Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 104 -- Stabilizing and Other Activities in Connection with an Offering

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1. Unlawful Activity. It shall be unlawful for any person, directly or indirectly, to stabilize, to effect any syndicate covering transaction, or to impose a penalty bid, in connection with an offering of any security, in contravention of the provisions of this section. No stabilizing shall be effected at a price that the person stabilizing knows or has reason to know is in contravention of this section, or is the result of activity that is fraudulent, manipulative, or deceptive under the securities laws, or any rule or regulation thereunder.
   
   
2. Purpose. Stabilizing is prohibited except for the purpose of preventing or retarding a decline in the market price of a security.
   
   
3. Priority. To the extent permitted or required by the market where stabilizing occurs, any person stabilizing shall grant priority to any independent bid at the same price irrespective of the size of such independent bid at the time that it is entered.
   
   
4. Control of Stabilizing. No sole distributor or syndicate or group stabilizing the price of a security or any member or members of such syndicate or group shall maintain more than one stabilizing bid in any one market at the same price at the same time.
   
   
5. At-the-Market Offerings. Stabilizing is prohibited in an at-the-market offering.
   
   
6. Stabilizing Levels.
   
   
   1. Maximum stabilizing bid. Notwithstanding the other provisions of this paragraph (f), no stabilizing shall be made at a price higher than the lower of the offering price or the stabilizing bid for the security in the principal market (or, if the principal market is closed, the stabilizing bid in the principal market at its previous close).
      
      
   2. Initiating stabilizing.
      
      
      1. Initiating stabilizing when the principal market is open. After the opening of quotations for the security in the principal market, stabilizing may be initiated in any market at a price no higher than the last independent transaction price for the security in the principal market if the security has traded in the principal market on the day stabilizing is initiated or on the most recent prior day of trading in the principal market and the current asked price in the principal market is equal to or greater than the last independent transaction price. If both conditions of the preceding sentence are not satisfied, stabilizing may be initiated in any market after the opening of quotations in the principal market at a price no higher than the highest current independent bid for the security in the principal market.
         
         
      2. Initiating stabilizing when the principal market is closed.
         
         
         1. When the principal market for the security is closed, but immediately before the opening of quotations for the security in the market where stabilizing will be initiated, stabilizing may be initiated at a price no higher than the lower of:
            
            
            1. The price at which stabilizing could have been initiated in the principal market for the security at its previous close; or
               
               
            2. The most recent price at which an independent transaction in the security has been effected in any market since the close of the principal market, if the person stabilizing knows or has reason to know of such transaction.
               
               
         2. When the principal market for the security is closed, but after the opening of quotations in the market where stabilizing will be initiated, stabilizing may be initiated at a price no higher than the lower of:
            
            
            1. The price at which stabilization could have been initiated in the principal market for the security at its previous close; or
               
               
            2. The last independent transaction price for the security in that market if the security has traded in that market on the day stabilizing is initiated or on the last preceding business day and the current asked price in that market is equal to or greater than the last independent transaction price. If both conditions of the preceding sentence are not satisfied, under this paragraph (f)(2)(ii)(B)(2), stabilizing may be initiated at a price no higher than the highest current independent bid for the security in that market.
               
               
      3. Initiating stabilizing when there is no market for the security or before the offering price is determined. If no bona fide market for the security being distributed exists at the time stabilizing is initiated, no stabilizing shall be initiated at a price in excess of the offering price. If stabilizing is initiated before the offering price is determined, then stabilizing may be continued after determination of the offering price at the price at which stabilizing then could be initiated.
         
         
   3. Maintaining or carrying over a stabilizing bid. A stabilizing bid initiated pursuant to paragraph (f)(2) of this section, which has not been discontinued, may be maintained, or carried over into another market, irrespective of changes in the independent bids or transaction prices for the security.
      
      
   4. Increasing or reducing a stabilizing bid. A stabilizing bid may be increased to a price no higher than the highest current independent bid for the security in the principal market if the principal market is open, or, if the principal market is closed, to a price no higher than the highest independent bid in the principal market at the previous close thereof. A stabilizing bid may be reduced, or carried over into another market at a reduced price, irrespective of changes in the independent bids or transaction prices for the security. If stabilizing is discontinued, it shall not be resumed at a price higher than the price at which stabilizing then could be initiated.
      
      
   5. Initiating, maintaining, or adjusting a stabilizing bid to reflect the current exchange rate. If a stabilizing bid is expressed in a currency other than the currency of the principal market for the security, such bid may be initiated, maintained, or adjusted to reflect the current exchange rate, consistent with the provisions of this section. If, in initiating, maintaining, or adjusting a stabilizing bid pursuant to this paragraph (f)(5), the bid would be at or below the midpoint between two trading differentials, such stabilizing bid shall be adjusted downward to the lower differential.
      
      
   6. Adjustments to stabilizing bid. If a security goes ex-dividend, ex- rights, or ex-distribution, the stabilizing bid shall be reduced by an amount equal to the value of the dividend, right, or distribution. If, in reducing a stabilizing bid pursuant to this paragraph (f)(6), the bid would be at or below the midpoint between two trading differentials, such stabilizing bid shall be adjusted downward to the lower differential.
      
      
   7. Stabilizing of components. When two or more securities are being offered as a unit, the component securities shall not be stabilized at prices the sum of which exceeds the then permissible stabilizing price for the unit.
      
      
   8. Special prices. Any stabilizing price that otherwise meets the requirements of this section need not be adjusted to reflect special prices available to any group or class of persons (including employees or holders of warrants or rights).
      
      
7. Offerings with no U.S. Stabilizing Activities
   
   
   1. Stabilizing to facilitate an offering of a security in the United States shall not be deemed to be in violation of this section if all of the following conditions are satisfied:
      
      
      1. No stabilizing is made in the United States;
         
         
      2. Stabilizing outside the United States is made in a jurisdiction with statutory or regulatory provisions governing stabilizing that are comparable to the provisions of this section; and
         
         
      3. No stabilizing is made at a price above the offering price in the United States, except as permitted by paragraph (f)(5) of this section.
         
         
   2. For purposes of this paragraph (g), the Commission by rule, regulation, or order may determine whether a foreign statute or regulation is comparable to this section considering, among other things, whether such foreign statute or regulation: specifies appropriate purposes for which stabilizing is permitted; provides for disclosure and control of stabilizing activities; places limitations on stabilizing levels; requires appropriate recordkeeping; provides other protections comparable to the provisions of this section; and whether procedures exist to enable the Commission to obtain information concerning any foreign stabilizing transactions.
      
      
8. Disclosure and Notification
   
   
   1. Any person displaying or transmitting a bid that such person knows is for the purpose of stabilizing shall provide prior notice to the market on which such stabilizing will be effected, and shall disclose its purpose to the person with whom the bid is entered.
      
      
   2. Any person effecting a syndicate covering transaction or imposing a penalty bid shall provide prior notice to the self-regulatory organization with direct authority over the principal market in the United States for the security for which the syndicate covering transaction is effected or the penalty bid is imposed.
      
      
   3. Any person subject to this section who sells to, or purchases for the account of, any person any security where the price of such security may be or has been stabilized, shall send to the purchaser at or before the completion of the transaction, a prospectus, offering circular, confirmation, or other document containing a statement similar to that comprising the statement provided for in Item 502(d) [Editor's note: It appears this should be Item 502(b)] of Regulation S-B or Item 502(d) [Editor's note: It appears this should be Item 502(b)] of Regulation S-K.
      
      
9. Recordkeeping Requirements. A person subject to this section shall keep the information and make the notification required by Rule 17a-2 under the Securities Exchange Act of 1934.
   
   
10. Excepted Securities. The provisions of this section shall not apply to:
    
    
    1. Exempted Securities. "Exempted securities," as defined in section 3(a)(12) of the Exchange Act; or
       
       
    2. Transactions of Rule 144A securities. Transactions in securities eligible for resale under Rule 144A(d)(3) under the Securities Act of 1933, if such securities are offered or sold in the United States solely to:
       
       
       1. Qualified institutional buyers, as defined in Rule 144A(a)(1) under the Securities Act of 1933, or to offerees or purchasers that the seller and any person acting on behalf of the seller reasonably believes are qualified institutional buyers, in a transaction exempt from registration under section 4(2) of the Securities Act or Rule 144A or Rule 501 through Rule 508 under such Act; or
          
          
       2. Persons not deemed to be "U.S. persons" for purposes of Rule 902(o)(2) or Rule 902(o)(7) under the Securities Act of 1933 [Editor's note: It appears this should be Rule 902(k)(2) and Rule 902(k)(7).], during a distribution qualifying under paragraph (j)(2)(i) of this section.
          
          
11. Exemptive Authority. Upon written application or upon its own motion, the Commission may grant an exemption from the provisions of this section, either unconditionally or on specified terms and conditions, to any transaction or class of transactions, or to any security or class of securities.
    
    

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