It has become routine for companies to mark their stock certificates with legends that set forth restrictions on transferability. Generally, legends on restricted shares state that the securities represented by the stock certificate are not registered under the Securities Act of 1933. as amended (“Securities Act”). Restricted legends provide notice that the restricted shares represented by the certificate are not covered by an effective registration statement under the Securities Act. As such, the restricted shares may not be resold unless they are registered or an exemption from registration is available for the resale. This blog post addresses the most common questions we receive about selling restricted shares.
How Do Shares Become Restricted Anyway?
Restricted securities are frequently issued in private placement offerings under Rule 504, 505 and 506 of Regulation D. Restricted securities are also securities held by a company’s officers, directors and control persons. A Restricted Legend looks like this:
“The common shares represented by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state of the United States or in any other jurisdiction. The Securities represented hereby may not be offered, sold or transferred in the absence of an effective registration statement for the Securities under applicable securities laws unless offered, sold or transferred pursuant to an available exemption from the registration requirements of those laws.”
When restricted shares become eligible for resale under Rule 144, shareholders may remove the legend from their share certificates by sending the certificate to the company’s transfer agent. Once the legend is removed, the shares can be sold publicly through a stockbroker. Issuers and transfer agents require that the holder obtain a legal opinion from a securities lawyer as to the tradability of the shares.
In SEC Release No. 33-8869, the SEC stated with respect to restricted securities that it did not object if issuers remove legends restricted securities held by non-affiliates after all of the applicable conditions in Rule 144 are satisfied. The SEC acknowledged that the decision of whether to remove a legend from restricted securities is a matter solely in the discretion of the issuer of the securities, and disputes about the removal of legends “are governed by state law or contractual agreements, rather than federal law.” When there is a question about removal of a restrictive legend, issuers seek the advice of a securities attorney as to tradability of the shares.
How Long Do I Have To Hold Restricted Shares?
The holding period of restricted shares depends upon how the shares were acquired. Generally, restricted securities held by non-affiliates are subject to a 6 or 12 month holding period under Rule 144. If the issuer is a shell or former shell company then more stringent rules apply to resales.
If the Issuer is subject to the SEC’s reporting requirements, Rule 144 provides for a 6 month holding period. Issuers should be cautious about removing legends from shares certificates representing restricted securities after only 6 months for SEC reporting issuers unless a prior or specific future public sale is contemplated. In order for the 6 month holding period to be applicable to a particular resale of shares, the company must have been subject to the SEC’s reporting requirements for a period of at least 90 days. Additionally, the issuer must have filed all SEC reports required during the preceding 12 months or such shorter period that they were required to file. If the issuer becomes delinquent in its SEC Reporting obligations, Rule 144 is unavailable or if the issuer does not have current public information available at the time of the sale, the Rule 144 holding period is increased to 12 months.
Holders of shares of non-reporting companies not subject to the SEC’s reporting requirements must hold their shares for a period of 12 months.
For a company that has at any time been a shell company, the holding period becomes 12 months after the date that the issuer files Form 10 information with the SEC. Anyone seeking to remove the legend from restricted shares should proceed cautiously with the assistance of a qualified securities attorney.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton Florida, (561) 416-8956, by email at firstname.lastname@example.org or visit www.gopublic101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855