The Securities Act of 1933 (“Securities Act”) Rule 144 sets forth certain requirements for the use of Section 4(1) for the resale of securities. Section 4(1) of the Securities Act provides an exemption for a transaction “by a person other than an issuer, underwriter, or dealer.” The terms “Issuer” and “dealer” have pretty straightforward meanings under the Securities Act, but the term “underwriter” does not. Rule 144 provides a safe harbor from the definition of “underwriter.” If all the requirements for Rule 144 are met, the seller will not be deemed an underwriter and the purchaser will receive unrestricted securities.
Although not set out in the statute, all transfer agents and Issuers, along with most clearing and brokerage firms, require an opinion of counsel as to the application of Rule 144 prior to removing the legend from securities and allowing their sale under Rule 144. The opinion letter must set forth that the facts regarding that Issuer, particular stock and selling shareholder comply with the requirements under Rule 144.
Rule 144 only addresses the resale of restricted or control securities, not unrestricted securities or sales directly by an Issuer. Unrestricted securities (such as securities that have been registered under the Securities Act) may be sold without reference or regard to the Rule. Control securities are those securities held by an affiliate of the issuing company, and restricted securities are securities acquired in unregistered, private sales from the issuing company or from an affiliate of the Issuer.
Rule 144 provides certain conditions that must be met for sales by both affiliates and non-affiliates which conditions vary depending on whether the Issuer of the securities is a reporting or non-reporting Issuer. The following chart summarizes the Rule 144 requirements:
|Affiliate or Person Selling on Behalf of an Affiliate||Non-Affiliate (and has not been an affiliate during the prior three months)|
|Restricted Securities of Reporting Issuers||
During six-month holding period – no resales under Rule 144 Permitted
After six-month holding period– may resell in accordance with all Rule 144 requirements, including:
• Current public information
During six-month holding period – no resales under Rule 144 permitted
After six-month holding period but before one year – unlimited public resales under Rule 144, except that the current public information requirement still applies
After one-year holding period – unlimited public resales under Rule 144; need not comply with any other Rule 144 requirements
|Restricted Securities of Non-Reporting Issuers||During one-year holding period – no resales under Rule 144 permittedAfter one-year holding period–may resell in accordance with all Rule 144 requirements, including:
• Current public information
• Volume limitations
• Manner of sale requirements
• Filing of Form 144
|During one-year holding period – no resales under Rule 144 permittedAfter one-year holding period – unlimited public resales under Rule 144; need not comply with any other Rule 144 requirements|
The six-month holding period only applies to Issuers that are subject to the reporting requirements of the Securities Exchange Act of 1934 (“Exchange Act”). A voluntary filer is not subject to the Exchange Act reporting requirements, and the longer one-year holding period is applicable. However, the determination of whether the Issuer is reporting or non-reporting is made as of the time of the proposed sale, as is the determination of the other Rule 144 requirements. Accordingly, if, following the issuance of securities, a non-reporting issuer files a Form 10 registration statement and becomes subject to the reporting requirements of the Exchange Act, the six-month holding period would apply.
The current public information requirement is measured at the time of each sale of securities. That is, the Issuer, whether reporting or non-reporting, must satisfy the current public information requirements as set forth in Rule 144(c) at the time that each resale of securities is made in reliance on Rule 144. Many Form 144’s and attorney opinion letters cover a three-month period and a majority of Sellers’ market securities over that three-month period. However, the Seller (or person selling on behalf of the Seller, such as the broker-dealer) is required to make a determination that the current public information is available at the time of each sale.
The holding period is determined as of the date of the proposed sale—provided, however, that Rule 144 makes numerous specific provisions for the calculation of the holding period and enumerates specific instances in which a holding period may be tacked onto the holding period of previously issued securities. For example, in determining the holding period where the securities were paid with a promissory note, installment contract or other obligation to pay in the future, the holding period does not begin until payment has been made in full—that is, unless the promissory note or installment contract provides for full recourse against the purchaser of the securities, is secured by fair value collateral other than the securities purchased, and has been paid in full prior to the proposed Rule 144 sale date.
As another example, securities acquired from the Issuer as a dividend or pursuant to a stock split, reverse split or recapitalization shall be deemed to be acquired at the same time as the securities on which the dividend is paid or the securities surrendered in the recapitalization. If securities were acquired by the Issuer solely in exchange for other securities of the same Issuer, such as in a 3(a)(9) transaction, the newly acquired securities are deemed to be acquired at the same time as the securities surrendered in the exchange or conversion.
When relying on Rule 144 for the resale of over-the-counter traded securities (pinksheets or bulletin board), sellers may only sell 1% of the outstanding securities of the Issuer in every 90-day period. Calculations of volume restrictions based on trading volume are only available for the sale of exchange traded securities.
The manner of sale requirements require that securities sold in reliance on Rule 144 be sold only in broker’s transactions, directly with a market maker or in riskless principal transactions. Moreover, the person selling the securities may not arrange for the solicitation of any sale orders. The posting of a customer limit order is not considered a solicitation for purposes of this rule.
Finally, and importantly, Issuers and sellers must be aware that Rule 144 is not available to shell companies. A shell company is an Issuer with no or nominal operations or no or nominal non-cash assets. The rule is unavailable for the sale of securities initially issued by a shell company or any Issuer that has, at any time, previously been a shell company unless all the requirements of Rule 144(i)(2) are met. These requirements include that the Issuer no longer be a shell company, is subject to the reporting requirements of the Exchange Act for 12 months following the time that it filed Form 10 information indicating it was no longer a shell company, and is current with all Exchange Act reporting requirements.
Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host of LawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
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