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RULE 144内容简介 (详细英文规定加简单中文翻译)

(2009-05-12 10:49:31)
标签:

rule

144

限制性股票

锁定期

股票

分类: 投资客

 RULE 144 内容简介:(中午是我随便翻译的,翻译内容并不一定准确,只是为了大家粗略了解RULE 144的梗概。实际应用中,还应以英文的法律条款规定为准)

 

Rule 144 提供了限制性股票在公开市场出售而免于受到法律约束的方法。限制性股票持有人持有股票在一年之内,不能公开出售;在两年以上,可以自由出售;在一年和两年之间,需要满足一定的条件才能出售(limited selling under Rule 144 restrictions)。

 

这些条件包括:

1、持有期限制。持有须满一年,从股票款全部交清之日算起。

2、发行人(公司)限制。发行人必须充分及时的披露信息,如月报、年报的定期披露。

3、数量限制。出售的股票数量不高于发行人发行的所有可流通股票的1%,或股票在过去四周的周平均交易量。

4、必须在经纪人或者做市商那里按照正常交易程序交易。交易时须签署“Seller's Letter”确认此交易满足Rule 144条款。

5、出售后须向SEC报送FORM 144,但三个月内出售数量在500股或出售额在10000美元以下的除外。

 

    除了满足以上五条,限制型股票持有人还必须把股票证书上的限制性的标志去掉(get the restrictive legend removed from the certificate)才能进行交易。去掉这个标志需要得到公司的允许,由stock transfer agent 办理。这个过程一般需要四周或更多。其间发生的争议,SEC不会干预,由各州法律管辖(The removal of a legend is a matter solely in the discretion of the issuer of the securities.)。

 

以下为更为详细的英文规定:

 

 

       Rule 144 provides a fairly clear way to sell restricted stock in the public market without running afoul of the law. It offers "safe harbor" protection to sellers who follow the five main requirements. Essentially, these are:

       1. Holding period. You must own restricted stock for at least one year before you can begin to sell it in the market. The clock starts running when the stock is fully paid for.

       2. Current information. The issuing company must provide adequate current financial information. If it reports to the SEC, it must be current with required periodic reports for example, its 10-K or 10-Q. If it is not a reporting company, similar information needs to be publicly available.

       3. Volume limits. Only a limited number of shares may be sold during any three-month period. You can sell the larger amount of either: 1% of the total outstanding shares of the class being sold or the average reported weekly trading volume for the last four weeks, if the class is listed on a stock exchange or Nasdaq. (Stocks quoted on the OTC Bulletin Board and Pink Sheets use only the 1% measure.)

       4. Ordinary brokerage transactions. Sales must be handled as routine trading transactions with a broker or a market maker. And you'll need to sign a Seller's Letter to the broker confirming that the sale complies with Rule 144.

       5. SEC filing. When you place your sell order, you must notify the SEC by sending in a completed Form 144. If the sale doesn't take place within three months, you have to file an amended Form 144. No filing is required if your sales for any three-month period total less than 500 shares or $10,000.

 

Legend Must Come Off

 

       Even if you've satisfied Rule 144, you still can't resell restricted stock into the public market until you get the restrictive legend removed from the certificate. And only the stock transfer agent can do that.

       The transfer agent is usually a specialized outside firm appointed by a company to maintain stock records. It issues and cancels certificates; deals with problems like lost, stolen or destroyed certificates; removes outdated legends; and handles other such chores.

       But the transfer agent's authority is limited. It can't erase a restrictive legend until the issuer of the stock says it's OK to do so. Issuers usually require an attorney's opinion letter before they give the green light for this. The letter is often written by issuer's counsel, but the seller frequently must pay for it.

 

Removal Takes Time

 

       Because of the paperwork required, the number of parties involved, and the logistics entailed, it takes some time to have the legend removed. The period varies. It usually depends largely on the transfer agent, the issuing company and the attorney who reviews the matter and writes the opinion letter.

       We find the entire process often takes three to four weeks, and sometimes significantly longer.

 

Restrictions End in 2 Years

 

       Rule 144 restrictions end after you've owned the restricted stock for two years provided that you haven't been an affiliate for at least three months. After the two-year point, you may sell the stock in the public market without further concern for the rule, although you still must have the legend removed first.

       You can put Rule 144 in a nutshell this way:

       Year 1 = no selling

       Year 2 = limited selling under Rule 144 restrictions

       Year 3 = sell freely

       [Ed. note: Although control stock is outside the scope of this article, note an important point here. If you're a company affiliate, your stock is always considered control stock and is always subject to most of the Rule 144 restrictions. That's true no matter how you acquired it, or how much time has passed even if it's registered stock that you bought in the public market.]

 

http://sec.gov/investor/pubs/rule144.htm

 

Rule 144: Selling Restricted and Control Securities

When you acquire restricted securities or hold control securities, you must find an exemption from the SEC's registration requirements to sell them in the marketplace. Rule 144 allows public resale of restricted and control securities if a number of conditions are met. This overview tells you what you need to know about selling your restricted or control securities. It also describes how to have a restrictive legend removed.

 

What Are Restricted and Control Securities?

Restricted securities are securities acquired in unregistered, private sales from the issuer or from an affiliate of the issuer. Investors typically receive restricted securities through private placement offerings, Regulation D offerings, employee stock benefit plans, as compensation for professional services, or in exchange for providing "seed money" or start-up capital to the company. Rule 144(a)(3) identifies what sales produce restricted securities.

Control securities are those held by an affiliate of the issuing company. An affiliate is a person, such as a director or large shareholder, in a relationship of control with the issuer. Control means the power to direct the management and policies of the company in question, whether through the ownership of voting securities, by contract, or otherwise. If you buy securities from a controlling person or "affiliate," you take restricted securities, even if they were not restricted in the affiliate's hands.

If you acquire restricted securities, you almost always will receive a certificate stamped with a "restricted" legend. The legend indicates that the securities may not be resold in the marketplace unless they are registered with the SEC or are exempt from the registration requirements. The certificates of control securities are usually not stamped with a legend.

 

What Are the Conditions of Rule 144?

If you want to sell your restricted or control securities to the public, you can follow the conditions set forth in Rule 144. The rule is not the exclusive means for selling restricted or control securities, but provides a "safe harbor" exemption to sellers. The rule's five conditions are summarized below:

1. Holding Period. Before you may sell restricted securities in the marketplace, you must hold them for at least one year. The one-year period holding period begins when the securities were bought and fully paid for. The holding period only applies to restricted securities. Because securities acquired in the public market are not restricted, there is no holding period for an affiliate who purchases securities of the issuer in the marketplace. But an affiliate's resale is subject to the other conditions of the rule.

Additional securities purchased from the issuer do not affect the holding period of previously purchased securities of the same class. If you purchased restricted securities from another non-affiliate, you can tack on that non-affiliate's holding period to your holding period. For gifts made by an affiliate, the holding period begins when the affiliate acquired the securities and not on the date of the gift. In the case of a stock option, such as one an employee receives, the holding period always begins as of the date the option is exercised and not the date it is granted.

2. Adequate Current Information. There must be adequate current information about the issuer of the securities before the sale can be made. This generally means the issuer has complied with the periodic reporting requirements of the Securities Exchange Act of 1934.

3. Trading Volume Formula. After the one-year holding period, the number of shares you may sell during any three-month period can't exceed the greater of 1% of the outstanding shares of the same class being sold, or if the class is listed on a stock exchange or quoted on Nasdaq, the greater of 1% or the average reported weekly trading volume during the four weeks preceding the filing a notice of the sale on Form 144. Over-the-counter stocks, including those quoted on the OTC Bulletin Board and the Pink Sheets, can only be sold using the 1% measurement.

4. Ordinary Brokerage Transactions. The sales must be handled in all respects as routine trading transactions, and brokers may not receive more than a normal commission. Neither the seller nor the broker can solicit orders to buy the securities.

5. Filing Notice With the SEC. At the time you place your order, you must file a notice with the SEC on Form 144 if the sale involves more than 500 shares or the aggregate dollar amount is greater than $10,000 in any three-month period. The sale must take place within three months of filing the Form and, if the securities have not been sold, you must file an amended notice.

If you are not an affiliate of the issuer and have held restricted securities for two years, you can sell them without regard to the above conditions.

 

Can the Securities Be Sold Publicly If the Conditions of Rule 144 Have Been Met?

Even if you have met the conditions of Rule 144, you can't sell your restricted securities to the public until you've gotten the legend removed from the certificate. Only a transfer agent can remove a restrictive legend. But the transfer agent won't remove the legend unless you've obtained the consent of the issuer梪sually in the form of an opinion letter from the issuer's counsel梩hat the restricted legend can be removed. Unless this happens, the transfer agent doesn't have the authority to remove the legend and execute the trade in the marketplace.

To begin the process, an investor should contact the company that issued the securities, or the transfer agent of the company's securities, to ask about the procedures for removing a legend. Since removing the legend can be a complicated process, if you're considering buying or selling a restricted security, it would be wise for you to consult an attorney who specializes in securities law.

 

What If a Dispute Arises Over Whether I Can Remove the Legend?

If a dispute arises about whether a restricted legend can be removed, the SEC will not intervene. The removal of a legend is a matter solely in the discretion of the issuer of the securities. State law, not federal law, covers disputes about the removal of legends. Thus, the SEC will not take action in any decision or dispute about removing a restrictive legend.

http://www.sec.gov/investor/pubs/rule144.htm

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