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transactions are usually sales under Section 102(26), but may be | exempted from the securities registration requirements by Section | 202(18). |
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| | 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). |
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| | 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." |
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| | Preorganization certificates or subscriptions are included in | this term, obviating the need for a separate definition as was | included in RUSA Section 402(13). |
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| | 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). |
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| | 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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