LAWFIRM.ru

Господа,

вопрос от блондинки.

Есть кипрское llc, чей уставный капитал, естественно, разделён на shares.
Права по ним подтверждаются сертификатами.

С точки зрения ФСФР (и российского права в принциппе) это акции или доли?

Ту модераторс:

уверена, что этот вопрос здесь обсуждался, но я, блондика, не нашла.
Не бейте больно!

LLC Units: Are They “Securities”?

A similar question applies to membership interests in limited liability companies. Recently, a court had occasion to face the issue, and held that membership interests in one limited liability company, NCS Technologies Company, LLC, are not securities for purposes of federal law. Great Lakes Chemical Corp. v. Monsanto Co., 96 F. Supp. 2d 376 (D. Del. 2000).

Great Lakes Chemical Corporation purchased 100 percent of the membership interests in NCS Technologies Company, LLC, from Monsanto Corporation and its wholly owned subsidiary, Suite Technologies (collectively, Defendants). Among other charges, Great Lakes alleged that Defendants violated Rule 10b of the Securities Act of 1933 by making material misrepresentations in failing to disclose material facts in connection with the sale of securities. Defendants countered that the membership interests were not securities, thus, not subject to federal security laws. The court analyzed the membership interests in NSC to determine that they were “investment contracts” within the meaning of section 2a-1 of the Securities Act of 1933. The court applied the Howey test as established by the United States Supreme Court in SEC v. W.J. Howey Co., 328 U.S. 293 (1946). To be an investment contract under the test, there must be (1) an investment of money, (2) in a common enterprise, and (3) with profits to come solely from the efforts of others.

Both parties agreed that the first element of the test, an investment of money, was satisfied. The court determined the second element of investment in a common enterprise was not met. In reaching this conclusion, the court looked for both horizontal commonality, which requires a pooling of investors' contribution and distribution of losses on a pro rata basis among investors, and “vertical commonality . . . [which] requires that an investor and promoter be engaged in a common enterprise, with the ‘fortunes of the investor linked with those of the promoters.”’ Id. at 389 (quoting Securities & Exchange Commission v. R.G. Reynolds Enterprises, Inc., 952 F.2d 1125, 1130 (9th Cir. 1991)). The court held that because Great Lakes purchased 100 percent of the LLC interest, neither horizontal commonality nor vertical commonality was present.

In determining the final prong of the test--that the profits come solely from the efforts of others--it is necessary to consider the structure of the particular LLC as *358 provided in its operating agreement. Great Lakes's profits did not come solely from the efforts of others because the operating agreement gave them authority to remove managers with or without cause, and to dissolve the LLC. Because Great Lakes owned 100 percent of the interest, its power to directly affect the profits of NSC was absolute. Therefore, its profits did not come solely from the efforts of others.

The court refused to make a distinction between whether the membership interest could qualify as an investment contract versus “any interest commonly known as a security.”