Securities Exchange Act of 1934 — Section 16
June 25, 2008
Response of the Office of Chief Counsel
Society of Corporate Secretaries & Corporate Governance Professionals
You have asked for the Division's views with respect to aggregate reporting of same-day, same-way open market purchases or sales on Form 4 and Form 5 under Section 16(a) of the Securities Exchange Act of 1934 ("Exchange Act").
Instruction 4(a)(ii) to Form 4 and Form 5 provides that "[e]ach transaction should be reported on a separate line." You represent that because brokers execute trade orders in small increments and report trade prices carried out to four decimal places, a person subject to Section 16(a) (a "reporting person") often must report dozens of transactions on multiple Forms 4 in order to report the execution of a single market order. You also represent that reporting each separately priced transaction on a separate line in this manner makes it harder for investors to understand the trade order placed by the reporting person.
Based on the representations in your letter, the Division will not recommend enforcement action to the Commission under Section 16(a) against a reporting person who, through a trade order executed by a broker-dealer, effects multiple same-way open market purchase or sale transactions on the same day at different prices if the reporting person:
reports on a single line of the applicable form all such transactions that occur within a one dollar price range,
reports in the price column the weighted average purchase or sale price for the transactions reported on that line,
specifies, in a footnote to the applicable form, the range of prices for the transactions reported on that line, and
undertakes, in a footnote to the applicable form, to provide upon request by the Commission staff, the issuer, or a security holder of the issuer, full information regarding the number of shares purchased or sold at each separate price.
This position is limited to open market purchase or sale transactions reportable using transaction codes "P" and "S," respectively, and does not apply to aggregate reporting of separate transactions involving direct and indirect forms of beneficial ownership, or different forms of indirect beneficial ownership. In reaching this position, we note your representations that the range of prices reported in the footnote would allow the issuer and security holders to determine whether the reporting person realized a short-swing profit for purposes of Exchange Act Section 16(b), and the detailed information regarding the number of shares purchased or sold at each separate price that the reporting person would provide upon request would make it possible to determine the exact amount of Section 16(b) liability.
This position is based on the representations made to the Division in your letter. Any different facts or conditions might require the Division to reach a different conclusion. Further, this response expresses the Division's position on enforcement action only and does not express any legal conclusion on the question presented.
Anne M. Krauskopf
Senior Special Counsel
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