Most shareholders holding restricted stock in OTC Markets companies use Rule 144 to clear and deposit that stock. However, there are some circumstances when Rule 144 is not available.
Rule 144 is Not Available for Current Shell Companies
If an Issuer is currently a shell company, Rule 144 cannot be used to clear and sell restricted stock. There are no exceptions to this if the public company is a shell today, but there are exceptions for former shells.
Former Shells May Only Use Rule 144 Under the Evergreen Rule
Under the so called “Evergreen Rule” a former shell company may use Rule 144 to clear restricted stock only under the following circumstances:
- The Issuer is a fully reporting SEC filer and subject to the reporting requirements of the Securities Exchange Act of 1934; and
- The SEC filer is current in all of its filings (i.e. not marked “delinquent”); and
- The Issuer has filed “Form 10” Information, including audited financials (which is already factored into its fully reporting SEC filer status); and
- One (1) Year has elapsed since the Issuer emerged from shell status. This date is often found in a “Super 8-K” but could be confirmed using other SEC filings.
Section 4(a)(1) May Be Used if the Rule 144 Evergreen Rule is Not Met
So the Evergreen Rule says that former shells can only use Rule 144 if they are fully reporting SEC filers with audited financials and it has been more than Twelve (12) Months since the company ceased to be a shell. What if the issuer is non reporting?
Current and Former Shells May use Section 4(a)(1) Instead of Rule 144
In those cases where the former shell is a non reporting Pink Sheet, or a so called “voluntary filer” which is technically not subject to the Exchange Act, an experienced securities lawyer can use a Section 4(a)(1) legal opinion (also known as a Section 4(1) or simply a 4-1 opinion).
Section 4(a)(1) Opinions Require a Minimum Two Year Holding Period
Unlike Rule 144, which requires a Six Month holding period for SEC filers and a One Year holding period for non reporting companies, Section 4(a)(1) requires a Two Year holding period.
Shareholder Must Not Be an Issuer, Underwriter, or Dealer Under Section 4(a)(1)
Section 4(a)(1) opinions cannot be drafted if the Shareholder is an Issuer, Underwriter or a Dealer. What does this mean? It basically deals with Affiliate Status and whether or not a Shareholder is a Control Person. Another way to put this is that an experienced securities attorney will not draft a Section 4(a)(1) legal opinion for a Control Person or Affiliate of the Issuer.
Rule 144 and Section 4(a)(1) Lawyer Matt Stout Drafts Legal Opinions
Shareholders in OTC Markets companies can contact Rule 144 and Section 4-1 attorney Matt Stout for a no cost review of their certificate and supporting documentation at (410) 429-7076 or firstname.lastname@example.org.