Rule 144 changes in effect Feb 15
Rule 144 treats affiliates of the issuer much more strictly than it treats non-affiliates. The Rule applies to the sale of restricted (unregistered) stock by a non-affiliate. However, the Rule is far more imposing on affiliates; the Rule governs any sale of stock (both restricted and registered shares) by an affiliate of the issuer, and the Rule applies to affiliates indefinitely. Loosely defined, affiliates are control persons and other insiders, but we'll take a closer look at the definition of affiliates below.
With respect to sales of stock by an affiliate, Rule 144 imposes significant sales volume restrictions upon non-affiliates selling restricted stock, and upon affiliates selling either restricted or registered stock. Rule 144's volume restrictions are commonly referred to as "dribble out" provisions. We can distill the volume limitations as follows:
*Non-affiliates are not subject to any volume restrictions after holding a reporting issuer's stock for six months, or a non-reporting issuer's stock for one year.
*Affiliates are subject to volume restrictions as long as they are affiliates.
The dribble out provisions limit the amount of stock that can be sold in any 90-day period. The volume restriction dictates that sales in a 90-day period cannot be more than the greater of the following:
*1% of the issuer's total outstanding shares, or,
*The average reported weekly volume in an issuer's stock for the four weeks immediately preceding the filing of Form 144 (if the issuer trades on a stock exchange or NASDAQ--OTC and pink sheet companies can only be sold using 1% rule).
As an example, assume ABC Corp., listed on NASDAQ, has 10,000,000 shares outstanding and traded 25,000 shares in each of the 4 weeks prior to the filing of a potential seller's Form 144. The dribble out provisions allow a seller to sell the greater of 1% of the total shares outstanding (in this case, 100,000 shares), or the average weekly volume for the prior four weeks (in this case, 25,000 shares). Thus, the seller can sell the greater number, up to 100,000 shares in the 90-day period.
Who Is an Affiliate?
Because Rule 144 applies differently to affiliates and non-affiliates, it is important to know who is an affiliate. The Rule dictates that affiliate status attaches to any person who directly or indirectly controls, is controlled by, or is under common control with the issuer. Rule 405 defines "control" as the "power to direct . . . the management and policies" of an issuer, whether by ownership or position. Thus, directors, officers, and upper-level managers are clearly affiliates. Owners of 5% or more are typically considered affiliates, but be careful--while the 5% figure is widely relied upon, you won't find the 5% figure in any rule or statute on the subject.