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Definition of Securities
§ 2(a)(1)
SEC v. W.J. Howey Co. (Howey test):
1. investment of cash or noncash consideration (e.g., goods and services)
2. common enterprise: horizontal/vertical
3. expectation of profit (not for one’s consumption)
4. effort of others (dominant managerial effort; minimal control by investors)
Note: family resemblance; maturity of less than 9 months is not securities (§ 3(a)
(3))
Agency cost; collective action obstacle
Form S-1
1. detailed
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2. for 1) non-reporting issuer; and 2) small/unseasoned reporting issuer
Form S-3
1. Eligibility: large, seasoned issuers that have been reporting for at least 1
year; if offering new equity securities, “public float” of at least $75M. If
below $75M, 1) offering for cash; 2) offering amount during past 12 months
not exceeding 1/3 of market value; and 3) common stock listed on a national
stock exchange.
2. permits incorporating by reference info to other periodic reports
3. for 1) seasoned issuer; and 2) WKSI (well-known seasoned issuer):
automatic shelf registration (Rule 430B)
Shelf registration (Rule 415): permitting registration of securities offering made
on a continuous or delayed basis for later sale, if undertaking to file post-effective
amendment disclosing any fundamental change of info in original registration
statement (Item 512(a) of Regulation S-K)
Withdrawal: Rule 477; if converted to private offering, Rule 155(b)(c) provides
safe harbor against integration (due to sale to nonaccredited investors (private-
>public)/general solicitation (public -> private)) by 30-day waiting
Regulation M: permitting bidding/purchasing/soliciting to bid during restricted
period by distribution participants (Rule 101) or for purpose of preventing decline
in market price/stabilization -> NOT deemed manipulation or deception; NOT
violating bar to purchase during distribution (Rule 104), etc.
Gun-jumping: violation of §5:
1. (a) no (1) sale; (2) delivery of securities, until registration is effective
2. (b)(1) no prospectus unless complying §10; (2) no delivery unless
accompanied by prospectus
3. (c) no offer unless registration filed w/SEC
Pre-filing period (safe harbors focused on “offer”)
1. Rule 135: Notice of proposed registered offerings – legend + limited
content (NO underwriters & price)
2. Rule 137: publications or distributions of Research Reports by Brokers
or Dealers that are not participating in and Issuer’s registered distribution of
securities
3. Rule 138: publications or distributions of Research Reports by Brokers
or Dealers about securities other than those they are distributing
4. Rule 139: publications or distributions of Research Reports by Brokers
or Dealers distributing securities
5. Rule 163: free writing prospectus (FWP) – legend + filing (any time by
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WKSI, even not filed yet)
6. Rule 163A: preregistration communication (made more than 30 days
before filing)
7. Rule 168: regular communication (by reporting issuers) – factual
business info + forward-looking info regularly released previously in the
ordinary course of business
8. Rule 169: regular communication (by new issuers) - factual business
info regularly released previously in the ordinary course of business
Waiting period (safe harbors focused on “prospectus”, yes or no are both OK)
1. permissible: oral offer (subject to antifraud provision); preliminary/red-
herring prospectus (Rule 430:prospectus for use prior to effective date, no
price and related matters); prospectus in a registration statement at the time of
effectiveness (Rule 430A: registration statement covering an offering of
securities for cash); summary prospectus (Rule 431: relic for reporting
companies of 36 months) – deemed “section 10 prospectus” for purpose of
5(b)(1)
2. Rule 134: announcement after filing: identifying statement/tombstone
ad. -> NOT prospectus; 134(b) legend; may indicating investors’ interest
(textbook P170) : not prospectus in 2(a)(10) and not “free writing
prospectus” under Rule 405, so no violation of 5(b)(1)
3. Rules 135, 168, 169
4. Rule 164: FWP deemed complying §10(b) if meeting Rule 433
conditions; immaterial or unintentional failure is ok but need to be good faith
and show reasonable effort to comply
5. Rule 433: (b) for non-reporting/unseasoned issuers, must accompanied
by preliminary prospectus (ok if hyperlinked); (c) consistent info + legend; (d)
filed w/SEC; (d)(8) road show – requiring filing of presentation of equity
offering by non-reporting issuers, unless bona fide electronic copy posted on
website without restriction by means of graphic communication (therefore a
prospectus); (e)(2) hyperlink; (f) media
Post-effective period
1. Rule 153: for B&D confirmation, access = delivery
2. Rule 172: for confirmation/notice of allocation
3. Rule 173: final prospectus/notice of registration within 2 BDs after sale
4. Rules 134, 164/433, 168, 169
Exemption Transactions
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Integration: (safe harbor of 6-month; meaning, treating several offering as a
single one)
1. Rule 147(b)(2) – intrastate offering (5-factor test)
2. Rule 152 – private placement under §4(2) (including Rule 506 offering)
is NOT integrated with subsequent public offering
3. Rule 155(b)(c) -> 30-day cooling-off period
4. Rule 251(c) of Regulation A
5. Rule 502(a) of Regulation D -> 5-factor test; offshore offering
(Regulation S) is NOT integrated with domestic offerings!
Intrastate offerings - §3(a)(11)
1. by in-state issuer to in-state resident
2. NO limitation on offering amount, sophistication, frequency
3. Rule 147: (c) incorporation/principal business/doing business; (d) actual
principal residence; (e) “come to rest” safe harbor – resell within 9-month
from last sale shall be made to in-state residents + legend
Private placement - §4(2)
1. “fend for themselves” (SEC v. Ralston Purina Co.) – informed +
sophisticated (whether insider or not)
2. Rule 506: < 35 nonaccredited investors; sophistication
Small offering - §3(b)
1. Regulation A (Rules 251-264): note integration and aggregation
(1) < $5M during any continuous 12-month period
(2) non-reporting U.S. or Canadian issuer and not “bad boy” (Rule 262)
(3) simplified disclosure: filing + offering circular
(4) unaudited financial info is ok
(5) test the water before filing offering statement; change of intention (Rule
254)
2. Regulation D (non-exclusive safe harbor)
(1) Note to Rule 502(b)(1): disclosure to nonaccredited investors
(2) Rule 502(c): prohibiting general solicitation/advertising; ok if pre-
existing relationship (because of knowing sophistication and financial
circumstance of offerees) and Rule 135
(3) Rule 502(d): restricted securities, so can’t be resold without registration
or further exemption -> reasonable inquiry, disclosing restricted nature and
legend
(4) Rule 504: non-reporting issuer; < $1M (note aggregation – safe harbor
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of 12-month; meaning, accumulatively calculating of amount in different
offerings in 12-month period)
(5) Rule 505: “bad boy” disqualification (Rule 262); < $5M (note
aggregation); < 35 nonaccredited investors
(6) Rule 508(a): incomplete compliance, must be insignificant
3. Rule 701: non-reporting companies offering employee stock
compensation plan; < $1M or 15% outstanding securities/asset during any
consecutive 12-month period (meaning, not integrated but could be
aggregated)
§11: joint and several liabilities re false registration statement, except for UWs (e)
and outside directors (f)
- Defendant to prove culpability, reliance and causation
- Defendant: signatories (e.g., issuer, CEO, CFO), directors, UWs, experts
- Plaintiff: tracing requirement (hard if bought in aftermarket); limited to actual
purchaser
- §27A/E§21E: safe harbor for forward-looking statement (NOT applicable to IPO)
- Free writing: if not becoming a part of prospectus -> beyond the reach of §11
- Due diligence defense: reasonable investigation and ground to believe
1. expertised portion:§11(b)(3)(B), (C)
2. non-expertised info: §11(b)(3)(A)
3. Rule 176: sliding scale of reasonableness -> in shelf registration, UW should
have a reservoir of knowledge of issuer by 1) keeping abreast of analyst
reports and 2) hiring law firm as counsel for continuous DD (In re
WorldCom, Inc.)
4. Escott v. BarChris Construction
5. DD task assigned? Still bound by the assignee’s failure!
- Reliance: §11(a) -> to be proved by defendant that plaintiff knew; OR to be
proved by plaintiff if buying after 1 year from effectiveness
- Loss causation: negative causation defense (Akerman v. Oryx)
- Damages: §11(e) -> value/sales price minus purchase price (capped at public
offering price)
§12(a)(1): in violation of §5
- Seller: Pinter v. Dahl, including who 1) passes title; and 2) solicits sales, except
for not for his own financial interest; NOT including aiders and abettors
§12(a)(2)
- Gustafson v. Alloyd Co.: applied only to public offering -> note that certain
exempt transactions have public characteristics, e.g., Rule 505 offering
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- Seller: same as §12(a)(1), including retail broker-dealer and selling shareholders
(but not issuer)
- Culpability: reasonable care defense
- Reliance: NO need; but note Rule 159 (based on info known at the time of sale)
- Loss causation: §12(b) -> affirmative defense, similar to §11
- Scienter: NO need
§15: joint and several liability of control person -> good faith defense
§17: NOT an implied private right of action! v. Rule 10b-5
Forms
Schedules:
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