Section 1145 - Exemption From Securities Laws
REORGANIZATION – CHAPTER 11
Exemption From Securities Laws –Section 1145
11 USCS § 1145
(a) Except with respect to an entity that is an underwriter as defined in subsection (b) of this section, section 5 of the Securities Act of 1933 [15 USCS § 77e] and any State or local law requiring registration for offer or sale of a security or registration or licensing of an issuer of, underwriter of, or broker or dealer in, a security do not apply to--
(1) the offer or sale under a plan of a security of the debtor, of an affiliate participating in a joint plan with the debtor, or of a successor to the debtor under the plan--
(A) in exchange for a claim against, an interest in, or a claim for an administrative expense in the case concerning, the debtor or such affiliate; or
(B) principally in such exchange and partly for cash or property;
(2) the offer of a security through any warrant, option, right to subscribe, or conversion privilege that was sold in the manner specified in paragraph (1) of this subsection, or the sale of a security upon the exercise of such a warrant, option, right, or privilege;
(3) the offer or sale, other than under a plan, of a security of an issuer other than the debtor or an affiliate, if--
(A) such security was owned by the debtor on the date of the filing of the petition;
(B) the issuer of such security is--
(i) required to file reports under section 13 or 15(d) of the Securities Exchange Act of 1934 [15 USCS § 78m or 78o(d)]; and
(ii) in compliance with the disclosure and reporting provision of such applicable section; and
(C) such offer or sale is of securities that do not exceed--
(i) during the two-year period immediately following the date of the filing of the petition, four percent of the securities of such class outstanding on such date; and
(ii) during any 180-day period following such two-year period, one percent of the securities outstanding at the beginning of such 180-day period; or
(4) a transaction by a stockbroker in a security that is executed after a transaction of a kind specified in paragraph (1) or (2) of this subsection in such security and before the expiration of 40 days after the first date on which such security was bona fide offered to the public by the issuer or by or through an underwriter, if such stockbroker provides, at the time of or before such transaction by such stockbroker, a disclosure statement approved under section 1125 of this title [11 USCS § 1125], and, if the court orders, information supplementing such disclosure statement.
(b) (1) Except as provided in paragraph (2) of this subsection and except with respect to ordinary trading transactions of an entity that is not an issuer, an entity is an underwriter under section 2(11) of the Securities Act of 1933, if such entity--
(A) purchases a claim against, interest in, or claim for an administrative expense in the case concerning, the debtor, if such purchase is with a view to distribution of any security received or to be received in exchange for such a claim or interest;
(B) offers to sell securities offered or sold under the plan for the holders of such securities;
(C) offers to buy securities offered or sold under the plan from the holders of such securities, if such offer to buy is--
(i) with a view to distribution of such securities; and
(ii) under an agreement made in connection with the plan, with the consummation of the plan, or with the offer or sale of securities under the plan; or
(D) is an issuer, as used in such section 2(11) [15 USCS § 77b(11)], with respect to such securities.
(2) An entity is not an underwriter under section 2(11) of the Securities Act of 1933 [15 USCS § 77b(11)] or under paragraph (1) of this subsection with respect to an agreement that provides only for--
(A) (i) the matching or combining of fractional interests in securities offered or sold under the plan into whole interests; or
(ii) the purchase or sale of such fractional interests from or to entities receiving such fractional interests under the plan; or
(B) the purchase or sale for such entities of such fractional or whole interests as are necessary to adjust for any remaining fractional interests after such matching.
(3) An entity other than an entity of the kind specified in paragraph (1) of this subsection is not an underwriter under section 2(11) of the Securities Act of 1933 [15 USCS § 77b(11)] with respect to any securities offered or sold to such entity in the manner specified in subsection (a)(1) of this section.
(c) An offer or sale of securities of the kind and in the manner specified under subsection (a)(1) of this section is deemed to be a public offering.
(d) The Trust Indenture Act of 1939 [15 USCS §§ 77aaa et seq.] does not apply to a note issued under the plan that matures not later than one year after the effective date of the plan.
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