Sep 13, 2013

C Suite Divorces

Best Buy CEO Hubert Joly’s recent divorce received publicity this week. According to his SEC filing hesold 451,153 shares of Best Buy for a total of $16,700,000, $6,000,000 of which to be used toward a divorce settlement payment to his ex-wife. CEO’s as well as other executive suite officers in publicly traded companies are obligated to file an SEC report for proposed sales of stock they own in their company. Those in the C Suite are considered to be insiders and when they sell stock it is commonly referred to as “Insider Trades”. Such a filing puts the public on notice that someone with inside knowledge of the company operations is selling all or a portion of their stock.Coincident with disclosure of Joly’s stock sale was the release of a statement by the company reassuring investors that although Mr. Joly is selling stock it was not as a result of concerns about the company. The press release let the public know that Mr. Joly needed liquidity to raise cash as well as to exercise stock options to satisfy his divorce settlement obligations and they reassured the public that he remains heavily invested in Best Buy.The foregoing points out the friction and complications of divorces involving an executive officer of a public company. Often a large percentage of marital assets or community property, are composed of stock, restrictive stock, stock options, and other such employee based benefits. Dealing with these assets in a divorce is difficult. First one must define which of those assets are marital or community property. Perhaps unvested rights are too speculative to be treated as marital or community property and the executive will be able to keep future benefits that arise from those rights without sharing them with their soon to be ex-spouse. There are also complications with valuing assets that have restrictions or are only partially vested. Finally, there are complications related to selling securities to pay cash to or to transferring stock in kind to the executive’s spouse in a divorce settlement.Most executive officers of publicly traded companies have minimum stock holding requirements. Therefore, it may not be easy to sell or transfer stock to the former spouse where it would reduce the holding requirement below that required by the company. Most often, although shares of stock owned by the executive can be transferred in kind, most of the other executive benefits such as restricted stock, restricted stock units, stock options, and various long-term incentive programs, cannot be transferred in kind.Of course, a sale of stock to get cash like Joly’s triggers income tax liabilities if the cost basis is lower than the sales price. Therefore, the actual cash that he can use is substantially less than the stock’s total value.The public relations aspect of a stock transfer or sale by an executive officer is also a problem. Clearly that is the reason why Best Buy coincided the public disclosure of Joly’s stock sale with its statement of reassurance to the public. Certainly the executive officer does not want their personal life problems to be shared with the public but it is unavoidable when publicly traded shares of stock are transferred to the soon to be or ex-wife or is sold in the public market for divorce settlement purposes.In the over 40 years that I have practiced divorce law involving upper bracket clients, I have faced many complex issues when there is a divorce among the C Suite set. An executive’s obligations to company shareholders may be in conflict with his or her obligations to their spouses in the event of divorce. It is important to reconcile those differences and achieve a settlement that not only works for the parties but works for the company’s interest as well.

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