STROOCK CLIENT MEMORANDUM

Transcription

1 STROOCK CLIENT MEMORANDUM RULE 144 FREQUENTLY ASKED QUESTIONS MARCH 3, 2008 IN THIS MEMORANDUM A. Understanding Rule What is Rule 144? What is the purpose of Rule 144? Who may use Rule 144? What are the implications of being deemed an underwriter What is a safe harbor? How are transactions by affiliates of the issuer treated B. Conditions of Rule What are the conditions for qualifying under Rule 144? How can a seller meet the adequate current public information requirement of Rule 144(c)? What are the informational requirements of Rule 15c2-11? What is the holding period requirement under Rule 144? When does the holding period begin to run? When does the holding period begin to run for securities purchased using a promissory note or other obligation? When does the holding period begin to run for securities acquired from the issuer through a dividend or stock split? When does the holding period begin to run for securities acquired from the issuer in a conversion? When does the holding period begin to run for securities acquired from the issuer as part of a cashless exercise of options or warrants? When does the holding period begin to run for securities acquired as part of a contingent payment? When does the holding period begin to run for pledged securities? What is tacking? When may a recipient of restricted securities tack the holding period of another person? What are the volume limitations for sales of equity securities What are the volume limitations for sales of debt securities How do these volume limitations apply to affiliates of the issuer? When are sales of securities aggregated under Rule 144? What types of sales are excluded from the volume limitations of Rule 144? How may securities be sold by affiliates of the issuer pursuant to Rule 144? What are brokers transactions What are riskless principal transactions under Rule 144? How may securities be sold by non-affiliates pursuant to Rule 144? C. Reporting 1.What is the purpose of Form 144? D. Miscellaneous 1. Can some securities of the same type be registered while others are left unregistered?

2 1.What is Rule 144? A. Understanding Rule 144 Under Section 5 of the Securities Act of 1933 (the Securities Act ), anyone selling or offering to sell a security in interstate commerce must either cause the issuer to register the security under the Securities Act or make use of an available exemption from registration under Section 3(a) or Section 4 of the Securities Act. The exemption used in millions of open market transactions every day is Section 4(1), which provides that a transaction by any person other than an issuer, underwriter or dealer is not subject to the Section 5 registration requirements. Section 2(11) of the Securities Act provides that the term issuer includes not only the issuer but also any person directly or indirectly controlling or controlled by the issuer, or any person under direct or indirect common control with the issuer. This definition is virtually the same as the definition of affiliate in Rule 144. Since the Section 4(1) exemption is by its terms not available to issuers, it follows that the Section 4(1) exemption is not available to affiliates of the issuer. However, recognizing that there are situations when executive officers, directors and large shareholders (traditionally regarded as control persons of an issuer, though ultimately this is a question of fact) of an issuer may need the ability to sell securities in the open market, the Securities and Exchange Commission (the SEC ) created the Rule 144 safe harbor. Section 4(1) was intended to exempt only routine trading transactions between individual investors with respect to securities already issued and not to exempt distributions by issuers or affiliates. A person reselling securities under Section 4(1) of the Securities Act must sell the securities in such limited quantities and in such a manner as not to disrupt the trading markets. 2.What is the purpose of Rule 144? Rule 144 allows for the public sale of (1) restricted securities of an issuer, and (2) the sale of restricted or non-restricted securities by affiliates of an issuer, transactions which would otherwise lack an available exemption from the registration requirements of Section 5. Rule 144 sets forth criteria that allow these transactions to take place within the system of full and fair disclosure set up by the Securities Act. Rule 144 was devised to inhibit the creation of public markets in securities of issuers concerning which adequate current information is not available to the public. In addition to requiring that current public information regarding the company whose securities are to be sold be available,rule 144 sets forth a holding period for restricted securities, as well as, in certain instances, limitations on the amount of securities sold, manner of sale requirements, and notice of sale requirements. The holding periods required for persons who buy restricted securities under the Section 4(2) private placement exemption are intended to ensure that these purchasers have assumed the economic risk of investment and did not acquire the securities to be sold under Rule 144 with distributive intent. Likewise, the restrictions on the amount of securities sold and the requirements as to the manner of sale and notice of sale are additional safeguards intended to prevent disruption of trading markets. Source: Preliminary Note to Rule 144 of the Securities Act; SEC Release No (December 6, 2007). 3.Who may use Rule 144? Two kinds of stockholders may benefit from Rule 144: affiliates of the issuer, and those who hold restricted stock. An affiliate in this case (as set forth in Rule 144(a)) is a person who, directly or indirectly, controls, is controlled by, or is under common control with, the issuer. By common practice, large stockholders (typically 10% is regarded as the threshold for an analysis of affiliate status), directors, and executive officers are treated as affiliates, although whether a person or an entity is an affiliate with respect to another is a question of fact that depends on the facts and circumstances. Rule 144(a)(2) includes within the definition of a control person (i) relatives or spouses who share the same home with an affiliate, (ii) any trusts or estates when such persons either act as trustees or executors thereof or collectively own beneficial 2

3 interests of 10% or more, and (iii) corporations or other organizations in which such persons own equity interests of 10% or more. Restricted securities means securities acquired directly or indirectly from the issuer or from an affiliate of the issuer, in a transaction or chain of transactions not involving a public offering (e.g., a private placement exempt from the registration requirement of Section 5 pursuant to Section 4(2)). Rule 144(a)(3) sets forth the types of securities that are restricted securities. One of the conditions of a good private placement is that the securities have come to rest, i.e., that the purchaser intends to hold the securities for investment. An investor seeking to resell restricted securities runs the risk of causing the issuer to be in violation of the exemption under which the securities were issued because the original sale may be recharacterized as a public offering (an indirect distribution in which the investor functions as underwriter for the issuer). As previously noted, the Section 4(1) exemption is not available to underwriters. Source: Rule 144(a) of the Securities Act. 4.What are the implications of being deemed an underwriter An underwriter cannot avail itself of the Section 4(1) ordinary trading exemption. Section 2(11) of the Securities Act defines an underwriter as any person who has purchased from an issuer with a view to... distribution. While it is clear that an investment banking firm that arranges with an issuer a public sale of the issuer s securities is an underwriter, the activities of an individual investor also may fall within the definition of an underwriter. As described above, an ordinary stockholder who purchases restricted securities from an issuer and subsequently resells them may be found to have participated in a distribution and would be considered an underwriter. Likewise, an affiliate who wishes to arrange a public sale of its restricted or nonrestricted securities may not be able to avail itself of the Section 4(1) exemption because the brokerdealer who participates in the transaction runs the risk of being deemed an underwriter. Consequently, if a stockholder inadvertently acts as an underwriter, then Section 4(1) is not available for that transaction, the original transaction under which the securities were sold to the stockholder also may no longer be eligible for the exemption that had been thought to apply, and the various liability provisions of the Securities Act become applicable. In light of these potentially disastrous consequences, and recognizing that some sales of restricted securities present little or no risk to the investing public, the SEC created Rule 144 as a safe harbor to provide greater certainty. 5.What is a safe harbor? If a transaction meets the requirements of Rule 144, the transaction is deemed to be exempt under Section 4(1) from the registration requirements of Section 5. If the transaction violates some provision of Rule 144 such that Rule 144 no longer applies to the transaction, the transaction may nonetheless still be exempt under Section 4(1) under a common law analysis. 6. How are transactions by affiliates of the issuer treated Rule 144 applies to sales of securities by affiliates of the issuer regardless of whether such securities were acquired in a public offering. An affiliate selling either restricted or non-restricted securities faces a similar problem. The affiliate may not be able to invoke an exemption in a resale of those securities because the affiliate also may be deemed to be acting as an underwriter. The affiliate may, however, sell the securities to the public in accordance with the applicable terms and conditions of Rule 144. B. Conditions of Rule What are the conditions for qualifying The conditions to be met in order for a sale to qualify under Rule 144 are as follows: (1) adequate current public information with respect to the issuer, (2) a holding period for restricted securities, and (3), in the case of affiliates sales, certain volume limitations and 3

4 manner of sale requirements. In addition,there may be a notice requirement if the amount of securities sold exceeds certain thresholds. 2. How can a seller meet the adequate current public information requirement of Rule 144(c)? The seller must fit into one of two categories to satisfy the Rule 144(c) adequate current public information requirement: (i) The issuer has securities registered under the Securities Act or the Securities Exchange Act of 1934 (the Exchange Act ), has been subject to the SEC s reporting requirements for at least 90 days prior to the sale and has filed all Exchange Act reports required to be filed during the twelve months preceding the sale (or for such shorter period that the issuer was required to file reports); or (ii) The issuer is a non-reporting company that meets the informational requirements of Rule 15c2-11 of the Exchange Act. Source: Rule 144(c) of the Securities Act. 3.What are the informational requirements of Rule 15c2-11? Rule 15c2-11 requires that the broker or dealer have extensive specified information about the issuer in its records and make such information reasonably available to anyone expressing an interest in a proposed transaction in the security with such broker or dealer. The SEC staff has indicated that the requirements of Rule 15c2-11 will be met if such specified information is distributed by the issuer to its security holders, brokers, market makers and other interested persons and that information about the issuer is published in a recognized financial reporting service. The following information must be disclosed: (i) (ii) The exact name of the issuer and its predecessor (if any); The address of its principal executive offices; (iii) The state of incorporation, if it is a corporation; (iv) The exact title and class of the security; (v) The par or stated value of the security; (vi) The number of shares or total amount of the securities outstanding as of the end of the issuer s most recent fiscal year; (vii) The name and address of the transfer agent; (viii) The nature of the issuer s business; (ix) The nature of products or services offered; (x) The nature and extent of the issuer s facilities; (xi) The name of the chief executive officer and members of the board of directors; (xii) The issuer s most recent balance sheet and profit and loss and retained earnings statements; (xiii) Similar financial information for that part of the two preceding fiscal years as the issuer or its predecessor has been in existence; (xiv) Whether the broker or dealer or any associated person is affiliated, directly or indirectly, with the issuer; and (xv) Whether the quotation is being submitted or published directly or indirectly on behalf of the issuer or any director, officer or other person, who is directly or indirectly the beneficial owner of more than 10% of the outstanding units or shares of any equity security of the issuer, and, if so, the name of that person, and the basis for any exemption under the federal securities laws for any sales of such securities on behalf of that person. Source: Rule 15c2-11 of the Exchange Act; J. William Hicks, Resales of Restricted Securities, Thomson/West What is the holding period requirement An investor seeking to sell restricted securities must meet a holding period requirement of either six 4

5 months or one year under Rule 144(d), the shorter holding period being applicable only in cases where the issuer is, and has been for a period of at least 90 days immediately before the sale, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. For investors seeking to sell restricted securities issued by non-reporting issuers, the applicable holding period is one year. Restricted securities may not be sold at all unless the investor for whose account they are sold has been the beneficial owner for at least the applicable holding period prior to the sale. Source: Rule 144(d) of the Securities Act. 5.When does the holding period begin to run? The applicable holding period is measured from the later of the date when the securities are acquired by purchase from the issuer or from an affiliate of the issuer. When the securities are acquired from the issuer or from an affiliate of the issuer by purchase, the applicable holding period begins when the full purchase price (or other consideration) is actually paid by the acquirer of the securities to the issuer or affiliate of the issuer. 6.When does the holding period begin to run for securities purchased using a promissory note or other obligation? A promissory note or other obligation to pay the purchase price, or entering into an installment purchase contract with a seller, is deemed full payment only if the promissory note, obligation or contract (1) provides the seller full recourse against the purchaser of the securities,(2) is secured by collateral, other than the purchased securities, with a fair market value at least equal to the purchase price of the purchased securities, and (3) shall have been discharged by payment in full prior to the sale of the securities. Source: Rule 144(d)(2) of the Securities Act. 7.When does the holding period begin to run for securities acquired from the issuer through a dividend or stock split? Securities that were acquired from an issuer as a dividend or pursuant to a stock split,reverse split or recapitalization shall be deemed to have been acquired at the same time as the securities on which the dividend or, if more than one, the initial dividend was paid, the securities involved in the split or reverse split, or the securities surrendered in the recapitalization. Source: Rule 144(d)(3)(i) of the Securities Act. 8.When does the holding period begin to run for securities acquired from the issuer in a conversion? If the securities sold were acquired from the issuer solely in exchange for other securities of the same issuer, the newly acquired securities shall be deemed to have been acquired at the same time as the securities surrendered for conversion or exchange, even if the securities surrendered were not convertible or exchangeable by their terms. Source: Rule 144(d)(3)(ii) of the Securities Act. 9.When does the holding period begin to run for securities acquired from the issuer as part of a cashless exercise of options or warrants? If the securities sold were acquired from the issuer upon a cashless exercise of options or warrants, the securities so acquired shall be deemed to have been acquired at the time the corresponding options or warrants were acquired, even if the options or warrants did not provide for cashless exercise by their terms. Source: Rule 144(d)(3)(x) of the Securities Act. 10.When does the holding period begin to run for securities acquired as part of a contingent payment? Securities that were acquired as a contingent payment of the purchase price for an equity interest in a business, or the assets of a business, sold to the issuer or to an affiliate of the issuer shall be deemed to have been acquired at the time of such sale only if the issuer or affiliate was then committed to issue the securities subject only to conditions other than the payment of further consideration for such securities. An agreement entered into in connection with any such purchase to remain in the employment of, or not to compete with, the issuer or affiliate or the rendering of 5

6 services pursuant to any such agreement shall not be deemed to be the payment of further consideration for such securities. Source: Rule 144(d)(3)(iii) of the Securities Act. 11.When does the holding period begin to run for pledged securities? Securities which are bona fide pledged by an affiliate of the issuer when sold by the pledgee, or by a purchaser, after a default in the obligation secured by the pledge, shall be deemed to have been acquired when they were acquired by the pledgor, except that if the securities were pledged without recourse they shall be deemed to have been acquired by the pledgee at the time of the pledge or by the purchaser at the time of purchase. Source: Rule 144(d)(3)(iv) of the Securities Act. 12.What is tacking? Under an amendment to Rule 144 effective April 30, 1990, holding periods of owners may be combined ( tacked ) with holding periods of predecessor owners who are unaffiliated with the issuer in computing the applicable holding period. Tacking is also permitted in certain instances where the predecessor owner is an affiliate. Source: SEC Release No (December 6, 2007), SEC Release No (April 23, 1990). 13.When may a recipient of restricted securities tack the holding period of another person? There are four instances in which Rule 144 recognizes an identity of interests: pledgor-pledgees, donordonees, settlors-trusts, and decedents-estates. Under Rule 144(d)(3)(iv), a pledgee or a purchaser may sell securities bona fide pledged by an affiliate of an issuer upon a default in the obligation secured by the pledge. The holding period of the purchaser or pledgee can be tacked on to the holding period of the pledgor. If, however, the securities were pledged without recourse, the securities will be deemed to have been acquired by the pledgee at the time of the pledge or by the purchaser at the time of purchase. Under Rule 144(d)(3)(v), the donee of securities acquired from an affiliate of the issuer can tack on to the holding period of the donor. The securities will be deemed to have been acquired by the donee when they were acquired by the donor. Under Rule 144(d)(3)(vi), when a settlor of a trust is an affiliate of the issuer, the securities acquired by the trust from the settlor are deemed to have been acquired by the trust on the date when they were acquired by the settlor. Likewise, when those securities from the settlor-affiliate are acquired by the trust s beneficiaries, they also are deemed to have been acquired on the date they were acquired by the settlor. Under Rule 144(d)(3(vii), when the decedent is an affiliate of the issuer, the holding period of the securities held by the estate relates back to the time they were acquired by the decedent. Likewise, when those securities are acquired by the beneficiaries of the estate, the holding period also relates back to the time they were acquired by the decedent. There is no holding period, however, when the estate is not an affiliate of the issuer or if the securities are sold by a beneficiary of the estate who is not an affiliate of the issuer. Although there is no holding period, these transferees must comply with paragraphs (c) and (h) of the Rule. Source: Rule 144(d) of the Securities Act, SEC Release No (December 6, 2007), SEC Release No (April 23, 1990). 14.What are the volume limitations for sales of equity securities Under Rule 144(e), the amount of equity securities that can be sold during any three-month period cannot exceed the greater of (1) 1% of the outstanding securities of the class being sold, or (2) the average weekly trading volume for the class during the four-week period preceding the sale of the securities, or (3) the average weekly trading volume reported through the consolidated transaction reporting system. Over-the-counter stocks, such as those quoted on the OTC Bulletin Board and the pink sheets, must adhere to the 1% test. Source: Rule 144(e)(1) of the Securities Act. 6

7 15.What are the volume limitations for sales of debt securities Under Rule 144(e), the amount of debt securities (a term which, under Rule 144, includes non-participatory preferred stock and asset-backed securities) that can be sold during any three-month period, regardless of whether those securities are restricted, cannot exceed the greater of (1) the limitations applicable to restricted equity securities, or (2) together with all sales of securities of the same tranche (or class when the securities are non-participatory preferred stock) sold for the account of such person, 10% of the principal amount of the tranche (or class in cases where the securities are non-participatory preferred stock). Source: Rule 144(e)(2) of the Securities Act. 16. How do these volume limitations apply to affiliates of the issuer? For affiliates of the issuer, in the case of both equity and debt securities, the volume limitations always apply to both restricted and unrestricted securities. Source: Rule 144(e) of the Securities Act. 17.When are sales of securities aggregated Certain types of sales of securities are combined for the purposes of calculating the amount of securities that can be sold pursuant to Rule 144(e): When two or more individuals constitute the same person under Rule 144(a)(2), their sales of restricted or unrestricted securities will be aggregated. Under Rule 144(d)(1), beneficial owners of restricted securities may tack their holding period onto the holding period of the transferors of the restricted securities. In certain instances, the sales of the transferors and the beneficial owners are aggregated for purposes of the volume requirements. When both convertible securities and securities of the class into which they are convertible are sold, these securities are aggregated 7 together under Rule 144(e)(3)(i). Convertible securities should be treated as if they have been converted into the class into which they are convertible for the purpose of determining both the aggregate amount of convertible securities sold and securities of the class into which they are convertible. Pledgor-pledgees, donor-donees, settlors-trusts, and decedents-estates who may tack holding periods under Rule 144(d)(3) also must aggregate their sales for the purpose of determining the amount of securities under Rule 144(e). When two or more affiliates or other persons agree to act in concert for the purpose of selling securities of an issuer, all the securities of the same class sold for the account of all such persons will be aggregated. The existence of an agreement to act in concert is a factual determination. Source: Hicks, Resales of Restricted Securities. 18.What types of sales are excluded from the volume limitations of Rule 144? Securities sold pursuant to an effective registration statement under the Securities Act; Securities that are sold pursuant to an exemption under Regulation A under the Securities Act; Securities sold in a transaction exempt pursuant to Section 4 of the Securities Act and not involving any public offering (includes the Section 4-1 1/2 exemption and sales made pursuant to Rule 144A); Securities sold offshore pursuant to Regulation S; and Securities sold by persons who are not affiliates of the issuer (and who have not been affiliates of the issuer during the preceding three months). Source: Hicks, Resales of Restricted Securities.

8 19. How may securities be sold by affiliates of the issuer pursuant to Rule 144? Sales of securities by affiliates of the issuer must comply with certain manner of sale restrictions set forth in Rule 144(f). These manner of sale restrictions apply only to affiliates sales of equity securities and do not apply to sales of debt securities. Under Rule 144(f), equity securities sold pursuant to Rule 144 must be sold either (1) in unsolicited brokers transactions, (2) in transactions directly with or through a market maker, or (3) in riskless principal transactions. Source: Rule 144(f) of the Securities Act. 20.What are brokers transactions Brokers transactions include transactions by a broker in which such broker does no more than execute the order to sell for the usual and customary broker s commission and does not solicit orders to buy the securities (with certain exceptions). In such transactions, the investor (1) may not solicit or arrange for the solicitation of orders to buy the securities and (2) may not make any payment in connection with the offer or sale except to the broker who executes the order to sell the securities. Source: Rule 144(f) and (g) of the Securities Act. 21.What are riskless principal transactions Riskless principal transactions are defined under Rule 144(f)(1)(iii) to mean principal transactions where, after having received from a customer an order to buy, a broker or dealer purchases the security as principal in the market to satisfy the order to buy or, after having received from a customer an order to sell, sells the security as principal to the market to satisfy the order to sell. In such transactions, (1) the offsetting trades must be executed at the same price (exclusive of an explicitly disclosed markup or markdown, commission equivalent, or other fee), (2) the transaction must be permitted to be reported as riskless under the rules of a self-regulatory organization, (3) the broker must receive no more than the usual and customary brokers commission,and (4) the broker must neither solicit nor arrange for the solicitation of orders to buy the securities (with certain exceptions). In addition, the broker or dealer, after reasonable inquiry, must not be aware of circumstances indicating that the person for whose account the securities are sold is an underwriter with respect to the securities or that the transaction is part of a distribution of securities of the issuer. Source: Note to Rule 144(f)(1) of the Securities Act. 22. How may securities be sold by non-affiliates pursuant to Rule 144? Sales of restricted securities by persons who are not affiliates of the issuer (and who have not been affiliates of the issuer during the preceding three months) are not required to comply with the manner of sale restrictions set forth in Rule 144(f), the volume limitations set forth in Rule 144(g), or the notice requirements of Rule 144(h) (discussed below). The only requirements applicable to such sales are (1) the holding periods set forth in Rule 144(d), and (2) in certain instances, the current public information requirement set forth in Rule 144(c). Therefore, in cases where the securities proposed to be sold have been issued by an issuer that is, and has been for a period of at least 90 days immediately before the sale, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, sales by non-affiliates must comply with the six month holding period set forth in Rule 144(d). After the six month holding period, and until the securities have been held for one year, the non-affiliate may undertake unlimited public resales of such securities, except that the Rule 144(c) current public information requirement still applies (after the securities have been held for one year, the non-affiliate may undertake unlimited public resales without the need to comply with Rule 144(c)). In cases where the securities proposed to be sold have been issued by an issuer that is a non-reporting company, sales by non-affiliates must comply only with the one year holding period set forth in Rule 144(d), and upon expiry thereof, may undertake unlimited public resales without complying with any other Rule 144 requirements. 8

9 C. Reporting D. Miscellaneous 1.What is the purpose of Form 144? If, during any three-month period, an investor who is an affiliate of the issuer proposes to sell more than 5,000 shares or other units or securities having an aggregate value in excess of $50,000, the investor must file notice thereof on Form 144 with the SEC and the principal securities exchange on which the securities are listed. Three copies of Form 144 must be filed with the SEC at its principal office in Washington D.C. The filer of Form 144 must possess a bona fide intention to sell the securities within a reasonable time after the notice is filed. Source: Rule 144(h) of the Securities Act. 1. Can some securities of the same type be registered while others are left unregistered? The securities offered in a registered public offering are freely tradeable. Thus, the provisions of Rule 144 need not be complied with for those securities, assuming the holder is not an affiliate of the issuer. However, the mere registration by an issuer of certain securities does not change the status of unregistered securities of the same type. Thus, following a registered public offering, an investor could hold both registered securities and restricted securities of the same class. The registered securities could be freely sold, assuming the holder is not an affiliate, while the sale of the restricted securities would continue to require compliance with Rule 144. By Hillel M. Bennett ( ), a Partner in the Securities and Private Funds Practice Groups of Stroock & Stroock & Lavan LLP, and Christopher G. Boies, an associate (awaiting admission to the Bar) in Stroock s Securities Practice Group. 9

10 New York 180 Maiden Lane New York, NY Tel: Fax: Los Angeles 2029 Century Park East Los Angeles, CA Tel: Fax: Miami Wachovia Financial Center 200 South Biscayne Boulevard, Suite 3100 Miami, FL Tel: Fax: This Client Memorandum is a publication of Stroock & Stroock & Lavan LLP 2008 Stroock & Stroock & Lavan LLP. All Rights Reserved. Quotation with attribution is permitted. This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome. Stroock & Stroock & Lavan LLP is a law firm with a national and international practice serving clients that include investment banks, commercial banks, insurance and reinsurance companies, mutual funds, multinationals and foreign governments, industrial enterprises, emerging companies, and technology and other entrepreneurial ventures. For further information about this Client Memorandum, or other Stroock publications, please contact Richard Fortmann, Senior Director-Legal Publications, at