SEC Rule 10b-18 provides issuers with a safe harbor from liability for market manipulation under Sections 9(a)(2) and 10(b) of the Exchange Act and Rule 10b-5 under the Exchange Act when issuers bid for or repurchase their common stock in the market in accordance with the Rule’s manner, timing, price and volume conditions. Each of the conditions of Rule 10b-18 must be satisfied on each day that a repurchase is made.
Rule 10b-18
The material portions of Rule 10b-18 are as follows:
Definition. A “Rule 10b-18 purchase” is generally defined as a purchase or any bid or limit order of an issuer’s common stock by or for the issuer or any of the issuer’s affiliated purchasers.
To be able to rely on Rule 10b-18 in make repurchases, the following four (4) conditions must be met.
- Time of Purchase. The Rule restricts issuers from making repurchases that constitute the opening transaction in the security on a trading day, or that occur during the last 30 minutes before the scheduled close of trading. However, the limitations on purchases at the close vary depending on the average daily trading volume (“ADTV”) and public float. Issuers with more liquid securities (i.e. issuers with an ADTV of $1 mil-lion or more and a public float value of $150 million or more) would be restricted from bidding for or purchasing their securities during any of the following periods: (1) in the 10 minutes before the scheduled close of the regular trading session in the principal market for the security; (2) the 10 minutes before the scheduled close of the regular trading session in the market where the purchase is made; and (3) after the termination of the period in which last sales prices are reported in the consolidated system.
- Price of Purchases. The purchase price cannot exceed the higher of the highest independent bid or the last independent transaction price.
- Volume of Purchases. The Rule limits the amount of securities an issuer may repurchase on the market on a single day to 25% of the four-week average daily trading volume in its shares (that is, the average daily trading volume during the four calendar weeks prior to the week in which the 10b-18 purchase is to be made). However, issuers are permitted to make one block purchase of its common stock per week outside of the volume restrictions. Issuers have to include block purchases in applying the 25% vol-ume limitation. However, issuers would also be permitted to include block purchases in calculating the ADTV for their securities, thereby increasing the amount of stock able to be purchased within the safe harbor. The Rule defines a “block” as a quantity of stock that (1) has a purchase price of $200,000 or more, (2) is at least 5,000 shares and has a purchase price of at least $50,000, or (3) is at least 20 round lots of the security and totals 150% or more of the ADTV of that security. As an alternative to the 25% vol-ume limitation, issuers are allowed purchase up to a daily aggregate amount of 500 shares regardless of the ADTV of the security. Thus, an issuer’s purchases, on any single day, may not exceed the higher of 25% of the ADTV for the issuer’s security or a daily aggregate amount of 500 shares.
- Manner. The Rule requires an issuer to use only one broker or dealer (per day) to bid for or purchase its common stock.
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