ABCDEFGHIJKLMNOPQRS - 中欧法学院旧站.doc

2014-2015学年 证券法 授课人： 朱伟一 教授 目录 简介 证券的定义 投资合同 非法集资 理财产品 保险产品 发行 首次公开发行 非公开发行 承销售商 资产证券化 理财 证券投资基金 理财产品/信托产品 投资顾问与受信责任 合格境外机构投资者 证券公司 证券公司 信托公司 经纪业务 创新业务 直接投资 交易 股权分置改革 内幕交易 操纵 并购 金融期货交易 监管 证券监管机构 自我监管组织 公司治理 董事责任 高官薪酬 中介机构 会计事务所 律师事务所 资信评级机构 民事责任 简介 公司上市路线图 中国资本市场路线图 证券的定义 投资合同 SEC V. EDWARDS (02-1196) 540 U.S. 389 (2004)300 F.3d 1281, reversed and remanded. Justice O’Connor delivered the opinion of the Court. “Opportunity doesn’t always knock … sometimes it rings.” App. 113 (ETS Payphones promotional brochure). And sometimes it hangs up. So it did for the 10,000 people who invested a total of $300 million in the payphone sale-and-leaseback arrangements touted by respondent under that slogan. The Securities and Exchange Commission (SEC) argues that the arrangements were investment contracts, and thus were subject to regulation under the federal securities laws. In this case, we must decide whether a moneymaking scheme is excluded from the term “investment contract” simply because the scheme offered a contractual entitlement to a fixed, rather than a variable, return. I Respondent Charles Edwards was the chairman, chief executive officer, and sole shareholder of ETS Payphones, Inc. (ETS).*ETS, acting partly through a subsidiary also controlled by respondent, sold payphones to the public via independent distributors. The payphones were offered packaged with a site lease, a 5-year leaseback and management agreement, and a buyback agreement. All but a tiny fraction of purchasers chose this package, although other management options were offered. The purchase price for the payphone packages was approximately $7,000. Under the leaseback and management agreement, purchasers received $82 per month, a 14% annual return. Purchasers were not involved in the day-to-day operation of the payphones they owned. ETS selected the site for the phone, installed the equipment, arranged for connection and long-distance service, collected coin revenues, and maintaine