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A public company and its shareholders<br />
(although certain of such transactions<br />
must be reported on Form 4, pursuant to<br />
Rule 16a-3(f)).<br />
To the extent that an exemption<br />
exists from the reporting requirements of<br />
Section 16(a) in respect of any transaction<br />
in a security, the short-swing profit<br />
recapture provisions of Section 16(b)<br />
likewise do not apply to such transaction<br />
(see Rule 16a-10). Rule 16a-10 does<br />
not apply in the reverse; an exemption<br />
from the short-swing profit recapture<br />
provisions of Section 16(b) does not<br />
automatically provide an exemption<br />
from the reporting requirements of<br />
Section 16(a).<br />
An insider must file Form 4 with the<br />
SEC and with each national securities<br />
exchange on which any security of the<br />
company is listed within 10 days of<br />
the end of each month in which any<br />
reportable change in position occurs with<br />
respect to any security as to which it has<br />
a direct or indirect pecuniary interest.<br />
Every transaction during such month<br />
must be reported, even if acquisitions<br />
and dispositions during such month<br />
even out.<br />
For purposes of beneficial<br />
ownership, a person can be deemed to<br />
own beneficially not only securities<br />
owned directly by such person but<br />
also securities underlying derivative<br />
instruments convertible into or<br />
exchangeable for securities. For<br />
example, the holder of an option<br />
convertible into securities within 60<br />
days will be deemed, for the purposes<br />
of Section 13(d) (and determining a<br />
person’s status as an insider under<br />
Section 16(a)), to indirectly beneficially<br />
own the underlying securities, whether<br />
or not the option has been exercised.<br />
Thus, derivative securities owned by<br />
an insider that are, within 60 days,<br />
convertible into or exercisable for<br />
more than 5% of a security will create<br />
a reporting obligation under Section<br />
13(d) with respect to the underlying<br />
securities. If such derivative securities<br />
are, within 60 days, convertible into<br />
or exercisable for more than 10% of<br />
a security, such holder will also be<br />
deemed an insider of the company of<br />
such security subject to the reporting<br />
obligations under Section 16(a).<br />
7.5 Related party transactions<br />
Cleary Gottlieb Steen & Hamilton LLP<br />
It is not uncommon, pre-IPO, for the<br />
company to do business informally<br />
with family members or without giving<br />
due consideration to whether certain<br />
transactions are done on an arm’s-length<br />
basis. Once the company conducts its<br />
IPO, however, it needs to be careful about<br />
so-called “related party transactions”<br />
because they can present potential or<br />
actual conflicts of interest and create<br />
the appearance that decisions are<br />
based on considerations other than the<br />
best interests of the company and its<br />
stockholders.<br />
Definition: The SEC defines a “related<br />
party transaction” as:<br />
• any individual or series of transactions,<br />
including any financial transaction,<br />
arrangement or relationship;<br />
• in which the company participates;<br />
• where the amount involved exceeds<br />
$120,000; and<br />
• in which any related person had or<br />
will have a direct or indirect material<br />
interest.<br />
A “related person” includes:<br />
• any director or executive officer of the<br />
company;<br />
• any nominee for director, if the<br />
information is being provided in a<br />
proxy statement;<br />
• any beneficial owner of more than 5%<br />
of any class of the company’s voting<br />
securities; and<br />
• any immediate family member of the<br />
people listed above (i.e., any child,<br />
stepchild, parent, stepparent, spouse,<br />
sibling, mother-in-law, father-in-law,<br />
son-in-law, daughter-in-law, brotherin-law<br />
or sister-in-law of such people)<br />
and any person. other than a tenant<br />
or employee, sharing the household of<br />
such people.<br />
Reasons for concern: The company should<br />
care about related party transactions for a<br />
number of reasons:<br />
• It makes good business sense—Related<br />
party transactions may involve terms<br />
that are not as competitive as might<br />
otherwise be achieved, preventing the<br />
company from best accomplishing its<br />
financial or strategic goals.<br />
• Some related party transactions are<br />
prohibited—Under the securities<br />
laws, the company is prohibited from<br />
making loans to directors or executive<br />
officers. Any such loans would have<br />
to be unwound prior to the company’s<br />
IPO. Other related party transactions<br />
can cause a director not to be<br />
considered independent for service on<br />
the company’s compensation or audit<br />
committee for tax or securities law<br />
purposes.<br />
• Stockholders care—Related party<br />
transactions signal a possible conflict<br />
of interest to investors. They can call<br />
into question whether the company<br />
puts the best interests of the company<br />
and its stockholders first, tarnishing<br />
the legitimacy of management and<br />
damaging valuation of the company’s<br />
securities.<br />
• The SEC cares—The SEC considers<br />
disclosure regarding related party<br />
transactions as integral to a materially<br />
complete picture of financial<br />
relationships with the company.<br />
As a result, securities regulations<br />
require detailed disclosure on these<br />
transactions in proxy statements,<br />
annual reports and registration<br />
statements, including Form S-1.<br />
The disclosure must cover such<br />
information as the name of the<br />
related person and the basis on<br />
which the person is a related person,<br />
the related person’s interest in the<br />
transaction with the company, the<br />
approximate dollar value of the<br />
transaction and any other information<br />
regarding the transaction that is<br />
material to investors in light of<br />
the circumstances of the particular<br />
transaction.<br />
• Stock exchanges care—The listing rules<br />
of the various stock exchanges require<br />
the company to think carefully about<br />
related party transactions. For example,<br />
under NASDAQ rules, an independent<br />
body of the company’s board of<br />
directors must conduct ongoing review<br />
and oversight of all related party<br />
transactions for potential conflict-ofinterest<br />
situations. Similarly, the NYSE<br />
recommends a similar process and also<br />
78 NYSE IPO Guide