. 
12 In the proposing release, the SEC explained that the current Form 5 reporting approach "may allow insiders to engage in problematic practices involving gifts of securities, such as insiders making stock gifts while in possession of [MNPI]."
13 Examples provided in the proposing release include "information on the issuer's process for analyzing whether directors, officers, employees or the issuer itself, when conducting an open-market share repurchase, have MNPI; the issuer's process for documenting such analyses and approving requests to purchase or sell its securities; or how the issuer enforces compliance with any such policies and procedures it may have."

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