February 7, 2007 no. 452 - Vol. 5

"The perfection of art is to conceal art."

Quintilian

A reader writes: "Dear editor, can you give me a crash course in Securities Law? I need something that can easily be absorbed. Thanks" Grammatigalhas responds: "Here you go!"

  • Top News

Brazil scolds rich on environment

Lula has accused developed countries of failing to do enough to fight against global warming. "It is time for wealthy countries to do more to reduce gas emissions," he said. Lula said developed nations applied a double standard in their approach to global warming, and he accused wealthy countries of not doing enough on the environment before, but he has rarely been this direct. He said they were skilful at drafting agreements and protocols, like the Kyoto treaty, to appear as if they were doing something to reverse dangerous gas emissions. In practice, however, he said the results proved otherwise. Brazil has reduced the deforestation of the Amazon rainforest by more than 50% in the last three years.

Wal-Mart bias case to go to trial

Wal-Mart will face a lawsuit claiming pay discrimination against more than a million female US employees after a court approved the action. A federal appeals court upheld a 2004 ruling giving the lawsuit class action status, sanctioning claims from up to 1.5 million current and former staff. Should it lose the case, the world's largest retailer could have to pay damages worth billions of dollars. "Factual evidence, statistical evidence and anecdotal evidence present significant proof of a corporate policy of discrimination and support plaintiff's contention that female employees nationwide were subjected to a common pattern and practice of discrimination," Judge Martin Jenkins said in support of the case going to trial. Wal-Mart has said it did not have a policy discriminating against women. The world's largest retailer said it would appeal against the verdict.

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  • Grammatigalhas

Legal Meaning Is Not Everyday Meaning

Over-the-counter (Abbr. OTC)

Not listed or available on an officially recognized stock exchange but traded in direct negotiation between buyers and sellers: over-the-counter stocks. That can be sold legally without a doctor's prescription: over-the-counter drugs.

Proxy

1. An agent legally authorized to act on behalf of another party. Shareholders not attending a company's annual meeting may choose to vote their shares by proxy by allowing someone else to cast votes on their behalf. Management often encourages shareholders to vote by proxy so that ownership interests are fully represented even if shareholders are unable to attend the company's annual meetings in person.

2. A formal power of attorney document that may be signed by a shareholder to authorize another shareholder, a representative of the shareholder or the company's management, to vote on behalf of the shareholder at the annual meeting. Proxy statements must be filed with regulatory authorities (the Securities and Exchange Commission in the U.S.) on an annual basis prior to the company's annual meeting. Proxy documents are meant to provide shareholders with the information necessary to make informed votes on issues important to the company's performance. They are known to offer shareholders and prospective investors tremendous insight into a company's governance as well as a glance at the way that a company's management operates.

Everyday "Legal" Jargon

The Securities And Exchange Commission (SEC)

The SEC is an independent regulatory agency, created by the Securities Exchange Act of 1934, and empowered to enforce the various federal securities laws and to promulgate regulations to aid in their enforcement.

Its basic functions:

  1. requiring disclosure of facts concerning offerings of securities to the public;

  2. regulating the trade in securities on national and regional securities exchanges and in the over-the-counter ("OTC") markets;

  3. investigating securities fraud;

  4. registering and regulating the activities of securities brokers, dealers, and investment advisers;

  5. supervising mutual funds; and

  6. recommending administrative sanctions, injunctions, and criminal prosecution for violations of federal securities laws.

Defining "Security"

An instrument representing ownership (stocks), a debt agreement (bonds), or the rights to ownership (derivatives).

Both the Securities Act of 1933 and the Securities Exchange Act of 1934 define a "security" as: any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, ... investment contract, ... option, ... or, in general, any interest or instrument commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.

Investment Contract: Any transaction in which a person

  1. invests (by purchasing stock, a bond, or other security)

  2. in a common enterprise,

  3. from which she reasonably expects to earn profits

  4. primarily or substantially as a result of the managerial or entrepreneurial efforts of others.

Registration

Section 5 of the Securities Act requires that, subject to certain exemptions, a security must be registered before it is offered for sale to the public either through the mails or other facility of interstate commerce, including stock exchanges.

The issuer of a nonexempt security – unless the issuing transaction itself is exempt – must file with the SEC a registration statement, which must include a description of

  1. the significant characteristics of the offered security, including its relationship to the issuer’s other outstanding securities,

  2. how the issuer intends to use the proceeds from the sale of the offered security,

  3. the issuer's properties and business activities,

  4. the issuer's directors and officers, their compensation, securities holdings, and other benefits, and any interest in any material transactions, and

  5. a financial statement certified by an independent accounting firm, as well as

  6. any pending lawsuits.

Exempt securities

  • Securities issued or guaranteed by the federal government, a state or local government, or any public instrumentality;

  • Securities issued by a bank, savings institution, trust company, farmers’ cooperative, or similar institutions subject to government supervision;

  • Insurance, endowment, pension, or annuity contracts issued by a state-regulated insurance company;

  • Commercial paper maturing in nine months or less;

  • Securities issued by charitable organizations;

  • Certificates issued by trustees, receivers, or debtors-in-possession under the bankruptcy laws;

  • Securities issued exclusively for exchange for securities held by the issuer’s pre-existing security holders;

  • Securities offered and sold only to persons within a single state by an issuer who is a resident of that state; and

  • At the SEC's discretion, securities not subject to any other exemption that are offered by any issuer offering $5 million or less worth of securities during a 12-month period.

Transactions exempt by statute

  • Transactions by any person other than an issuer, underwriter, or dealer;

  • Private offering transactions by an issuer;

  • Transactions by a dealer, more than forty days after

    • the effective date of a registration statement, if any; or

    • the first date upon which the security was bona fide offered to the public by the issuer or by or through an underwriter after such effective date, whichever is later; unless

    • the securities are part of an unsold allotment to or subscription by such dealer as a participant in the distribution;

  • Unsolicited brokers' transactions; and

  • Section 4(6): Offerings of up to $5 million per year made solely to accredited investors, provided that there is no advertising or public solicitation in connection with the transaction by the issuer or anyone acting on the issuer's behalf.

Transactions exempt by rule

  • SEC Regulation D exempts from registration certain transactions in otherwise non-exempt securities.

  • Rule 504: Offerings of up to $1 million per year by a company that is not primarily engaged in investing or trading securities (a noninvestment company);

  • Rule 504a: Offerings of up to $500,000 per year by a so-called blank check company;

  • Rule 505: Offerings of up to $5 million per year by a noninvestment company that are directed primarily to accredited investors; and

  • Rule 506: Private offerings, not generally solicited or advertised, regardless of the amount.

  • Rule 147: Offerings that are purely local or intrastate, regardless of amount.

Resales and affiliates

The 1933 Act and SEC rules generally permit persons other than issuers, their affiliates, and underwriters to resell any securities they hold without filing a registration statement.

An affiliate of the issuer controls, is controlled by, or is in common control with, the issuer. Affiliates are subject to additional restrictions on resale.

Restricted Securities: If the securities the person wishes to resell were acquired under Rule 504a, 505, or 506, or Section 4(6), the reseller must register unless she falls within one of two "safe harbors":

Rule 144: A reseller who has owned the securities for at least one year need not register if (1) there is adequate current public information about the issuer, (2) the reseller sells the shares in limited amounts in unsolicited brokers' transactions, and (3) the reseller notifies the SEC. A reseller who has owned the securities for at least two years is not subject to any restrictions unless they are an affiliate of the issuer.

Rule 144A: Securities that, at the time of issue, are not publicly listed or quoted may be resold to a qualified institutional buyer without registration by the reseller.

Securities act liability and defenses

Any violation of the 1933 Act's registration requirements or any material misrepresentation or omission in a registration statement or prospectus may result in civil – and, if the violation was willful, criminal – liability.

A defendant can avoid liability under the 1933 Act by proving one or more of the following:

Immateriality: Even if the defendant made a false or misleading statement or omission, the statement or omission was not material;

Plaintiff's Knowledge: Even if the defendant made a false or misleading statement or omission, the plaintiff knew about the misrepresentation or omission and bought the stock anyway; or

Due Diligence: The defendant (other than an issuer) reasonably believed, at the time the registration statement became effective, that the statements it contained were true and there were no omissions of material fact.

Securities fraud

The Securities Exchange Act of 1934 regulates securities exchanges, brokers, dealers, and national securities associations, as well as all corporations (1) whose stock is listed on a stock exchange or (2) which have assets in excess of $10 million and five hundred or more shareholders.

Section 10(b) of the 1934 Act prohibits the use of "any manipulative or deceptive" statement, instrument, or the like in an attempt to contravene the rules and regulations set forth by the SEC.

Section 10(b) does not explicitly provide a cause of action for an injured plaintiff. Courts have read an implied private cause of action into Rule 10b-5.

Rule 10b-5: An SEC rule making it unlawful, in connection with the purchase or sale of any security, to

  1. make any untrue statement of a material fact or

  2. omit a material fact, if such omission causes the statement to be misleading.

The key to liability under Rule 10b-5 is whether the untrue statement or omission concerns a material fact.

Insider reporting and trading

Insider Reporting: Section 12 of the 1934 Act requires that all officers, directors, and shareholders owning 10 percent or more of any class of a corporation’s stock file reports with the SEC reflecting their ownership and trading of the corporation's securities.

Insider Trading: The purchase or sale of securities on the basis of information that has not been made available to the investing public.

Sanctions: Section 16(b) of the 1934 Act allows the corporation to "recapture" any profits realized by an insider on any sale and purchase or purchase and sale of the corporation’s stock, warrants, options, or other securities that can be converted into stock within any six-month period – regardless of whether the insider’s trading was a result of any "inside information".

In addition, the Insider Trading Sanctions Act of 1984 and the Insider Trading and Securities Fraud Enforcement Act of 1988 give the SEC broad powers to bring civil suit against insiders and others who use inside information for their own benefit.

Tippers and tippees

Anyone who acquires inside information as a result of a corporate insider's breach of his fiduciary duty to the corporation – even tippees, who are not "insiders", but who receive inside information from an insider – can be liable under Rule 10b-5 for insider trading.

In order for a tippee to be liable, he must:

  1. receive inside information,

  2. which was disclosed, in exchange for some personal benefit to a corporate insider (the tipper),

  3. as a result of the tipper's breach of his fiduciary duty to the corporation,

  4. of which breach the tippee knows or should know, and

  5. from which breach the tippee benefits financially.

Investment companies and mutual funds

Investment Company: A company that acts on behalf of many smaller shareholders/owners by buying a large portfolio of securities and professionally managing that portfolio.

Mutual Fund: An investment company that buys and sells shares of ownership in a professionally-managed portfolio.

The Investment Company Act of 1940 requires any entity engaged primarily "in the business of investing, reinvesting, or trading in securities" or having more than 40 percent of its assets in investment securities and engages at all in such business to

  1. register with the SEC,

  2. file an annual report with the SEC describing the company's securities holdings and trading activity, and

  3. have all of the company's securities held in the custody of a bank or a stock exchange member.

State securities law

Every state has its own securities law (a.k.a. "blue sky" law) that regulates the offer and sale of securities within a state, to or from the state, and to or by a citizen of the state.

While a state's securities law will yield to contradictory federal law if the issue, offer, or transaction at question is subject to both state and federal law, federal law has not displaced state law restrictions on fraudulent or negligent misrepresentations in registration materials filed with the state or made by someone offering or selling (and, in some states, the purchasing) securities.

Online securities offerings

Equal Footing: The SEC has opined that online securities offerings are governed by the same rules as traditional offerings and that anything that has traditionally been accomplished using paper media should also be possible using electronic media.

Prospectus Delivery: For example, when an issuer or underwriter uses the Internet to deliver a prospectus, it must (1) provide timely and adequate notice of the delivery of information, (2) ensure that the online communication system is easily accessible to potential subscribers, and (3) create some evidence of delivery of the prospectus.

Potential Liability: Two fairly obvious sources of liability for online securities offerings are (1) failing to adequately restrict the terms of the offering to the terms of the prospectus itself, due to use of hyperlinks and the like, and (2) failing to adequately restrict access to information in order to avoid general solicitation.

Foreign Issuers: The SEC requires foreign issuers offering stock on the Internet add a disclaimer that its shares are not registered in accordance with U.S. securities law, and has advised that it will pursue unregistered foreign issuers it determines are specifically targeting U.S. investors.

Online securities fraud

Illegal Offerings: The SEC has begun to file enforcement actions against issuers who use Internet discussion boards, chat rooms, and even auction sites to offer or sell securities without complying with the requirements of the 1933 Act.

"Pump and Dump": A scheme whereby someone holding a particular stock uses the anonymity of the Internet to falsely tout the virtues of the stock in an effort to artificially raise its price, and then sells the stock once he has driven the price up to a profitable level.

Cybersmear: Falsely defaming a particular stock to artificially lower its price – either to do economic harm to the issuer or to enable the culprit to purchase valuable stock at a below-value price.

Sarbanes-Oxley

The most significant statutory change to the federal securities regulatory regime was the passage in 2002 of the Sarbanes-Oxley Act, a far-reaching attempt to increase corporate accountability – and, in turn, restore investor confidence shaken by a series of major scandals – by imposing stricter disclosure requirements and harsher penalties for violations of federal securities law. For example:

Chief corporate executives are now personally responsible for the accuracy of financial statements and reports filed with the SEC;

Certain financial and stock transaction reports must be filed with the SEC earlier than before;

The Act created the Public Company Accounting Oversight Board to regulate public accounting firms.

Commonly used SEC forms

SEC Form 4 (Statement of changes in beneficial ownership of securities, stock and stock options ownership and exercise disclosure)

SEC Form S-1 (Registration statement - IPO)

Form 8-K (Current report)

SEC Form 10-K (Annual report)

As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice

Red herring

Irrelevant matter, usually one that diverts attention from the subject under discussion.

A red herring is one that has been smoked, its color having become reddish-brown in the process. It makes its first metaphorical appearance (late 19th century) in such expressions as 'draw a red herring across the trail' (introduce an irrelevance), which implies that its strong odor is capable of leading hounds away from a scent if one is drawn across the trail between them and the fox. This may be a purely fanciful picture (unrelated to hunt sabotage, which came later) or it may be because herrings were used when hunters were training hounds to follow a scent, with the result that hunts were sometimes sidetracked if hounds encountered and followed such a trail previously laid for training purposes.

Red Herring - Preliminary Prospectus

A first draft registration statement filed by a firm prior to proceeding with an initial public offering of securities. The document, filed with the Securities & Exchange Commission, is intended to provide pertinent information to prospective shareholders about the company's business description, management, strategic initiatives, financial statements and ownership structure. The SEC requires a preliminary prospectus to be printed with red ink on the left side of the cover; as a result, the document has been nicknamed the "red herring".

Touch Bases / Touch Base

Although in baseball a home-run hitter has to touch all four bases while whizzing past, when you propose to linger with someone long enough to compare notes you do all your chatting at a single base. The expression is "let"s touch base".

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  • Historia Verdadera

Perdida

La justicia argentina llora la muerte del ex juez de la Corte Suprema, Héctor Masnatta. Un infarto apagó la vida del prestigioso jurista el domingo, cuando se encontraba de vacaciones en Punta del Este, Uruguay. Masnatta de 85 años era experto en arbitrajes internacionales y se desempeñaba como representante del Estado en el directorio de la empresa Repsol-YPF y era asesor del presidente Néstor Kirchner.

Fiebre de Constituyente

El presidente Felipe Calderón convocó a los poderes judicial y legislativo a renovar la Carta Magna, el planteamiento surgió en ocasión de conmemorar los 90 años de la Ley mayor de México.

Ante la OMC

El gobierno chileno apeló ante la OMC por el fallo que busca poner fin al sistema que protege el trigo y azúcar. En la pugna entre Chile y Argentina no se descarta la conformación un panel de expertos para esclarecer el tema de los lácteos.

  • Brief News

Hackers launch global attack on internet

Hackers overwhelmed at least three of the 13 computers that help manage global computer traffic, in one of the most significant attacks against the internet since 2002. Experts said the unusually powerful attacks lasted as long as 12 hours but passed largely unnoticed by most computer users, a testament to the resiliency of the internet. Behind the scenes, computer scientists around the world raced to cope with enormous volumes of data that threatened to saturate some of the internet’s most vital pipelines.

US Retailers Blog About Own Wares

Some retailers are using blogs to help market designer clothing. But these commentators are in the awkward position of reviewing their own suppliers -- and their aim isn't to offer impartial critique. One million people who had previously provided Neiman Marcus with their email addresses were expected to get "teaser" notes directing them to log on to Mr. Downing's Runway Report . The Media Bloggers Association, a club for bloggers that creates ethical standards, says these postings aren't blogs but rather "clogs" -- his name for corporate Web logs -- which usually have a marketing or public relations mission.

Car firms facing pollution curbs

The European Commission is to seek a cut of 18% in CO2 produced by the average new car within five years.

France cartoons lawsuit to begin

Two French Muslim organizations are suing the magazine Charlie Hebdo for printing cartoons satirizing the Prophet Muhammad. The Muslim groups charge the magazine with "insulting a group of people on the basis of religion". Charlie Hebdo reprinted Danish cartoons that provoked a violent backlash in the Muslim world a year ago. Supporters of the magazine, including some French Muslims, say the trial is a test case for free speech.

Apple seeks online music shake-up

Steve Jobs, the boss of Apple, has urged the world's largest record companies to begin selling songs online without security software. He said the abolition of copy protection software known as digital rights management (DRM) would be good for consumers and music suppliers.

Copyright protection had failed to tackle piracy, he argued. The firm behind the iPod has been under pressure to make its iTunes music store compatible with other music players. Consumer rights groups in several European countries have lodged complaints with the firm over the incompatibility of iTunes with other music players.

Jets banned from Sao Paulo runway

A Brazilian judge has banned three types of jets from Sao Paulo's Congonhas airport because of concerns about the length of the runway. Judge Ronald Carvalho Filho ruled Fokker 100 jets and two types of Boeing 737 were too large to be accommodated. There have also been problems reported with the airport's drainage system. The ruling follows months of disruption in Brazil's aviation sector, including work-to-rule stoppages by air-traffic control staff. Authorities at Congonhas airport are expected to appeal against the decision.

Dengue alert issued in S America

A health alert has been declared in Brazil, Paraguay and Bolivia after an outbreak of dengue fever. The authorities have blamed higher rainfall this season as a cause of the unusually rapid spread of the disease. Experts also say the uncommonly warm weather has boosted the population of mosquitoes, which transmit the disease. Globally, it infects 50m people a year, the UN says. It starts as a flu-like illness but without the proper help it can develop into a deadly fever. Dengue fever is not uncommon in South America, where thousands of cases are recorded every year.

US to get Africa command centre

Bush has approved a Pentagon plan for a command centre for Africa to oversee US military activities on the continent. "This new command will strengthen our security co-operation with Africa," he said.

Bush also said he had asked Defence Secretary Robert Gates to get the new command, known as Africom, up and running by the end of September 2008. US would consult African leaders on the command's base.

Euro emergency number 'unknown'

Campaigners have demanded greater efforts to publicise the little-known European emergency number - 112. The number is meant to put callers in contact with emergency services in all 27 EU member states, but in many of them it is reported to be unreliable. More than two-thirds of Europeans are said to be unaware of its existence.

The sudden descent of a shuttle astronaut

In what NASA is calling a bizarre and sad story, an astronaut is accused of attempted kidnapping and murder. Police say that Lisa Nowak planned to kidnap and kill someone she considered to be a romantic rival for the affection of another astronaut. Nowak, 43, is a married mother of three.

Giuliani joins race for president

Former New York Mayor Rudolph Giuliani has officially joined the running for the Republican nomination for the 2008 US presidential election.

  • Daily Press Review

Africa

State loses case against EA court president
East African Standard, Liberal daily of Nairobi, Kenya

EGYPT: 5 million infected with Hepatitis C
Integrated Regional Information Networks (United Nations), Nairobi, Kenya

Mugabe axes finance minister
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Wanted 'heist killer' walks and nobody knows how
The Sowetan, Liberal daily of Johannesburg, South Africa

Cop shot 3 times, admitted to UTH
Times of Zambia, Government-owned daily of Lusaka, Zambia

Americas

Joint water management initiative launched
Barbados Advocate, Independent daily of St Michael, Barbados

Much-debated January CoL set at 1.1%
Buenos Aires Herald, Liberal daily of Buenos Aires, Argentina

Battle for Kingston - Cummings challenging McKenzie for mayorship
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Familiar anti-drug walkthrough vs the politics, economics of drug trafficking
The Guadalajara Colony Reporter, Independent weekly of Guadalajara, Mexico

Asia Pacific

Court rules for victims of A-bomb / Hiroshima govt appeal rejected
Daily Yomiuri, Conservative daily of Tokyo, Japan

Chinese, South African presidents meet for closer ties
People's Daily Online, Pro-government daily of Beijing, China

Stripped victim dumped in gutter
The Sydney Morning Herald, Centrist daily of Sydney, Australia

Car Manufacturers Stop Production
Tempo, Independent weekly of Jakarta, Indonesia

Calm Returning Slowly in Terai; Curfew in Malangawa, Biratnagar
The Himalayan Times, Independent daily of Kathmandu, Nepal

Go ahead for casinos to recover RM7.1m gambling debts from former CM
The Sun, Independent daily of Kuala Lumpur, Malaysia

Europe

EU Aims to Coordinate National Development Aid Programs
Deutsche Welle, International broadcaster of Cologne, Germany

Kazakhstan's membership of CSTO, SCO doesn't hamper cooperation with NATO - envoy Interfax,
Government-owned news agency, Moscow, Russia

Revealed: the scandal of our maternity services
Irish Examiner, Centrist daily of Cork, Ireland

Putin Says Business Must Diversify
The Moscow Times, Independent, English-language daily of Moscow, Russia

How exhilaration of going in for the kill turned, in seconds, to utter despair
The Scotsman, Centrist daily of Edinburgh, Scotland

Halkbank decision a huge disappointment for markets
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

A fragile truce
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

Riyadh First e-City of Kingdom
Arab News, Pro-government, English-language daily of Jidda, Saudi Arabia

Olmert-Abbas-Rice Summit Set for Feb 19
Arutz Sheva, Pro-settler publication of Israel

Radical changes in labour law mooted
Gulf News, Independent daily of Dubai, United Arab Emirates

Muslim leader held over bid to enter J'lem dig site
Ha`aretz, Liberal daily of Tel Aviv, Israel

Iran, Morocco discuss enhancement of trade, economic ties
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

Beckett insists: Any PA gov't must recognize Israel
The Jerusalem Post, Conservative daily of Jerusalem, Israel

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