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Pre-IPO: Going Public



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After the IPO, are there any restrictions on how soon I can sell shares of my company's stock?
Yes. You can expect SEC and contractual restrictions on your freedom to sell your company stock immediately after the public offering. The exact number of days until you can sell depends on the registration exemption your company used to issue the pre-IPO company options or restricted stock, whether any form S-8 registration statement is now filed with the SEC for the stock-plan shares, and the terms of the lockup period.

Rule 701 And Lockup Controls

If your company has recently gone public and did not file an S-8 registration form for the stock-plan shares, you need to adhere to the waiting period and other requirements for resales under Rule 701(g). This federal securities-law registration exemption, used for private-company stock plans, allows post-IPO resales without the need to follow certain requirements of Rule 144. If you are not subject to a lockup or are no longer an employee, the holding period rules can be different under Rule 144.

Therefore, 90 days after your company becomes subject to the ongoing SEC reporting requirements, which is usually the public offering date, you can sell your shares (unless you are further restricted by the lockup agreement). Almost all companies try to fit their pre-IPO option and stock grants into Rule 701. Otherwise, when Rule 701 does not apply, the company may need to make a rescission offer, as Google did before its IPO. (See its SEC filing amendment and later SEC settlement, which explain what happened.)

In addition, even when your company registers the stock-plan shares on Form S-8, you need to hold your option shares or restricted stock for the duration of any contractual lockup agreement with the underwriters. Regardless of when your company went public, your sales will be limited by your company's policy for preventing insider trading.

Finally, if you are an affiliate of your company for the purposes of securities laws, you are generally required to sell your shares in accordance with the volume restrictions and notice requirements of SEC Rule 144.

Alert: Your broker must undertake due diligence before relying on Rule 701 to permit the resale under Rule 144. Therefore, plan to contact your broker at least six weeks before your planned sale, unless your company has its own process and broker that you can use.
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