1. “Securities for the Non-Securities Lawyer” Association of Corporate Counsel – America August 3, 2006 Presented by: Kurt L. Kicklighter Luce, Forward, Hamilton & Scripps LLP

2. August 3, 200637318062 Why Should You Care About Securities Law? In house counsel concerns in the private company or division of a public company Pledges of securities? Promissory notes? Owner shares? Securities brokerage/dealers?

3. August 3, 200637318063 How Do You Know You Have a Securities Issue? Stocks, bonds.... And Any “investment contract” or “risk capital” arrangement –Promissory notes –Condominium rental pool –Investment Club Memberships –Tenants in Common Interests? –Joint Venture profit participation by non-managing partner? –General partnership interest of a partner who does not actually participate in management

4. August 3, 200637318064 What laws regulate securities? Federal law –“ Disclosure” model –Securities Act of 1933 –Securities Exchange Act of 1934 –Exemptions – but not exemption from fraud claims –Website for all Federal securities statutes and rules: Securities Lawyer’s Deskbook at University of Cincinnati - http://www.law.uc.edu/CCL/xyz/sldtoc.html

5. August 3, 200637318065 What laws regulate securities? (continued) California law –“Substantive fairness” model –Corporate Securities Law of 1968, Corporations Code Sections 25000 through 25707 –Exemptions –Website for California statute: http://www.leginfo.ca.gov/cal.html; regulations (Title 10: http://www.calregs.com/linkedslice/default.asp?SP=CCR- 1000&Action=Welcome); Guide to CA Securities Law Practice, The Corporations Committee of the Business Law Section of The State Bar of California (2003).

6. August 3, 200637318066 What laws regulate securities? (continued) Blue Sky laws of other states – primarily “disclosure” obligations, not “substantive fairness.” Foreign securities laws – apply to sales to nationals and in those other jurisdictions.

7. August 3, 200637318067 Which laws apply to any particular securities transaction? Federal registration requirements: U.S., unless intrastate or foreign State law jurisdiction: Any state that touches a transaction AIM Stock Exchange –http://www.londonstockexchange.com/en- gb/products/companyservices/ourmarkets/aim/

8. August 3, 200637318068 Which laws apply to any particular securities transaction? (continued) Sarbanes-Oxley Act of 2002 Securities Act Section 18 limited pre-emption of state laws Stock Exchanges. See http://www.nasdaq.com/about/MarketPlaceRules.stm

9. August 3, 200637318069 Private Placements Securities Act Section 4(2) – “transactions by an issuer not involving any public offering” Regulation D – Clear guidance, safe harbor from registrations requirements of the Securities Act if certain requirements are met and filing is made –Accredited Investor definition: Individuals with $200,000 annual income ($300,000 jointly) or $1 million net worth; entities with $5 million; banks and other institutions; executive officers and directors of the issuer –Practice Note: If even one non-accredited investor is included in an offering a detailed private placement memo will have to be prepared for all (Note that none of these exemptions exempt the transaction from the securities fraud regulations.)

10. August 3, 2006373180610 California exemptions –25102(f): Sales to 35 plus accredited –25102(h): Sales of voting common stock in a corporation where there will be only 35 shareholders after the sale –25102(i): Sales to institutional investors – banks, pension plans, insurance companies –25102(n): Sales to “qualified” investors (similar to accredited investors) unlimited in number, by California corporation or corporation subject to Section 2115 Private Placements (continued) (Note that none of these exemptions exempt the transaction from the securities fraud regulations.)

11. August 3, 2006373180611 Securities Regulation of “brokers.” Federal definition of broker: any person engaged in the business of effecting transactions in securities for the account of others –Guide to Broker-Dealer Registration, Division of Market Regulation, U.S. Securities and Exchange Commission, December 2005 http://www.sec.gov/divisions/marketreg/bdguide.htm#II

12. August 3, 2006373180612 Securities Regulation of “brokers.” (continued) California definition of broker/dealer: Corporation Code Sections 25120 and 25230(a) California licensing of real estate agents as business brokers Federal and California “finder” exception

13. August 3, 2006373180613 Becoming “publicly” traded Securities Exchange Act Section 12(g) The 500 shareholder threshold (the in-bound regulation) The 300 shareholder threshold (the out- bound regulation)

14. August 3, 2006373180614 Securities as “security” under the UCC What is a “security” under the UCC? How is an interest perfected? How can a creditor realize on the security?

15. August 3, 2006373180615 Giving employees “securities” Stock options, California Corporations Code 25102(o), SEC Rule 701 –See Guide to California Securities Law Practice by The Corporations Committee of the Business Law Section of the State Bar of California (June 2004 printing) § 4.1 (for 25102(f)) and § 4.4 (for 25102(o))

16. August 3, 2006373180616 Restricted Stock Performance Stock Phantom Stock (Stock Appreciation Rights) Other compensation schemes? (See definition of “securities” discussion above. ) Giving employees “securities” (continued)

17. August 3, 2006373180617 Securities Arising in the M&A Context Issuance of promissory notes Hold back provisions Earn-out provisions Issuance of stock to number of owners Consider purchase of assets alternative Acceleration of stock options

18. August 3, 2006373180618 Securities arising in the Joint Venture/Investment Context Interests in joint venture are securities Registration Rights –Demand Rights –Piggyback Rights –Supremacy Clauses –“Drag Along” Rights –“Tag Along” Rights

19. August 3, 2006373180619 Securities Issues in the IPO Context SEC will review prior issuances of securities to see if appropriate exemptions apply Employee plans may have to be reviewed to determine effect of IPO on their securities Disputed employee stock options/stock rights and economic “blackmail”

20. August 3, 2006373180620 Biggest Trouble Spots for Private Companies Undocumented or misdocumented stock options Change of Control bonus arrangements Deferred compensation arrangements permitting issuance of stock Unclear agreements among owners regarding stock transfer restrictions, buy-outs, registration rights

21. August 3, 2006373180621 Biggest Trouble Spots for Private Companies (continued) Too many “private” offerings in short time periods Allowing non-“accredited” investors to purchase securities

22. “Securities for the Non-Securities Lawyer” Association of Corporate Counsel – America August 3, 2006 Presented by: Kurt L. Kicklighter Luce, Forward, Hamilton & Scripps LLP