Trading parameters and other instructions
We recommend that the insider provide clear trading parameters and other instructions in writing to the dealer or plan administrator at the time of entering into the ASDP. The plan should either include a formula or specify the number of securities to be sold, and set out any minimum trade price and any date or frequency of sales. Providing pre-determined trading parameters or other instructions when entering into the plan would reduce the risk of the insider attempting to make discrete investment decisions, such as influencing the timing of trades or the number of securities to be sold.
We also recommend that the plan prohibit the dealer from consulting with the insider regarding any sales under the plan and prohibit the insider from disclosing to the dealer any information concerning the issuer that might influence the execution of the plan.
While the term of an ASDP is generally set to meet the needs of the insider, we recommend that the term be sufficiently long to avoid any potential use of MNPI (for example, 12 months). Although we recognize that it may be the result of legitimate trading parameters and other instructions, we recommend avoiding concentrating trades at the beginning of the term of a plan to help insiders manage the perception in the market that trades were timed to benefit from MNPI or that information was withheld to the market to benefit insiders.
We recommend that trades under an ASDP do not start before the issuer’s next interim financial report or annual financial statements, as the case may be, have been filed.
We are of the view that the waiting period, which is the period between the establishment of an ASDP and the first transaction made under the plan, is key to the legitimacy of ASDPs. The longer the waiting period, the more likely any insider’s MNPI will be obsolete or publicly disclosed prior to the commencement of trading under the plan.
Amendments, suspension and termination
We recommend that an ASDP contain meaningful restrictions on the ability of the insider to amend, suspend or terminate the plan that have the effect of ensuring that the insider cannot benefit from MNPI.
Amendments to the terms and conditions of an ASDP, such as its trading parameters and other instructions, as well as the suspension or termination of an ASDP by an insider, may give rise to a perception that the change to the plan is motivated by MNPI possessed by the insider and could call into question the automatic nature of the plan. However, we recognize that a plan may need to be amended, suspended or terminated for legitimate reasons in certain circumstances. In addition, we recognize that the ASDP may provide for pre-established automatic suspension or termination events (such as the death of the insider, the bankruptcy of the issuer, the entering into takeover bids, arrangements, mergers, acquisitions or other transactions affecting the securities of the issuer). We therefore recommend imposing the following meaningful restrictions on an insider’s ability to amend, suspend or terminate an ASDP, among other restrictions which may be considered appropriate:
- imposing a limit on the number or nature of permitted amendments;
- prohibiting any amendment, suspension or termination during trading blackouts under the issuer’s insider trading policy;
- requiring that the insider represent to the dealer or plan administrator that the insider is not in possession of MNPI at the time of the amendment, suspension or termination;
- requiring the insider to request that the issuer certify to the dealer or plan administrator that, to the best of the issuer’s knowledge, the insider is not in possession of MNPI when amending, suspending or terminating the ASDP;
- requiring the insider to request that the issuer certify to the dealer or plan administrator that the ASDP is amended, suspended or terminated in accordance with any insider trading policy or other relevant internal policies of the issuer;
- imposing the waiting period recommended above after any amendment or suspension;
- requiring that the issuer or the insider disclose in a news release filed on SEDAR [FN 3] the circumstances that led to the amendment, suspension or termination and, where applicable, the nature of the amendment, together with a representation by the insider that the insider was not in possession of any MNPI at the time of such amendment, suspension or termination;
- obtaining the approval of the board of directors of the issuer for any amendment, suspension or termination.
To help manage perception in the market, we also recommend that an insider consider whether changing the number of the issuer’s securities sold under the plan through discrete investment decisions to sell the securities outside the ASDP, or establishing overlapping plans, could be considered an indirect amendment to the plan.
FN 3 References to SEDAR in this notice mean the System for Electronic Document Analysis and Retrieval as at the date of this notice, and also include any successor to that system.