LD 509
pg. 34
Page 33 of 183 An Act To Adopt the Maine Uniform Securities Act Page 35 of 183
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LR 441
Item 1

 
transactions are usually sales under Section 102(26), but may be
exempted from the securities registration requirements by Section
202(18).

 
28. Section 102(28): Security: Prior Provisions: 1956 Act
Section 401(1); RUSA Section 101(16). Much of the definition in
Section 102(28), like the definitions in the 1956 Act Section
401(l) and RUSA Section 101(16), is identical to the definition
in Section 2(a)(1) of the Securities Act. State courts
interpreting the Uniform Securities Act definition of security
have often looked to interpretations of the federal definition of
security. See generally 2 Louis Loss & Joel Seligman, Security
Regulation 923-1138.19 (3d ed. rev. 1999).

 
The most recent amendments to Section 2(a)(1) of the
Securities Act of 1933 were added by the Commodities Futures
Modernization Act of 2000 which added or revised language in the
Securities Act addressing security futures and securities puts,
calls, straddles, options, or privileges. Identical language has
been included in Section 102(28) of this Act to harmonize
interpretation of the federal and state definition of a
"security." With respect to a security futures product, Section
28(a) of the Securities Exchange Act of 1934, as amended by the
Commodity Futures Modernization Act of 2000, further provides:
"No provision of any State law regarding the offer, sale or
distribution of securities shall apply to any transaction in a
security futures product, except that this sentence shall not be
construed as limiting any State antifraud law of general
applicability."

 
Preorganization certificates or subscriptions are included in
this term, obviating the need for a separate definition as was
included in RUSA Section 402(13).

 
Section 102(28) uses RUSA's "fractional undivided interest in
oil, gas or other mineral rights" formulation, which originated
in Section 2(a)(1) of the Securities Act of 1933, rather than the
1956 Act formulation, "certificate of interest or participation
in an oil, gas or mining title." In recent years, courts
interpreting Section 2(a)(1) of the Securities Act of 1933 have
found certain oil, gas or mineral rights to be investment
contracts (that is, securities). 2 Louis Loss & Joel Seligman,
Securities Regulation 979-982 (3d ed. rev. 1999).

 
A new sentence was added in Section 102(28)(A) referring to
certificated or uncertificated securities to indicate that the
term is intended to apply whether or not a security is evidenced
by a writing. Section 102(28)(A) is intended to reject Thomas v.
State of Tex., 65 S.W.3d 38 (Tex. Crim. App. 2001) (Under Texas
law evidence of indebtedness requires a writing).


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