Form 144
Encyclopedia
On December 6, 2007, the SEC published final rules revising Rule 144 under the Securities Act of 1933
, which regulates the resale of restricted securities and securities held by affiliate
s. The amendments to Rule 144, among other things:
The SEC did not adopt previously proposed provisions relating to the tolling of holding periods in connection with hedging transactions.
The amendments will become effective on February 15, 2008, and will apply to securities acquired before or after that date. Background
Rule 144 regulates the resale of “restricted securities”1 and “control securities,”2 by establishing certain conditions that must be satisfied in order for the resale to be exempt from the Securities Act registration requirements pursuant to Section 4(1) of the Securities Act—a safe harbor
from “underwriter” status for the selling security holder.
The conditions include the following:
Restricted Securities of Non-Reporting Companies. There is still a one-year holding period for affiliate and non-affiliate holders of restricted securities in non-reporting companies under amended Rule 144. After the one-year holding period, non-affiliates may now resell their restricted securities without having to comply with any other Rule 144 requirements; affiliates seeking to resell their restricted securities must still meet all Rule 144 requirements.
The manner of sale requirements of Rule 144 require securities to be sold in “brokers’ transactions” or in transactions directly with a “market maker
.”
The rule includes restrictions on (1) soliciting or arranging for the solicitation of orders to buy the securities in anticipation of, or in connection with, the Rule 144 transaction or (2) making any payment in connection with the offer or sale of the securities to any person other than the broker
who executes the order to sell the securities.
The SEC amended these rules to also permit the resale of restricted equity securities by affiliates through riskless principal transactions in which trades are executed at the same price, exclusive of any explicitly disclosed markup or markdown, commission equivalent or other fee, and the rules for a self-regulatory organization
permit the transaction to be reported as riskless.3 The amended rule also expands the definition of a “brokers’ transaction” for purposes of such resale by permitting a broker to insert bid and ask quotations for the security in an alternative trading system, provided that the broker has published bona fide bid and ask quotations for such security on each of the last 12 business days. Resale of Restricted Debt Securities
The SEC has eliminated the manner-of-sale requirements for affiliate resale of debt securities, including non-participatory preferred stock (which has debt-like characteristics) and asset-backed securities. The SEC also raised the volume limitations for the resale of debt securities to permit resale in an amount that does not exceed ten percent of a tranche (or a class with respect to non-participatory preferred stock), together with all sales of securities of the same tranche sold for the selling debt security holder within a three-month period. Form 144 Filing Triggers
The sales thresholds for filing Form 144 have been increased from 500 shares or $10,000 worth of securities to 5,000 shares or $50,000. Codified
Securities Act of 1933
Congress enacted the Securities Act of 1933 , in the aftermath of the stock market crash of 1929 and during the ensuing Great Depression...
, which regulates the resale of restricted securities and securities held by affiliate
Affiliate
An affiliate is a commercial entity with a relationship with a peer or a larger entity.- Corporate structure :A corporation may be referred to as an affiliate of another when it is related to it but not strictly controlled by it, as with a subsidiary relationship, or when it is desired to avoid...
s. The amendments to Rule 144, among other things:
- Shorten the holding period for affiliate and non-affiliate holders of restricted securities of SEC-reporting companies to six months, subject to certain conditions
- Permit unlimited resale by non-affiliate holders of restricted securities by complying only with the current public information condition for resale of restricted securities issued by SEC reporting companies made after the six-month holding period; and without complying with any Rule 144 conditions for resale of restricted securities issued by both SEC reporting and non-reporting companies made after a one-year holding period.
- permit resale of equity securities by affiliates that meet certain conditions through riskless principal transactions and brokers’ transactions in which the broker has published bid and asked quotations for the security in an alternative trading system.
- Eliminate the manner of sale conditions and ease the volume limitations for resale of debt securities by affiliates.
- Increase the thresholds that trigger the Form 144 filing requirement to 5,000 shares or $50,000.
The SEC did not adopt previously proposed provisions relating to the tolling of holding periods in connection with hedging transactions.
The amendments will become effective on February 15, 2008, and will apply to securities acquired before or after that date. Background
Rule 144 regulates the resale of “restricted securities”1 and “control securities,”2 by establishing certain conditions that must be satisfied in order for the resale to be exempt from the Securities Act registration requirements pursuant to Section 4(1) of the Securities Act—a safe harbor
Safe harbor
The term safe harbor has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.-Legal definition:...
from “underwriter” status for the selling security holder.
The conditions include the following:
- There must be adequate current public information available about the issuer;
- If the securities being sold are restricted securities, the security holder must have held the security for a specified holding period;
- The resale must be within specified sales volume limitations;
- The resale must comply with the manner of sale requirements of the rule; and
- The selling security holder must file Form 144 with the SEC if the amount of securities being sold exceeds specified thresholds.
Amendments to Conditions for Resale of Restricted Securities
Restricted Securities of SEC-Reporting Companies. The SEC has reduced the holding period under Rule 144 for restricted securities of SEC-reporting companies held by both affiliates and non-affiliates from one year to six months. Affiliate holders of reporting company securities may now resell their restricted securities after six months, subject to the other Rule 144 requirements. Non-affiliate holders of reporting company securities (who have also not been affiliates during the prior three months) may now resell their restricted securities held between six months and one year subject only to Rule 144’s current public information requirement. Any such resale by a non-affiliate after one year will be exempt from all Rule 144 requirements.Restricted Securities of Non-Reporting Companies. There is still a one-year holding period for affiliate and non-affiliate holders of restricted securities in non-reporting companies under amended Rule 144. After the one-year holding period, non-affiliates may now resell their restricted securities without having to comply with any other Rule 144 requirements; affiliates seeking to resell their restricted securities must still meet all Rule 144 requirements.
The manner of sale requirements of Rule 144 require securities to be sold in “brokers’ transactions” or in transactions directly with a “market maker
Market maker
A market maker is a company, or an individual, that quotes both a buy and a sell price in a financial instrument or commodity held in inventory, hoping to make a profit on the bid-offer spread, or turn. From a market microstructure theory standpoint, market makers are net sellers of an option to be...
.”
The rule includes restrictions on (1) soliciting or arranging for the solicitation of orders to buy the securities in anticipation of, or in connection with, the Rule 144 transaction or (2) making any payment in connection with the offer or sale of the securities to any person other than the broker
Broker
A broker is a party that arranges transactions between a buyer and a seller, and gets a commission when the deal is executed. A broker who also acts as a seller or as a buyer becomes a principal party to the deal...
who executes the order to sell the securities.
The SEC amended these rules to also permit the resale of restricted equity securities by affiliates through riskless principal transactions in which trades are executed at the same price, exclusive of any explicitly disclosed markup or markdown, commission equivalent or other fee, and the rules for a self-regulatory organization
Self-regulatory organization
A self-regulatory organization is an organization that exercises some degree of regulatory authority over an industry or profession. The regulatory authority could be applied in addition to some form of government regulation, or it could fill the vacuum of an absence of government oversight and...
permit the transaction to be reported as riskless.3 The amended rule also expands the definition of a “brokers’ transaction” for purposes of such resale by permitting a broker to insert bid and ask quotations for the security in an alternative trading system, provided that the broker has published bona fide bid and ask quotations for such security on each of the last 12 business days. Resale of Restricted Debt Securities
The SEC has eliminated the manner-of-sale requirements for affiliate resale of debt securities, including non-participatory preferred stock (which has debt-like characteristics) and asset-backed securities. The SEC also raised the volume limitations for the resale of debt securities to permit resale in an amount that does not exceed ten percent of a tranche (or a class with respect to non-participatory preferred stock), together with all sales of securities of the same tranche sold for the selling debt security holder within a three-month period. Form 144 Filing Triggers
The sales thresholds for filing Form 144 have been increased from 500 shares or $10,000 worth of securities to 5,000 shares or $50,000. Codified
SEC Staff Interpretations
The SEC has also codified various staff interpretations relating to Rule 144, including the following:- Stating that securities acquired by accredited investorInvestorAn investor is a party that makes an investment into one or more categories of assets --- equity, debt securities, real estate, currency, commodity, derivatives such as put and call options, etc...
s pursuant to Section 4(6) of the Securities Act are considered restricted securities - Permitting tacking of holding periods when a company reorganizes into a holding companyHolding companyA holding company is a company or firm that owns other companies' outstanding stock. It usually refers to a company which does not produce goods or services itself; rather, its purpose is to own shares of other companies. Holding companies allow the reduction of risk for the owners and can allow...
structure - Permitting tacking of holding periods for conversions and exchanges of securities
- Deeming the acquisition dates for securities acquired pursuant to the cashless exercise of options and warrants as the dates the options or warrants were acquired
- Permitting a pledgee of restricted securities to sell the pledged securities without having to aggregate the sale with sales by other pledgees from the same pledgor (as long as there is no concerted action by those pledgees), for purposes of the Rule 144 volume limitation condition
- Permitting the Form 144 representations required from security holders relying on Exchange Act Rule 10b5-1 to be made as of the date the holder adopted a trading plan or gave trading instructions
- Confirming the unavailability of Rule 144 for the resale of securities by reporting and non-reporting firms