• SEC Temporarily Relaxes Restrictions on Issuer Repurchases
  • October 1, 2008 | Authors: William S. Anderson; Charles H. Still; Michael S. Telle
  • Law Firm: Bracewell & Giuliani LLP - Houston Office
  • On September 19, 2008, the Securities and Exchange Commission issued an emergency order temporarily suspending the timing restrictions and significantly increasing the volume limitation for issuer repurchases under Rule 10b-18 of the Securities Exchange Act of 1934.  The SEC also took temporary emergency action to prohibit short selling in 799 financial companies.  The actions are effective immediately and will expire at the end of the day on Thursday, October 2, 2008 unless extended by the SEC.

    Rule 10b-18 provides issuers with a safe harbor to effect repurchases of their securities, provided that certain conditions are met, without running afoul of the anti-manipulation provisions of the Exchange Act.  The temporary changes to Rule 10b-18 are intended to help issuers mitigate sudden and unexplained declines in the prices of their securities, which may have no fundamental underlying basis, and to provide additional liquidity to investors during a time of market volatility.

    The temporary changes to Rule 10b-18 are summarized below:

    Condition

    Rule Prior to

    Emergency Order

    Rule Following

    Emergency Order

    Timing of repurchase
    (10b-18(b)(2)(i)-(iii))

    Repurchases may not be made as the opening trade or within the last 10 minutes (or for less actively traded companies, during the last 30 minutes) of the regular trading session

    Repurchases may be made at any time during the day

    Volume of repurchase
    (10b-18(b)(4))

    Shares repurchased on any single day may not exceed 25% of the average daily trading volume (as calculated over the four calendar weeks preceding the week in which the purchase occurs), subject to an exception for block trades

    The number of shares repurchased may not exceed 100% of the average daily trading volume

    Use of brokerage firm
    (10b-18(b)(1))

    Issuer may use only one brokerage firm on any given day to effect any solicited repurchases

    No change

    Pricing of repurchase
    (10b-18(b)(3))

    Repurchases generally are restricted to a price that does not exceed the highest independent bid or the last independent transaction price, whichever is higher

    No change

    Issuers effecting repurchases remain subject to the prohibitions on insider trading and may not repurchase securities while in possession of material non-public information.

    A copy of the SEC's emergency order concerning Rule 10b-18 is available at http://www.sec.gov/rules/other/2008/34-58588.pdf and the SEC's emergency order concerning short selling is available at http://www.sec.gov/rules/other/2008/34-58592.pdf.