(8) The term "registration statement" means the statement provided for in section 77f of this title, and includes any amendment thereto and any report, document, or memorandum accompanying such statement or incorporated therein by reference. (9) The term "write" or "written" shall include printed, lithographed, or any means of graphic communication. (10) The term "prospectus" means any prospectus, notice, circular, advertisement, letter, or communication, written or by radio, which offers any security for sale; except that (a) a communication shall not be deemed a prospectus if it is proved that prior to or at the same time with such communication a written prospectus meeting the requirements of section 77j of this title was sent or given to the person to whom the communication was made, by the person making such communication or his principal, and (b) a notice, circular, advertisement, letter, or communication in respect of a security shall not be deemed to be a prospectus if it states from whom a written prospectus meeting the requirements of section 77j of this title may be obtained and, in addition, does no more than identify the security, state the price thereof, and state by whom orders will be executed. (11) The term "underwriter" means any person who has purchased from an issuer with a view to, or sells for an issuer in connection with, the distribution of any security, or participates or has a direct or indirect participation in any such undertaking, or participates or has a participation in the direct or indirect underwriting of any such undertaking; but such term shall not include a person whose interest is limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. As used in this paragraph the term "issuer" shall include, in addition to an issuer, any person directly or indirectly controlling or controlled by the issuer, or any person under direct or indirect common control with the issuer. (12) The term "dealer" means any person who engages either for all or part of his time, directly or indirectly, as agent, broker, or principal, in the business of offering, buying, selling, or otherwise dealing or trading in securities issued by another person. (May 27, 1933, ch. 38, title I, § 2, 48 Stat. 74; June 6, 1934, ch. 404, §§ 201, 210, 48 Stat. 905, 908; 1946 Proc. No. 2695, eff. July 4, 1946, 11 F. R. 7517, 60 Stat. 1352.) CODIFICATION Words "Philippine Islands" were deleted from the definition of term "Territory" under authority of 1946 Proc. No. 2695, which granted independence to the Philippine Islands. Said Proc. No. 2695 was issued pursuant to section 1394 of Title 22, Foreign Relations and Intercourse, and is set out as a note under that section. AMENDMENTS 1934-Act June 6, 1934, § 201, amended paragraphs (1), (4), and (10). TRANSFER OF FUNCTIONS All executive and administrative functions of the Securities and Exchange Commission were, with certain exceptions, transferred to the Chairman of such Commission, with authority vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by 1950 Reorg. Plan No. 10, §§ 1, 2, eff. May 24, 1950, 15 F. R. 3175, 64 Stat. 1265, set out in note under section 78d of this title. Act June 6, 1934, § 210, transferred to the Securities and Exchange Commission the powers, duties, and functions of the Federal Trade Commission under this subchapter by substituting the Securities and Exchange Commission for the Federal Trade Commission in the definition of "Commission" in paragraph (5). CROSS REFERENCES Corporate reorganizations, arrangements and real property arrangements, application of the terms security, issuer, underwriter, and dealer as defined in this section to, see sections 664 (b), 793 (b), and 918 (b) of Title 11, Bankruptcy. Definition of the terms Sale and sell, prospectus, and underwriter under the Trust Indenture Act of 1939, see section 77ccc of this title. Security, person, and sale or sell under the Public Utility Holding Company Act of 1935, see this title. Security, person, and sale or sell under the Public Utility Holding Company Act of 1935, see section 79b of this title. Security, person, sale and sell, issuer, prospectus, underwriter, and dealer under the Investment Company Act of 1940, see section 80a-2 of this title. Security, person, underwriter, and dealer under the Investment Advisers Act of 1940, see section 80b-2 of this title. Public offering, see section 77d of this title. Trust Indenture Act of 1939, application to, see section 77ccc of this title. § 77c. Exempted securities. (a) Except as hereinafter expressly provided, the provisions of this subchapter shall not apply to any of the following classes of securities: (1) Any security which, prior to or within sixty days after May 27, 1933, has been sold or disposed of by the issuer or bona fide offered to the public, but this exemption shall not apply to any new offering of any such security by an issuer or underwriter subsequent to such sixty days; (2) Any security issued or guaranteed by the United States or any Territory thereof, or by the District of Columbia, or by any State of the United States, or by any political subdivision of a State or Territory, or by any public instrumentality of one or more States or Territories, or by any person controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States, or any certificate of deposit for any of the foregoing, or any security issued or guaranteed by any national bank, or by any banking institution organized under the laws of any State or Territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or Territorial banking commission or similar official; or any security issued by or representing an interest in or a direct obligation of a Federal Reserve bank; (3) Any note, draft, bill of exchange, or banker's acceptance which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited; (4) Any security issued by a person organized and operated exclusively for religious, educational, benevolent, fraternal, charitable, or reformatory purposes and not for pecuniary profit, and no part of the net earnings of which inures to the benefit of any person, private stockholder, or individual; (5) Any security issued by a building and loan association, homestead association, savings and loan association, or similar institution, substantially all the business of which is confined to the making of loans to members (but the foregoing exemption shall not apply with respect to any such security where the issuer takes from the total amount paid or deposited by the purchaser, by way of any fee, cash value or other device whatsoever, either upon termination of the investment at maturity or before maturity, an aggregate amount in excess of 3 per centum of the face value of such security), or any security issued by a farmers' cooperative association as defined in paragraphs (12)-(14) of section 103 of the Revenue Act of 1932; (6) Any security issued by a common or contract carrier, the issuance of which is subject to the provisions of section 20a of Title 49; (7) Certificates issued by a receiver or by a trustee in bankruptcy, with the approval of the court; (8) Any insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia; (9) Any security exchanged by the issuer with its existing security holders exclusively where no commission or other remuneration is paid or given directly or indirectly for soliciting such exchange; (10) Any security which is issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of such issuance and exchange are approved, after a hearing upon the fairness of such terms and conditions at which all persons to whom it is proposed to issue securities in such exchange shall have the right to appear, by any court, or by any official or agency of the United States, or by any State or Territorial banking or insurance commission or other governmental authority expressly authorized by law to grant such approval; (11) Any security which is a part of an issue sold only to persons resident within a single State or Territory, where the issuer of such security is a person resident and doing business within or, if a corporation, incorporated by and doing business within, such State or Territory. (b) The Commission may from time to time by its rules and regulations, and subject to such terms and conditions as may be prescribed therein, add any class of securities to the securities exempted as provided in this section, if it finds that the enforcement of this subchapter with respect to such securities is not necessary in the public interest and for the protection of investors by reason of the small amount involved or the limited character of the public offering; but no issue of securities shall be exempted under this subsection where the aggregate amount at which such issue is offered to the public exceeds $300,000. (May 27, 1933, ch. 38, title I, § 3, 48 Stat. 75; June 6, 1934, ch. 404, § 202, 48 Stat. 906; Feb. 4, 1887, ch. 104, title II, § 214, as added Aug. 9, 1935, ch. 498, 49 Stat. 557, and amended June 29, 1938, ch. 811, § 15, 52 Stat. 1240; May 15, 1945, ch. 122, 59 Stat. 167.) REFERENCES IN TEXT Revenue Act June 6, 1932, ch. 209, § 103, pars. (12).— (14), 47 Stat. 193, 194, referred to in text of subsection (a) (5), has been substantially reenacted as section 101, pars. (12)—(14) of Title 26, Internal Revenue Code. AMENDMENTS 1945 Subsec. (b) amended by act May 15, 1945, which substituted "$300,000" for "$100,000". 1938-Act June 29, 1938, reenacted subsection (a) (6) without change. 1935-Act Feb. 4, 1887, as added by act Aug. 9, 1935, amended paragraph (6) of subsection (a) by including a security issued by a contract carrier. 1934-Act June 6, 1934, amended paragraphs (2), (4), and (8) of subsection (a) and added paragraphs (9), (10), and (11) to said subsection (a). TRANSFER OF FUNCTIONS All executive and administrative functions of the Securities and Exchange Commission were, with certain exceptions, transferred to the Chairman of such Commission, with authority vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by 1950 Reorg. Plan No. 10, §§ 1, 2, eff. May 24, 1950, 15 F. R. 3175, 64 Stat. 1265, set out in note under section 78d of this title. CROSS REFERENCES Certificates of deposit issued in proceedings for modification of railroad financial structures, exemption, see section 20b (11) of Title 49, Transportation. Civil liabilities arising in connection with prospectuses and oral communications notwithstanding this section, see section 771 of this title. Fraudulent interstate transactions section as inapplicable to, see section 77q (c) of this title. Reorganization of railroads engaged in interstate commerce, certain classes of securities as within this section, see section 205 (f) of Title 11, Bankruptcy. Rules and regulations, authority of Commission to make, amend, and rescind, see section 77s of this title. Trust Indenture Act of 1939, application of subsection (a) of this section to, see section 77ddd of this title. § 77d. Exempted transactions. The provisions of section 77e of this title shall not apply to any of the following transactions: (1) Transactions by any person other than an issuer, underwriter, or dealer; transactions by an issuer not involving any public offering; or transactions by a dealer (including an underwriter no longer acting as an underwriter in respect of the security involved in such transaction), except transactions within one year after the first date upon which the security was bona fide offered to the public by the issuer or by or through an underwriter (excluding in the computation of such year any time during which a stop order issued under section 77h of this title is in effect as to the security), and except transactions as to securities constituting the whole or a part of an unsold allotment to or subscription by such dealer as a participant in the distribution of such securities by the issuer or by or through an underwriter. (2) Brokers' transactions, executed upon customers' orders on any exchange or in the open or counter market, but not the solicitation of such orders. (May 27, 1933, ch. 38, title I, § 4, 48 Stat. 77; June 6, 1934, ch. 404, § 203, 48 Stat. 906.) AMENDMENTS 1934 Act June 6, 1934, amended paragraph (1) generally and repealed a paragraph (3), provisions of which are now covered by section 77c (9), (10) of this title. CROSS REFERENCES Reorganization of railroads engaged in interstate commerce, transactions in certain classes of securities as within this section, see section 205 (f) of Title 11, Bankruptcy. Trust Indenture Act of 1939, application to transactions exempted by this section, see section 77ddd of this title. § 77e. Prohibitions relating to interstate commerce and the mails. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly— (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell or offer to buy such security through the use or medium of any prospectus or otherwise; or (2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale. (b) It shall be unlawful for any person, directly or indirectly (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to carry or transmit any prospectus relating to any security registered under this subchapter, unless such prospectus meets the requirements of section 77j of this title; or (2) to carry or to cause to be carried through the mails or in interstate commerce any such security for the purpose of sale or for delivery after sale, unless accompanied or preceded by a prospectus that meets the requirements of said section 77j. (May 27, 1933, ch. 38, title I, § 5, 48 Stat. 77; June 6, 1934, ch. 404, § 204, 48 Stat. 906.) Deposit issued in proceedings for modification of railroad financial structures, exemption of, see section 20b (11) of Title 49, Transportation. Indebtedness issued by receiver, trustee, or debtor in possession pursuant to sections 516 (2), 744 and 846 of Title 11, Bankruptcy, section as inapplicable to, see sections 664 (a) (1), 793 (a) (1), and 918 (a) (1) of Title 11, Bankruptcy. Civil liabilities for selling securities in violation of this section, see section 771 of this title. Intrastate issue of securities as exempt from this subchapter, see section 77b (a) (11) of this title. $77f. Registration of securities and signing of registration statement. (a) Any security may be registered with the Commission under the terms and conditions hereinafter provided, by filing a registration statement in triplicate, at least one of which shall be signed by each issuer, its principal executive officer or officers, its principal financial officer, its comptroller or principal accounting officer, and the majority of its board of directors or persons performing similar functions (or, if there is no board of directors or persons performing similar functions, by the majority of the persons or board having the power of management of the issuer), and in case the issuer is a foreign or Territorial person by its duly authorized representative in the United States; except that when such registration statement relates to a security issued by a foreign government, or political subdivision thereof, it need be signed only by the underwriter of such security. Signatures of all such persons when written on the said registration statements shall be presumed to have been so written by authority of the person whose signature is so affixed and the burden of proof, in the event such authority shall be denied, shall be upon the party denying the same. The affixing of any signature without the authority of the purported signer shall constitute a violation of this subchapter. A registration statement shall be deemed effective only as to the securities specified therein as proposed to be offered. (b) At the time of filing a registration statement the applicant shall pay to the Commission a fee of one one-hundredth of 1 per centum of the maximum aggregate price at which such securities are proposed to be offered, but in no case shall such fee be less than $25. (c) The filing with the Commission of a registration statement, or of an amendment to a registration statement, shall be deemed to have taken place upon the receipt thereof, but the filing of a registration statement shall not be deemed to have taken place unless it is accompanied by a United States postal money order or a certified bank check or cash for the amount of the fee required under subsection (b) of this section. (d) The information contained in or filed with any registration statement shall be made available to the public under such regulations as the Commission may prescribe, and copies thereof, photostatic or otherwise, shall be furnished to every applicant at such reasonable charge as the Commission may prescribe. (May 27, 1933, ch. 38, title I, § 6, 48 Stat. 78.) Investment advisers, see section 80b-3 of this title. Investment companies, see section 80a-8 of this title. National securities exchanges, see section 78f of this title. Registration requirements for securities under Securities Exchange Act of 1934, see section 781 of this title. Rules and regulations, authority of Commission to make, amend, and rescind, see section 77s of this title. Schedule of information required in registration statement, see section 77aa of this title. § 77g. Information required in registration statement. The registration statement, when relating to a security other than a security issued by a foreign government, or political subdivision thereof, shall contain the information, and be accompanied by the documents, specified in Schedule A of section 77aa of this title, and when relating to a security issued by a foreign government, or political subdivision thereof, shall contain the information, and be accompanied by the documents, specified in Schedule B of section 77aa of this title; except that the Commission may by rules or regulations provide that any such information or document need not be included in respect of any class of issuers or securities if it finds that the requirement of such information or document is inapplicable to such class and that disclosure fully adequate for the protection of investors is otherwise required to be included within the registration statement. If any accountant, engineer, or appraiser, or any person whose profession gives authority to a statement made by him, is named as having prepared or certified any part of the registration statement, or is named as having prepared or certified a report or valuation for use in connection with the registration statement, the written consent of such person shall be filed with the registration statement. If any such person is named as having prepared or certified a report or valuation (other than a public official document or statement) which is used in connection with the registration statement, but is not named as having prepared or certified such report or valuation for use in connection with the registration statement, the written consent of such person shall be filed with the registration statement unless the Commission dispenses with such filing as impracticable or as involving undue hardship on the person filing the registration statement. Any such registration statement shall contain such other information, and be accompanied by such other documents, as the Commission may by rules or regulations require as being necessary or appropriate in the public interest or for the protection of investors. (May 27, 1933, ch. 38, title I, § 7, 48 Stat. 78.) TRANSFER OF FUNCTIONS All executive and administrative functions of the Securities and Exchange Commission were, with certain exceptions, transferred to the Chairman of such Commission, with authority vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by 1950 Reorg. Plan No. 10, §§ 1, 2, eff. May 24, 1950, 15 F. R. 3175, 64 Stat. 1265, set out in note under section 78d of this title. CROSS REFERENCES Issue of securities by electric utility company engaged in interstate commerce, see section 824c of Title 16, Conservation. Rules and regulations, authority of Commission to make, amend, and rescind, see section 77s of this title. Trust Indenture Act of 1939, application to, see section 77eee (a) of this title. Undertaking to be contained in registration statement, see section 780 (d) of this title. § 77h. Taking effect of registration statements and amendments thereto. (a) Except as hereinafter provided, the effective date of a registration statement shall be the twentieth day after the filing thereof or such earlier date as the Commission may determine, having due regard to the adequacy of the information respecting the issuer theretofore available to the public, to the facility with which the nature of the securities to be registered, their relationship to the capital structure of the issuer and the rights of holders thereof can be understood, and to the public interest and the protection of investors. If any amendment to any such statement is filed prior to the effective date of such statement, the registration statement shall be Ideemed to have been filed when such amendment was filed; except that an amendment filed with the consent of the Commission, prior to the effective date of the registration statement, or filed pursuant to an order of the Commission, shall be treated as a part of the registration statement. (b) If it appears to the Commission that a registration statement is on its face incomplete or inaccurate in any material respect, the Commission may, after notice by personal service or the sending of confirmed telegraphic notice not later than ten days after the filing of the registration statement, and opportunity for hearing (at a time fixed by the Commission) within ten days after such notice by personal service or the sending of such telegraphic notice, issue an order prior to the effective date of registration refusing to permit such statement to become effective until it has been amended in accordance with such order. When such statement has been amended in accordance with such order the Commission shall so declare and the registration shall become effective at the time provided in subsection (a) of this section or upon the date of such declaration, whichever date is the later. (c) An amendment filed after the effective date of the registration statement, if such amendment, upon its face, appears to the Commission not to be incomplete or inaccurate in any material respect, shall become effective on such date as the Commission may determine, having due regard to the public interest and the protection of investors. (d) If it appears to the Commission at any time that the registration statement includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, the Commission may, after notice by personal service or the sending of confirmed telegraphic notice, and after opportunity for hearing (at a time fixed by the Commission) within fifteen days after such notice by personal service or the sending of such telegraphic notice, issue a stop order suspending the effectiveness of the registration statement. When such statement has been amended in accordance with ་ such stop order, the Commission shall so declare and thereupon the stop order shall cease to be effective. (e) The Commission is empowered to make an examination in any case in order to determine whether a stop order should issue under subsection (d) of this section. In making such examination the Commission or any officer or officers designated by it shall have access to and may demand the production of any books and papers of, and may administer oaths and affirmations to and examine, the issuer, underwriter, or any other person, in respect of any matter relevant to the examination, and may, in its discretion, require the production of a balance sheet exhibiting the assets and liabilities of the issuer, or its income statement, or both, to be certified to by a public or certified accountant approved by the Commission. If the issuer or underwriter shall fail to cooperate, or shall obstruct or refuse to permit the making of an examination, such conduct shall be proper ground for the issuance of a stop order. (f) Any notice required under this section shall be sent to or served on the issuer, or, in case of a foreign government or political subdivision thereof, to or on the underwriter, or, in the case of a foreign or Territorial person, to or on its duly authorized representative in the United States named in the registration statement, properly directed in each case of telegraphic notice to the address given in such statement. (May 27, 1933, ch. 38, title I, § 8, 48 Stat. 79; Aug. 22, 1940, ch. 686, title III, § 301, 54 Stat. 857.) TRANSFER OF FUNCTIONS All executive and administrative functions of the Securities and Exchange Commission were, with certain exceptions, transferred to the Chairman of such Commission, with authority vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by 1950 Reorg. Plan No. 10, § 1, 2, eff. May 24, 1950, 15 F. R. 3175, 64 Stat. 1265, set out in note under section 78d of this title. CROSS REFERENCES Prohibitions unless a registration statement is in effect, see section 77e (a) of this title. Suspending effective date of, suspending for specified period, or withdrawing of registration of security for noncompliance with Securities Exchange Act of 1934, see section 78s of this title. Trust Indenture Act of 1939 Qualification of indenture, application for, see section 77ggg of this title. Refusal orders, see section 77eee of this title. RULES OF PRACTICE Rules of practice before the Securities Exchange Commission are set out following section 78u of this title. §77i. Court review of orders. (a) Any person aggrieved by an order of the Commission may obtain a review of such order in the Court of Appeals of the United States, within any circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or be set aside in whole or in part. A copy of such petition shall be forthwith served upon the Commission, and thereupon the Commission shall certify and file in the court a transcript of the record upon which the order complained of was entered. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission. The finding of the Commission as to the facts, if supported by evidence, shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the hearing before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of the original order. The jurisdiction of the court shall be exclusive and its judgment and decree, affirming, modifying, or setting aside, in whole or in part, any order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in sections 346 and 347 of Title 28. (b) The commencement of proceedings under subsection (a) of this section shall not, unless specifically ordered by the court, operate as a stay of the Commission's order. (May 27, 1933, ch. 38, title I, § 9, 48 Stat. 80; June 7, 1934, ch. 426, 48 Stat. 926; June 25, 1948, ch. 646, § 32 (a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107.) REFERENCES IN TEXT Sections 346 and 347 of Title 28, referred to in subsection (a), were repealed by act June 25, 1948, ch. 646, § 39, 62 Stat. 992, eff. Sept. 1, 1948, and are now covered by section 1254 of Title 28, Judiciary and Judicial Procedure. CHANGE OF NAME Act June 25, 1948, as amended by act May 24, 1949, substituted "court of appeals" in lieu of “circuit court of appeals". TRANSFER OF FUNCTIONS All executive and administrative functions of the Securities and Exchange Commission were, with certain exceptions, transferred to the Chairman of such Commission, with authority vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by 1950 Reorg. Plan No. 10, §§ 1, 2, eff. May 24, 1950, 15 F. R. 3175, 64 Stat. 1265, set out out in note under section 78d of this title. CROSS REFERENCES Court review of orders under Investment Advisers Act of 1940, see section 80b-13 of this title. Investment Company Act of 1940, see section 80a-42 of this title. Public Utility Holding Company Act of 1935, see section 79x of this title. Securities and Exchange Act of 1934, see section 78y of this title. Trust Indenture Act of 1939, see section 77vvv of this title. |