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ISBN 10: 1642424099
ISBN 13: 978-1642424096
Author: Thomas Lee Hazen
This Hornbook is a comprehensive secondary source for the study of Securities Regulation. It also can serve as a lawyer’s desk book. Coverage includes definition of “security,” registration and disclosure obligations under the Securities Act of 1933, exemptions from registration, reporting obligations under the Securities Exchange Act of 1934, the proxy rules, tender offer regulation, and civil liabilities. The book treats broker-dealer regulation, market regulation, and the administrative role of the SEC, as well as proxy rules, insider trading, the Investment Company Act and the Investment Advisers Act. This new edition reflects recent SEC rulemaking, including important amendments to exemptions from registration, new broker-dealer obligations, as well as recent Supreme Court and many other case law developments.
The Law of Securities Regulatio 8th Table of contents:
Chapter 1. The Basic Coverage of the Securities Laws
§ 1.0 Overview; Sources of Securities Law
§ 1.0[1] Overview
§ 1.0[2] Sources of Federal Securities Law
§ 1.0[2][A] The Federal Securities Laws
§ 1.0[2][B] Where to Find the Law
§ 1.0[2][C] The Securities Bar
§ 1.1 Overview of Securities Markets and Their Operation
§ 1.1[1] Securities Markets and Regulation in Context
§ 1.1[2] The Securities Markets
§ 1.1[3] The Securities Industry
§ 1.1[4] The Regulatory Framework
§ 1.2 History, Scope, and Coverage of Federal and State Securities Regulatory Schemes
§ 1.2[1] The Antecedents of Securities Regulation in the United States
§ 1.2[2] The Regulatory Era Begins—State Securities Laws
§ 1.2[3] The New Deal and Federal Regulation
§ 1.2[3][A] The Securities Act of 1933
§ 1.2[3][B] The Securities Exchange Act of 1934
§ 1.2[3][C] The Securities and Exchange Commission
§ 1.2[3][D] Other Federal Securities Laws
§ 1.2[3][E] The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
§ 1.2[3][F] Federal Preemption of State Law
§ 1.3 The Securities and Exchange Commission; Structure of the SEC
§ 1.3[1] The SEC Commissioners
§ 1.3[2] The Divisions of the Commission
§ 1.4 The Work of The SEC
§ 1.4[1] Overview of SEC Authority
§ 1.4[2] SEC Rulemaking
§ 1.4[2][A] Delegated Rulemaking
§ 1.4[2][B] Interpretative Rulemaking
§ 1.4[2][C] Safe Harbor Rules
§ 1.4[3] SEC Interpretive Releases; Staff Legal Bulletins
§ 1.4[4] SEC No Action Letters
§ 1.4[5] SEC Oversight and Regulatory Authority
§ 1.4[6] SEC Enforcement Authority
§ 1.5 The SEC’s Subject-Matter Jurisdiction ; the CFTC-SEC Division of Regulatory Authority; Financial Services
§ 1.5[1] Jurisdictional Concerns
§ 1.5[2] Index Participations and Other Hybrids as Securities or Commodities
§ 1.5[3] Registration of Exchanges and Clearing Agents
§ 1.5[4] Financial Services
§ 1.6 Definition of “Security”
§ 1.6[1] Statutory Definition of “Security”
§ 1.6[2] Judicial Interpretation of “Investment Contract”—the Howey Test
§ 1.6[2][A] The Investment of Money
§ 1.6[2][B] In a Common Enterprise
§ 1.6[2][C] With an Expectation of Profit
§ 1.6[2][D] From the Efforts of Others
§ 1.6[3] Alternative Interpretation of “Investment Contract”—Risk Capital Analysis
§ 1.6[4] Leasing Programs as Securities
§ 1.6[5] Franchises and Distributorships—Pyramid Schemes as Securities
§ 1.6[6] Commodities Futures and Managed Accounts as Securities
§ 1.6[7] Employee Benefit Plans as Securities
§ 1.6[8] Variable Annuities as Securities
§ 1.6[9] Real Estate Interests as Securities
§ 1.6[10] Partnership Interests as Securities
§ 1.6[11] Limited Liability Company Interests as Securities
§ 1.6[12] Beneficial Interests in Business Trusts and Real Estate Investment Trusts as Securities
§ 1.6[13] Stock as a Security
§ 1.6[14] Notes as Securities
§ 1.6[15] Certificates of Deposit as Securities
§ 1.7 Derivative Investments: Stock Options, Index Options, Futures, and Swaps
§ 1.7[1] Primer on Options and Futures
§ 1.7[2] Swaps and Other Derivatives
§ 1.7[3] Security Futures Products
§ 1.7[4] Over-the-Counter Derivatives
Chapter 2. Registration Requirements of the Securities Act of 1933
§ 2.1 Overview of 1933 Act Registration
§ 2.2 The Underwriting Process
§ 2.2[1] Direct Offerings
§ 2.2[2] Nature and Varieties of Underwriting Arrangements
§ 2.2[2][A] Strict Underwriting
§ 2.2[2][B] Firm-Commitment Underwriting
§ 2.2[2][C] Best Efforts Underwriting
§ 2.2[2][D] Underwriting by Auction
§ 2.2[3] Underwriters’ Compensation; FINRA Review
§ 2.3 The Operation of Section 5 of the Securities Act of 1933
§ 2.3[1] Operation of Section 5—Overview
§ 2.3[2] Operation of Section 5—the Basic Prohibitions of the Pre-Filing, Waiting, and Post-Effective Periods
§ 2.3[3] Impact of Technology and the Internet on the Operation of Section 5
§ 2.3[3][A] Online Offerings
§ 2.3[3][B] Electronic Delivery of “Written” Materials
§ 2.3[3][C] Electronic Road Shows
§ 2.4 The Pre-Filing Period
§ 2.4[1] Basic Prohibitions of the Pre-Filing Period
§ 2.4[2] What Is an Offer to Sell?: Generating a Buying Interest
§ 2.4[3] Safe Harbor for Permissible Pre-Filing Announcements—SEC Rule 135
§ 2.4[4] Testing the Waters; Pre-Filing Research Reports; and Confidential Filings for Emerging Growth Companies
§ 2.4[5] The Impact of 1934 Act Reporting Requirements and Other Disclosure Obligations on the Pre-Filing Quiet Period
§ 2.5 The Waiting Period
§ 2.5[1] Prohibitions During the Waiting Period
§ 2.5[2] Permissible Offers to Sell During the Waiting Period
§ 2.5[2][A] Oral Offers to Sell
§ 2.5[2][B] The “Tombstone Advertisement” and Other Identifying Statements
§ 2.5[2][C] The Preliminary (“Red Herring”) Prospectus
§ 2.5[2][D] The Summary Prospectus
§ 2.5[2][E] The Free Writing Prospectus
§ 2.5[2][F] Safe Harbors for Factual Information and Forward-Looking Statements by 1934 Act Reporting Companies
§ 2.5[3] Limited Statements After Public Announcement of Tender Offer or Business Combination
§ 2.5[4] Broker-Dealer Recommendations
§ 2.5[5] Broker-Dealer Standard of Conduct with Regard to Prospectus Delivery Requirements
§ 2.6 The Post-Effective Period
§ 2.6[1] Prohibitions During the Post-Effective Period
§ 2.6[2] Supplementary Sales Literature (“Free Writing”)
§ 2.6[3] Updating the Registration Statement and Prospectus During the Post-Effective Period
§ 2.6[4] Exemption from Prospectus Delivery Requirements for Dealer Transactions
§ 2.6[5] Broker-Dealer Compliance with Prospectus Delivery Requirements
§ 2.6[6] Broker-Dealer Recommendations
Chapter 3. The 1933 Act Registration Process and Disclosure
§ 3.1 The Decision to Go Public
§ 3.1[1] Process of Going Public—Overview
§ 3.1[2] Advantages of Going Public
§ 3.1[3] Consequences, Disadvantages, and Costs of Going Public
§ 3.1[4] Contingent Public Offerings; “All or None” and “Part or None” Offerings
§ 3.2 Preparation of the Registration Statement
§ 3.3 Information Required in the Registration Statement and the Statutory Prospectus
§ 3.4 Registration Forms and Integrated Disclosure
§ 3.4[1] Overview of Disclosure Requirements
§ 3.4[2] Materiality
§ 3.4[3] Integrating 1933 Act Disclosure with the 1934 Act
§ 3.4[4] 1933 Act Registration Forms
§ 3.4[4][A] One Size Fits All Long-Form Disclosure— Form S-1
§ 3.4[4][B] Form S-3 for Seasoned Issuers
§ 3.4[4][C] Smaller Public Companies and Emerging Growth Companies
§ 3.4[4][D] Offerings to Employees
§ 3.4[4][E] Securities Issued in Connection with a Merger or Other Corporate Reorganization—Form S-4
§ 3.4[5] Disclosure Guides and Procedures—Regulations S-K and S-X
§ 3.4[5][A] Regulations S-K and S-X Distinguished
§ 3.4[6] EDGAR
§ 3.5 SEC Statutory Procedures—Section 8
§ 3.5[1] Statutory Waiting Period
§ 3.5[2] Acceleration of the Effective Date
§ 3.5[3] SEC Refusal Orders
§ 3.5[4] SEC Investigations and Stop Orders
§ 3.5[5] Withdrawal of the Registration Statement
§ 3.6 Processing the Registration Statement After Filing
§ 3.6[1] Law Versus Lore: What Really Happens—Informal Procedures
§ 3.6[2] SEC Review Practices
§ 3.6[3] SEC Policies on Acceleration Requests
§ 3.7 Frequent Deficiencies in Registration Statements and Other Disclosures ; the Plain English Requirement
§ 3.7[1] Frequent Deficiencies
§ 3.7[2] Plain English Requirements—Overview
§ 3.8 Common Disclosure Problems —Dilution of the Public’s Investment, Business Risks, Transactions with Controlling Persons, and Projections
§ 3.8[1] Overview
§ 3.8[2] Dilution of the Public’s Investment, Business Risks
§ 3.8[3] Transactions of Controlling Persons, Management Stability and Integrity, Secondary Sales
§ 3.8[4] Projections and Soft Information
§ 3.8[5] Statutory Safe Harbor for Forward-Looking Statements
§ 3.8[6] The Bespeaks Caution Doctrine
§ 3.8[7] Management’s Discussion and Analysis
§ 3.8[8] Duties to Correct and Update
§ 3.9 Presentation of Disclosure; Plain English
§ 3.10 Delayed and Continuous Offerings—Shelf Registrations
Chapter 4. Exemptions From 1933 Act Registration
§ 4.1 Securities and Transactions Exempt from the 1933 Act’s Registration Requirements—Sections 3 and 4 of the 1933 Act
§ 4.1[1] Overview of Exemptions
§ 4.1[2] Exempt Securities: Section 3 of the 1933 Act
§ 4.1[3] Exempt Transactions: Section 4 of the 1933 Act
§ 4.1[4] General Exemptive Authority: Section 28 of the 1933 Act: Exemption by SEC Rule or Regulation
§ 4.1[5] Applicability of State Securities Laws
§ 4.2 Securities of Governments, Banks, Insurance Companies, and Qualified Pension Plans—Section 3(a)(2)
§ 4.2[1] Exemption for Government and Municipal Securities
§ 4.2[1][A] Scope of Exemption for Government and Municipal Securities
§ 4.2[2] Exemption of Certain Bank Securities
§ 4.2[3] Exemption for Pension Plans
§ 4.3 Short Term Commercial Paper—Section 3(a)(3)
§ 4.4 Securities of Eleemosynary Organizations—Section 3(a)(4)
§ 4.5 Securities of Building and Loan Associations, Farmers Cooperatives and the Like—Section 3(a)(5)
§ 4.6 Certificates Issued Under the Bankruptcy Act by Receivers and Trustees—Section 3(a)(7)
§ 4.7 Insurance Policies and Annuity Contracts—Section 3(a)(8)
§ 4.8 Securities Exchanged Exclusively with Existing Security Holders— Section 3(a)(9)
§ 4.9 Securities Issued in Judicially or Administratively Approved Reorganizations—Section 3(a)(10)
§ 4.10 The Exemption for Purely Intrastate Offerings—Section 3(a)(11); SEC Rules 147; 147A
§ 4.10[1] Intrastate Offerings—the Statutory Exemption— Section 3(a)(11)
§ 4.10[2] Intrastate Offerings—the SEC’s “Safe Harbor”—Rule 147
§ 4.10[3] Intrastate Offerings—Rule 147A
§ 4.11 Qualified Exemptions for Small Issues; Sections 3(b), 4(a)(5), and 3(c)
§ 4.11[1] Limited Offerings—Section 3(b)
§ 4.11[2] Limited Offerings Solely to Accredited Investors— Section 4(a)(5)
§ 4.12 Regulation A—Qualified Exemption for Offerings up to $75,000,000 per Year
§ 4.12[1] Regulation A
§ 4.12[2] Issuers Eligible for Regulation A
§ 4.12[3] Regulation A—Disqualification Provisions
§ 4.12[4] Regulation A—Limitations on Dollar Amount of the Offering
§ 4.12[5] Integration with Other Offerings
§ 4.12[6] Regulation A—Filing and Notification Requirements
§ 4.12[7] Regulation A—Testing the Waters
§ 4.13 Crowdfunding; Rule 701 —Exemption for Employee Compensation Plans of Issuers Not Subject to Securities Exchange Act Periodic Reporting Requirements
§ 4.13[1] The Crowdfunding Exemption
§ 4.13[2] Background and Overview of Rule 701
§ 4.13[3] Issuer Qualification for Rule 701
§ 4.13[4] Rule 701—Qualifying Compensation Plans
§ 4.13[5] Limitation on Dollar Amount of Rule 701 Offerings
§ 4.13[6] Integration Doctrine Not Applicable to Rule 701 Offerings
§ 4.13[7] Restrictions on Resale Following Rule 701 Offerings
§ 4.13[8] “Going Public” Through Rule 701 Offerings
§ 4.14 Coordination of the Small Issue and Limited Offering Exemptions: Regulation D—an Overview
§ 4.15 Regulation D: Definitions, Conditions, and Filing Requirements—SEC Rules 501, 502, and 503
§ 4.15[1] Overview of Regulation D
§ 4.15[2] Regulation D—Definitions
§ 4.15[3] Conditions of Regulation D Offerings
§ 4.16 Regulation D’s Exemption for Small Issues of $10,000,000 or Less—SEC Rule 504
§ 4.17 Former SEC Rule 505
§ 4.18 The Statutory Exemption for Limited Offerings to “Accredited Investors”—Section 4(a)(5)
§ 4.19 Exemption for Issuer Transactions Not Involving a Public Offering (“The Private Placement Exemption”)—Section 4(a)(2)
§ 4.19[1] Scope of the Section 4(a)(2) Exemption
§ 4.20 Safe Harbor for Private Placements Under Section 4(a)(2)—SEC Rule 506
§ 4.21 An Overview of Transactions by Persons Other than Issuers, Underwriters, and Dealers : Section 4(a)(1); Unsolicited Brokers’ Transactions—Section 4(a)(4)
§ 4.21[1] Section 4(a)(1)—the Exemption for Nonprofessionals—Basic Definitions
§ 4.21[2] Section 4(a)(4)—Unsolicited Brokers’ Transactions
§ 4.22 Who Is an Underwriter?—Section 2(a)(11)
§ 4.22[1] The Underwriter Concept—Section 2(a)(11) and Applicable SEC Rules
§ 4.22[2] Case Law Developments—Inadvertent Underwriters
§ 4.22[3] Investment Intent—The Holding Period
§ 4.22[4] Sales on Behalf of Controlling Persons
§ 4.23 The Safe Harbor Exemption for Secondary Transactions—SEC Rule 144
§ 4.24 The Section “4(1½)” Exemption for Downstream Sales; SEC Rule 144A; Section 4(a)(7) and Resales to Accredited Investors
§ 4.24[1] Basis for the Section 4(1½) Exemption
§ 4.24[2] Elements of the Section 4(1½) Exemption
§ 4.24[3] The Safe Harbor for Certain Sales to Qualified Institutional Buyers—SEC Rule 144A
§ 4.24[4] Section 4(a)(7) and Resales to Accredited Investors
§ 4.25 The Exemption for Certain Dealers’ Transactions— Section 4(a)(3)
§ 4.26 Exemption for Certain Offshore Transactions in Securities of United States Issuers—Regulation S
§ 4.27 The SEC’s General Exemptive Authority—Section 28
§ 4.28 Integration of Transactions
§ 4.28[1] Overview of the Integration Doctrine
§ 4.28[2] The Integration Doctrine Explained and Defined
§ 4.28[3] Safe Harbors for Avoiding Integration
§ 4.28[4] Integrating Nonpublic and Public Offerings
§ 4.28[4][A] Successive Offerings
§ 4.28[4][B] Discontinued Offerings
Chapter 5. The Theory of Sale: Corporate Recapitalizations, Reorganizations, and Mergers Under The 1933 Act
§ 5.1 Section 2(a)(3)’s Definition of Sale; 1933 Act Application to Unconventional Transactions ; Gifts, Bonus Plans, and Pledges; Effect of State Law
§ 5.1[1] Statutory Definition of Sale
§ 5.1[2] Gifts and Bonus Plans
§ 5.1[3] Employee Compensation Plans
§ 5.1[4] Convertible Securities
§ 5.1[5] Pledges
§ 5.1[6] Installment Sales
§ 5.2 Corporate Recapitalizations, Reorganizations, and Mergers Under the 1933 Act: Rule 145
§ 5.2[1] Reorganizations Exempt from 1933 Act Registration
§ 5.2[2] Rule 145
§ 5.2[3] Rule 145 and Downstream Sales
§ 5.3 Section 2(a)(3)’s Definition of Sale : Warrants, Employee Stock Plans, Stock Dividends, and Spin-Offs Under the 1933 Act
§ 5.3[1] Warrants, Conversion Rights, Options, and Security Futures Products
§ 5.3[2] Stock Dividends
§ 5.3[3] Exchanges of Securities
§ 5.3[4] Spin-Off Transactions
§ 5.4 Periodic Payments; the Investment Decision Doctrine
Chapter 6 IPO PRACTICES: MANIPULATION, STABILIZATION AND HOT ISSUES
§ 6.1 Manipulation: An Overview
§ 6.2 Manipulation and Price Stabilization Involving Public Offerings
§ 6.2[1] Manipulation in Public Offerings
§ 6.2[2] Regulation M—Scope of Rule 101
§ 6.2[3] Regulation M—Exclusions and Exemptions from Rule 101’s Prohibitions
§ 6.2[4] Regulation M—Scope of Rule 102
§ 6.2[5] Regulation M—Scope of Permissible Stabilizing Activity
§ 6.2[6] Regulation M—Manipulative Short Sales, Rule 105
§ 6.3 Aftermarket Activities, IPO Practices, Hot Issues, Workout Markets, and Controlled Markets
Chapter 7. Remedies for Violations of the Securities Act of 1933 (and Other Consequences of Deficient Registration Statements)
§ 7.1 Consequences of Deficient Registration Statements —Administrative Action, Criminal Sanctions, SEC Injunctive Relief, and Private Remedies
§ 7.2 Civil Liability for Failure to Comply with 1933 Act Section 5—Section 12(a)(1)’s Private Remedy
§ 7.2[1] Basic Elements of a Section 12(a)(1) Claim
§ 7.2[2] Who Is Liable Under Section 12(a)(1)?
§ 7.3 Liability for Misstatements and Omissions in the Registration Statement —the Private Remedy Under Section 11 of the 1933 Act
§ 7.3[1] Who Can Sue; Nature of Suit Under Section 11
§ 7.3[2] Permissible Defendants in a Section 11 Suit
§ 7.3[3] Absence of Reliance Requirement in Section 11 Actions
§ 7.3[4] Tracing Securities to the Registration Statement
§ 7.3[5] Measure of Damages Under Section 11
§ 7.3[6] Statute of Limitations
§ 7.3[7] Defenses to Section 11 Claims
§ 7.4 Defenses Under 1933 Act Section 11(b)—Due Diligence, Reliance on Experts, and Reasonable Investigation
§ 7.4[1] “Whistleblowing” Defense
§ 7.4[2] Due Diligence Defenses
§ 7.5 Damages in Actions Under 1933 Act Section 11
§ 7.6 1933 Act Section 12(a)(2)—Liability for Material Misstatements or Omissions by Sellers of Securities
§ 7.6[1] Elements of Section 12(a)(2) Claim
§ 7.6[2] Judicially Imposed Limits on Section 12(a)(2)—the Public Offering or Batch Offering Limitation
§ 7.7 The 1933 Act’s General Prohibition on Material Misstatements and Omissions—1933 Act Section 17
§ 7.8 Multiple Defendants—Joint and Several Liability; Liability of Controlling Persons
§ 7.9 Aiding and Abetting
§ 7.10 Special Rules and Procedures for Securities Class Actions
§ 7.10[1] Private Securities Litigation Reform Act of 1995—Overview
§ 7.10[2] Securities Litigation Uniform Standards Act of 1998— Preemption
Chapter 8. STATE SECURITIES LAWS (“BLUE SKY” LAWS)
§ 8.1 State Blue Sky Laws: Their Origins, Purpose, and Basic Coverage
Chapter 9. SECURITIES EXCHANGE ACT OF 1934—REGISTRATION AND REPORTING REQUIREMENTS FOR PUBLICLY TRADED COMPANIES
§ 9.1 The Securities Exchange Act of 1934—Overview
§ 9.2 Registration of Securities Under the Securities Exchange Act of 1934
§ 9.2[1] Registration Requirements
§ 9.2[2] Exemptions from 1934 Act Registration Requirements
§ 9.2[3] SEC’s General Exemptive Authority
§ 9.2[4] Overview of Relevant Sarbanes-Oxley and Dodd-Frank Provisions
§ 9.3 Annual, Periodic, and Continuous Reporting Requirements for Public Companies
§ 9.3[1] CEO and CFO Certification of SEC Filings
§ 9.3[2] Periodic Review of Company Filings
§ 9.3[3] Executive Officer Loans Prohibited
§ 9.3[4] Forfeiture of Certain Bonuses and Profits
§ 9.3[5] Overview of Dodd-Frank’s Enhancements
§ 9.4 Disclosure Guidelines—Regulation S–K
§ 9.4[1] Background of Regulation S–K
§ 9.4[2] Overview and Structure of Regulation S–K
§ 9.5 Accounting and Auditing Requirements
§ 9.5[1] Accounting Requirements
§ 9.5[1][A] Financial Matters Generally; Accounting Standards
§ 9.5[1][B] Non-GAAP Financial Measures
§ 9.5[2] Audit Requirements
§ 9.6 Corporate Governance and the Federal Securities Laws ; Codes of Ethics, Compensation Limitations, and Listing Standards
§ 9.6[1] Overview of Corporate Governance Provisions
§ 9.6[2] Codes of Ethics
§ 9.6[3] Audit Committees; Financial Experts
§ 9.6[4] Executive and Director Compensation; Prohibition on Certain Loans to Executives; Extraordinary Payments
§ 9.7 Controls on Attorney Practice
§ 9.7[1] Regulating Administrative Practice of Attorneys; the Sarbanes-Oxley Lawyer Conduct Rules
§ 9.7[2] SEC Rule 102
§ 9.7[3] Role of Lawyers in SEC Practice
§ 9.7[4] Increasing Attorney Accountability—Sarbanes-Oxley Section 307 and Its Background
§ 9.7[5] The SEC Rules—Climbing the Corporate Ladder
Chapter 10. SHAREHOLDER SUFFRAGE—PROXY REGULATION
§ 10.1 Regulation of Shareholder Suffrage Under the 1934 Act —Section 14 and the Proxy Rules: Introduction; Regulation of Voting Rights
§ 10.1[1] Substantive Regulation of Voting Rights
§ 10.2 Full Disclosure in the Solicitation of Proxies
§ 10.2[1] Overview of Proxy Disclosure Requirements
§ 10.2[2] Proxy Solicitations: The Nature and Scope of Federal Proxy Regulation
§ 10.2[3] Proxy Solicitations: Required Disclosures
§ 10.3 Rule 14a–9 and the Implied Remedy for Material Misstatements and Omissions in Proxy Materials; Standing to Sue; Scienter Versus Negligence; Attorneys’ Fees
§ 10.3[1] The Implied Private Remedy for Material Misstatements in the Solicitation of Proxies
§ 10.3[2] Standing to Sue Under Rule 14a–9
§ 10.3[3] The Standard of Culpability Under Rule 14a–9: Negligence Versus Scienter
§ 10.3[4] Materiality Under Rule 14a–9
§ 10.3[5] Causation Under Rule 14a–9
§ 10.3[6] Relief Other than Damages in Actions Under Rule 14a–9
§ 10.4 Security Holders’ Access to the Proxy System: Right to Information; Shareholder List
§ 10.5 Security Holders’ Access to the Proxy System : Shareholder Proposals and the Shareholder Proposal Rule
§ 10.5[1] Grounds for Exclusion—Impropriety Under the Law of the State of Incorporation
§ 10.5[2] Grounds for Exclusion—Impropriety Under Law Generally
§ 10.5[3] Grounds for Exclusion—Materially Misleading Proposals, Proposals in Violation of the Proxy Rules, and Overly Vague Proposals
§ 10.5[4] Grounds for Exclusion—Personal Grievance
§ 10.5[5] Grounds for Exclusion—Not Significantly Related to the Issuer’s Business
§ 10.5[6] Grounds for Exclusion—Beyond the Issuer’s Power
§ 10.5[7] Grounds for Exclusion—Relating to Ordinary Business
§ 10.5[8] Grounds for Exclusion—Proposals Relating to Election to Office
§ 10.5[9] Grounds for Exclusion—Shareholder Proposals Contradicting Management Proposals
§ 10.5[10] Grounds for Exclusion—Mootness
§ 10.5[11] Grounds for Exclusion—Duplicative Proposals
§ 10.5[12] Grounds for Exclusion—Resubmissions
§ 10.5[13] Grounds for Exclusion—Relating to Dividends
§ 10.5[14] Consequences of Excluding Shareholder Proposals; Practical Considerations
§ 10.6 Disclosure in Lieu of Proxy Solicitation—Section 14(c)
§ 10.7 Securities Held in Street Name; Broker-Dealers and Federal Proxy Regulation—Section 14(b)
Chapter 11. TENDER OFFER AND TAKEOVER REGULATION
§ 11.1 Federal Regulation of Tender Offers and Other Control Transactions — the Williams Act; Terminology of Takeovers
§ 11.1[1] Terminology of Takeovers
§ 11.1[2] Overview of the Regulation Imposed by the Williams Act
§ 11.2 Filing Requirements for Acquisition of More than Five Percent of Equity Securities of an Exchange Act Reporting Company—Section 13(d)
§ 11.2[1] Section 13(d)’s “Early Warning” Filing Requirements
§ 11.2[2] Who Must File Under Section 13(d); Formation of a “Group”
§ 11.2[3] Exemptions from Section 13(d) Filing Requirements
§ 11.3 Reports of Institutional Investment Managers—Section 13(f)
§ 11.4 Definition of Tender Offer
§ 11.5 Filings, Disclosures and Procedures for Tender Offers—Section 14(d) and Regulation 14D
§ 11.5[1] Overview of Section 14(d)’s Filing and Disclosure Requirements
§ 11.5[1][A] Schedule TO
§ 11.5[2] Other Requirements Imposed by Regulation 14D
§ 11.5[2][A] Bidders’ Right of Access to Target Company’s Shareholders
§ 11.5[2][B] Shareholders’ Withdrawal of Tendered Securities
§ 11.5[2][C] Pro Rata Acceptance of Tendered Shares; Extensions of the Tender Offer
§ 11.5[2][D] The “All Holders” Rule
§ 11.5[2][E] The Equal Treatment and “Best Price” Requirements
§ 11.5[2][F] Prompt Payment for Shares Tendered
§ 11.5[2][G] Post Tender Offer Extensions of Time for Tendering
§ 11.5[2][H] Exemptions from Regulation 14D
§ 11.5[2][I] Summary of More Important Tender Offer Requirements
§ 11.5[2][J] Unregulated Mini-Tender Offers
§ 11.6 Section 14(e)—Antifraud and SEC Rulemaking
§ 11.7 Regulation 14E and Other Tender Offer Regulations
§ 11.7[1] Duration of Tender Offer
§ 11.7[2] Target Company’s Management Response to a Third-Party Tender Offer
§ 11.7[3] Insider Trading Prohibited
§ 11.7[4] Prohibition of Purchases During Tender Offer
§ 11.7[5] Short Tendering and Hedged Tendering Prohibited
§ 11.7[6] Two-Tiered Tender Offers Permitted
§ 11.7[7] Exemption for Closed-End Investment Companies
§ 11.7[8] Roll-Up Transactions
§ 11.7[9] Prohibition Against False Statements of Intent to Make Tender Offer
§ 11.7[10] Target’s Defensive Tactics Not Prohibited
§ 11.8 Arrangements Affecting Director Turnover in Connection with a Tender Offer—Section 14(f)
§ 11.9 Issuer Purchases of Its Own Stock—Section 13(e) and the Going Private Rule; Issuer Self-Tender Offers
§ 11.9[1] Issuer’s Share Repurchases
§ 11.9[1][A] Issuer Share Repurchases in Response to Someone Else’s Tender Offer
§ 11.9[1][B] Manipulation in Connection with Issuer Repurchases
§ 11.10 The Going Private Rule
§ 11.11 Issuer Self-Tender Offers
§ 11.12 Private Remedies Under the Williams Act—Remedies for Violations of Sections 13(d), 13(e), 14(d)
§ 11.13 Private Remedies Under the Williams Act—Is There an Implied Remedy Under Section 14(e)?
§ 11.14 State Regulation of Tender Offers
§ 11.14[1] State Tender Offer Regulation—Overview
§ 11.14[2] Scope of State Tender Offer Regulation
§ 11.14[3] First Generation State Tender Offer Statutes
§ 11.14[4] Second Generation State Takeover Statutes
§ 11.14[5] Third Generation Takeover Statutes
§ 11.15 Validity of State Tender Offer Statutes—the Commerce Clause and the Preemption Problem
§ 11.15[1] Preemption Challenges to State Takeover Statutes
§ 11.15[2] Commerce Clause Challenges to State Takeover Legislation
§ 11.15[2][A] The Early Cases
§ 11.15[2][B] The MITE Decision
§ 11.15[2][C] The CTS Decision
Chapter 12. MANIPULATION AND FRAUD—CIVIL LIABILITY; IMPLIED PRIVATE REMEDIES; SEC RULE 10b–5; FRAUD IN CONNECTION WITH THE PURCHASE OR SALE OF SECURITIES; IMPROPER TRADING ON NONPUBLIC MATERIAL INFORMATION
§ 12.1 Market Manipulation and Deceptive Practices—Sections 9, 10, 14(e), 15(c)
§ 12.1[1] Anti-Manipulation Rules—Overview
§ 12.1[2] Manipulative and Deceptive Acts and Practices—Section 10; Section 15(c)
§ 12.1[2][A] Overview of Anti-Manipulation Provisions
§ 12.1[2][B] The Section 10(b) Rules
§ 12.1[2][C] Anti-Manipulation Rules Under Section 15 of the Exchange Act
§ 12.1[3] Manipulation: Private Remedies
§ 12.1[3][A] Manipulation of Exchange Listed Securities—Section 9(f)’s Express Remedy
§ 12.1[3][B] Manipulation: Implied Remedies
§ 12.2 The Trend Limiting Implied Remedies
§ 12.3 Section 10(b) and the Evolution of the Implied Remedy Under SEC Rule 10b–5
§ 12.3[1] The Statutory Context
§ 12.3[2] History of Rule 10b–5
§ 12.3[3] The Development of the Implied Rule 10b–5 Remedy
§ 12.4 Rule 10b–5 Overview; Summary of the Principal Elements
§ 12.5 “In Connection with” the Purchase or Sale of Any Security
§ 12.6 “Purchase or Sale”—Identifying Purchases and Sales Under Rule 10b–5
§ 12.6[1] Definitions of Purchase and Sale
§ 12.6[2] Convertible Securities
§ 12.6[3] Pledges of Securities
§ 12.6[4] Gifts
§ 12.6[5] Periodic Payments; the Investment Decision Doctrine
§ 12.7 Standing to Sue Under SEC Rule 10b–5
§ 12.7[1] The Purchaser/Seller Requirement
§ 12.7[2] Standing to Seek Injunctive Relief
§ 12.7[3] Variations on the Purchaser/Seller Requirement
§ 12.8 Rule 10b–5 and the Scienter Requirement; Section 17(a) and Rule 14a–9 Compared
§ 12.8[1] Rule 10b–5’s Scienter Requirement; Section 17(a) Compared
§ 12.8[2] The Standard of Culpability Under the Proxy Rules
§ 12.8[3] Recklessness as Scienter
§ 12.8[4] Pleading and Proving Scienter
§ 12.9 Materiality in Rule 10b–5 Actions
§ 12.9[1] Materiality in Context
§ 12.9[2] Factual Nature of Materiality
§ 12.9[3] Materiality Defined and Explained
§ 12.9[4] Immateriality of Vague Statements; Sales Talk and “Puffing”; Statements of Opinion and Intent
§ 12.9[5] Materiality of Contingent Events
§ 12.9[6] Materiality of Merger Negotiations
§ 12.9[7] Predictions, Projections, and Other “Soft” Information; Management’s Discussion and Analysis
§ 12.9[7][A] Management Discussion & Analysis
§ 12.9[7][B] Safe Harbor for Forward-Looking Statements
§ 12.9[7][C] Analysts’ Opinions and Estimates
§ 12.9[8] The “Bespeaks Caution” Doctrine and Materiality
§ 12.9[9] Materiality in Financial Statements; Accounting Issues
§ 12.9[10] Duty to Correct or Update
§ 12.10 Reliance in Rule 10b–5 Actions; Fraud on the Market
§ 12.11 Causation in Rule 10b–5 Actions
§ 12.12 The Measure of Damages in Rule 10b–5 Actions
§ 12.13 Heightened Pleading Requirements in Fraud Actions
§ 12.14 Securities Class Actions; Litigation Reform
§ 12.14[1] Private Securities Litigation Reform Act of 1995
§ 12.14[1][A] Qualifications of Lead Plaintiff
§ 12.14[1][B] Selection of Lead Counsel
§ 12.14[1][C] Attorneys’ Fees
§ 12.14[1][D] Pretrial Motions and Pretrial Discovery
§ 12.14[1][E] Projections and Forward Looking Statements
§ 12.14[1][F] Enhanced Pleading Requirements Regarding Defendants’ State of Mind
§ 12.14[1][G] Security Deposit
§ 12.14[1][H] Review of Proceedings for Possible Sanctions
§ 12.14[1][I] Calculation of Damages
§ 12.14[2] Securities Litigation Uniform Standards Act of 1998
§ 12.15 Statutes of Limitations in Rule 10b–5 Actions
§ 12.16 Insider Trading and Rule 10b–5
§ 12.16[1] Overview
§ 12.16[2] The Basis of the Prohibition: The “Disclose or Abstain” Rule in Insider Trading Cases
§ 12.16[3] Causation in Insider Trading Cases—“Use” Versus “Possession”
§ 12.16[4] Refining Rule 10b–5’s Applicability to Outsider Trading—the Misappropriation Theory
§ 12.16[5] Insider Trading—Passing on Non-Public Information—Tipper and Tippee Liability
§ 12.16[6] Insider Trading in Advance of Tender Offers: Rule 14e–3
§ 12.16[7] Insider Trading: Private Remedies; Enhanced SEC Sanctions
§ 12.17 Liability for Material Misstatements and Omissions of Fact in Documents Filed with the SEC—Section 18(a) of the Securities Exchange Act of 1934
§ 12.18 Corporate Affirmative Disclosure Obligation and Accountability
§ 12.18[1] Affirmative Disclosure Obligations
§ 12.18[2] Responding to Market Rumors
§ 12.18[3] Adoption of and Entanglement with Statements by Third Parties
§ 12.18[4] SEC Regulation FD—Prohibition on Selective Disclosure
§ 12.18[5] Company Websites
§ 12.19 Rule 10b–5 and the Deception Requirement
§ 12.20 The Effect of Plaintiff’s Conduct on Implied Civil Liability; Due Diligence; In Pari Delicto
§ 12.21 Likely Absence of an Implied Remedy Under Section 17(a) of the 1933 Act
§ 12.22 Waiver of Claims; Voiding of Contracts in Violation of the Securities Laws
§ 12.23 Multiple Defendants in Actions Under the Securities Exchange Act of 1934 : Controlling Person Liability
§ 12.24 Multiple Defendants in Actions Under the 1934 Act : Aiding and Abetting Liability
§ 12.25 Multiple Defendants in Actions Under the Securities Exchange Act of 1934 : Joint and Several Liability; Proportional Liability
§ 12.26 Multiple Defendants in Actions Under the 1934 Act: Contribution and Indemnity
Chapter 13. INSIDER REPORTING AND SHORT-SWING TRADING—SECURITIES EXCHANGE ACT SECTION 16
§ 13.1 Reporting Requirements for Insiders and Their Transactions in Shares—Section 16(a)
§ 13.2 Disgorgement of Insider Short-Swing Profits—Section 16(b)
§ 13.3 Who Is Subject to Sections 16(a) and (b)? When Does Insider Status Attach?
§ 13.4 The Definition of “Purchase” and “Sale” and the Pragmatic Approach Under Section 16(b)
§ 13.5 Prohibitions Against Short Sales by Insiders—Section 16(c)
Chapter 14. MARKET REGULATION AND BROKER-DEALER REGULATION
§ 14.1 Market Regulation—an Overview
§ 14.2 How the Securities Markets Operate—an Overview
§ 14.3 Options Trading and Other Derivatives
§ 14.4 Market Regulation—History, Background, and Overview
§ 14.5 The Flash Crash; High Frequency Trading
§ 14.6 Antitrust Laws and Market Regulation
§ 14.7 State Regulation of Broker-Dealers—Limited Preemption
§ 14.8 Self-Regulation: FINRA and the National Exchanges
§ 14.9 Substance of Self Regulation
§ 14.10 Prohibited Practices Generally
§ 14.11 Wash Sales, Fictitious Trades, Matched Orders, Cross Trades, Marking the Close, and Painting the Tape
§ 14.12 Other Manipulative Practices : High Pressure Sales, Deceptive Recommendations, Excessive Commissions, Order Execution Obligations, Parking
§ 14.13 Broker-Dealer Registration: Definitions
§ 14.14 Broker-Dealer Registration Requirements
§ 14.15 Municipal Securities Dealers
§ 14.16 Regulation of Government Securities Dealers
§ 14.17 Broker-Dealer Net Capital and Reserve Requirements
§ 14.18 The Margin Rules and Extension of Credit for Securities Transactions
§ 14.19 Market Makers
§ 14.20 Trading on Stock Exchanges; the Specialist System and Its Demise
§ 14.21 Multiservice Brokerage Firms; Information Barriers; the Chinese Wall or Fire Wall
§ 14.22 Execution of Customer Orders
§ 14.23 Brokerage Commissions —Disclosure, Payment for Order Flow, Excessive Mark Ups, Relationship to Recommendations, Soft Dollar Arrangements
§ 14.24 Broker-Dealers and Fiduciary Obligations; the Shingle Theory
§ 14.25 A Broker’s Obligation to Customers with Regard to Recommendations : The Know Your Security, Suitability, and Know Your Customer Obligations
§ 14.26 Scalping and Related Activities
§ 14.27 High Pressure Sales Tactics: Boiler Room Operations
§ 14.28 Penny Stock Regulation; Microcap Fraud
§ 14.29 Excessive Trading in Securities—Churning
§ 14.30 Unauthorized Trading
§ 14.31 “Short Sales” and Applicable Regulations
§ 14.32 Parking
§ 14.33 Customer Protection for Broker-Dealer Insolvency—the Securities Investor Protection Act
§ 14.34 Private Remedies Against Exchanges and FINRA for Damages Resulting from Nonenforcement of Their Own Rules
§ 14.35 Private Remedies Against Market Professionals; Secondary Liability
Chapter 15. ARBITRATION OF BROKER-DEALER DISPUTES
§ 15.1 Enforceability of Broker-Dealer Arbitration Agreements
§ 15.2 Judicial Review of Arbitration Decisions
§ 15.3 Factors Relating to Enforceability of Pre-Dispute Arbitration Clauses
§ 15.4 Which Law Controls?
Chapter 16. Civil and Criminal Enforcement: SEC Injunctions, Investigations, Parallel Proceedings; Administrative Hearings and Disciplinary Sanctions
§ 16.1 Overview of SEC Enforcement
§ 16.2 SEC Administrative Hearings
§ 16.3 SEC Injunctions
§ 16.3[1] Power to Seek Injunctive Relief
§ 16.3[2] Preliminary Injunctive Relief
§ 16.3[3] Ancillary Relief in SEC Injunction Actions
§ 16.3[3][A] Varieties of Ancillary Relief
§ 16.3[3][B] Disgorgement of Profits
§ 16.4 Civil Penalties in SEC Enforcement Actions
§ 16.5 Bar Orders
§ 16.6 SEC Investigations
§ 16.7 Parallel Civil and Criminal Proceedings
§ 16.8 Section 21(a) Reports
§ 16.9 Section 15(c)(4) Orders
§ 16.10 Cease and Desist Authority
§ 16.11 SEC Administrative Proceedings
§ 16.12 Civil Penalties in Administrative Proceedings
§ 16.13 Suspension of the Right to Practice Before the Commission—SEC Rule 102(e)
§ 16.14 SEC Oversight Authority
Chapter 17. JURISDICTIONAL ASPECTS
§ 17.1 Exclusive Federal Jurisdiction Under the 1934 Act ; Concurrent Jurisdiction Under the 1933 and Other Securities Acts
§ 17.1[1] The Jurisdictional Mosaic
§ 17.1[2] Concurrent Jurisdiction Under the 1933 and Other Securities Acts and the Right of Removal
§ 17.1[3] Exclusive Federal Jurisdiction Under the 1934 Act
§ 17.1[4] Federal Supplemental (or Pendent) Jurisdiction over State Claims
§ 17.2 Subject Matter Jurisdiction—Use of the Jurisdictional Means
§ 17.3 Extraterritorial Application of the Securities Laws ; Their Relevance to Foreign Issuers and to Transactions in Foreign Markets; Antifraud Provisions
§ 17.3[1] Extraterritorial Jurisdiction Under the Antifraud Provisions
§ 17.3[2] 1933 Act Registration and 1934 Act Reporting Requirements for Foreign Issuers
§ 17.3[3] Multijurisdictional Disclosure System for Canadian Issuers
Chapter 18. DEBT SECURITIES AND PROTECTION OF BONDHOLDERS—THE TRUST INDENTURE ACT OF 1939
§ 18.1 Introduction to the Trust Indenture Act of 1939
§ 18.2 Operation of the Trust Indenture Act of 1939; Exemptions
§ 18.3 Qualification Under the Trust Indenture Act
§ 18.4 Trustee Qualifications
§ 18.5 Qualification of the Indenture; Required Provisions
§ 18.6 Duties of Trustee When the Issuer Defaults
§ 18.7 Enforcement of the Trust Indenture Act; Remedies for Trustees’ Breaches of Duties
§ 18.8 Overview of the Trust Indenture Act’s Registration and Disclosure Requirements
Chapter 19. FEDERAL REGULATION OF INVESTMENT COMPANIES—THE INVESTMENT COMPANY ACT OF 1940
§ 19.1 The Investment Company Act of 1940: Background and Scope
§ 19.2 The Relationship Between Investment Companies, Investment Advisers, and Underwriters
§ 19.3 The Definition of “Investment Company” ; the Problem of the Inadvertent Investment Company; Hedge Funds
§ 19.4 Classification of Investment Companies
§ 19.4[1] Open-End and Closed-End Funds; Exchange Traded Funds
§ 19.4[1][A] Open-End and Closed-End Funds Distinguished
§ 19.4[1][B] Exchange Traded Funds (ETFs)
§ 19.5 Regulating the Distribution and Pricing of Investment Company Shares
§ 19.5[1] Distribution and Pricing of Closed-End Investment Company Shares; Repurchases of Its Own Shares
§ 19.5[2] Distribution and Pricing of Open-End Investment Company Shares
§ 19.5[3] Secondary Markets for Investment Company Shares
§ 19.5[4] Improper Trading and Pricing Practices
§ 19.5[4][A] Late Trading
§ 19.5[4][B] Market Timing
§ 19.5[4][C] Breakpoint Pricing of Investment Company Shares
§ 19.6 Investment Company Directors—Fiduciary Duties; Independent Investment Company Directors
§ 19.6[1] Composition of an Investment Company’s Board of Directors
§ 19.6[2] Duties of Investment Company Directors
§ 19.6[3] Approval of the Advisory Contract
§ 19.6[4] Other Investment Company Board Obligations
§ 19.6[5] Enhanced Fiduciary Obligations; Investment Adviser Code of Ethics
§ 19.7 Transactions Between an Investment Company and Affiliated Persons
§ 19.8 Registration and Disclosure Requirements; Civil Liability
§ 19.8[1] Investment Company Name
§ 19.8[2] Registration Requirements
§ 19.8[3] Reporting Requirements
§ 19.8[4] Investment Company Sales Literature
§ 19.9 Limitations on Advisory Fees; Transfers of Control —the “Sale” of Investment Advisory Contracts
§ 19.9[1] Investment Advisory Fees
§ 19.9[2] Modification or Assignment of the Advisory Contract
§ 19.10 Private Causes of Action and Civil Liability for Violations of the Investment Company Act
Chapter 20. INVESTMENT ADVISERS ACT OF 1940
§ 20.1 Regulation of Investment Advisers; Terms and Conditions in Advisory Contracts
§ 20.2 Who Is Subject to the Advisers Act—Definitions, Exclusions, and Exemptions
§ 20.3 Exclusions from the Definition of Investment Adviser
§ 20.4 Exemptions from the Investment Advisers Act
§ 20.5 Investment Adviser Registration and Reporting Requirements
§ 20.6 Prohibited Investment Adviser Practices
Chapter 21. SPECIAL PROBLEMS AND OVERVIEW OF RELATED LAWS
§ 21.1 Related Laws
§ 21.2 The Foreign Corrupt Practices Act
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