SEC. 10.INFORMATION REQUIRED IN PROSPECTUS说明书中要求的内容和资料

 (a) Except to the extent otherwise permitted or required pursuant to this subsection or subsections (c), (d), or (e)—

(1) a prospectus relating to a security other than a security issued by a foreign government or political subdivision thereof, shall contain the information contained in the registration statement, but it need not include the documents referred to in paragraphs (28) to (32), inclusive, of schedule A;

(2) a prospectus relating to a security issued by a foreign government or political subdivision thereof shall contain the information contained in the registration statement, but it need not include the documents referred to in paragraphs (13) and (14) of schedule B;

(3) notwithstanding the provisions of paragraphs (1) and (2) of this subsection (a) when a prospectus is used more than nine months after the effective date of the registration statement, the information contained therein shall be as of a date not more than sixteen months prior to such use, so far as such information is known to the user of such prospectus or can be furnished by such user without unreasonable effort or expense;

第１０节(ａ)除非根据本小节或第(ｃ)、(ｄ)或(ｅ)小节另外允许或规定，否则——

(１)与非外国政府或其政治机构发行的证券有关的说明书应含有在这注册报告书中包括的

内容，但不必包括在表Ａ中第(２８)到第(３２)段中指出的文件；

(２)与外国政府或其政治机构发行的证券有关的说明书应含有在注册报告书中包括的内容，

但不必包括在表Ｂ第(１３)和(１４)段中提到的文件；

(３)尽管在本(ａ)小节第(１)和(２)段中已有规定，但在注册报告书生效日后，说明书的使

用超过了九个月，只要其中的内容仍为该说明书的使用者所熟悉，或可被这些使用者在没有不合理的努力或代价的情况下提供，则其中包括的内容应是在使用前不超过十六个月的信息；

 

(4) there may be omitted from any prospectus any of the information required under this subsection (a) which the Commission may by rules or regulations designate as not being necessary or appropriate in the public interest or for the protection of investors.

允许在任何说明书中删去在本(ａ)小节中规定的、但委员会根据条例或规则认为是在公

众利益或保护投资者方面并非必要或适当的内容。

 

(b) In addition to the prospectus permitted or required in subsection (a), the Commission shall by rules or regulations deemed necessary or appropriate in the public interest or for the protection of investors permit the use of a prospectus for the purposes of subsection (b)(1) of section 5 which omits in part or summarizes information in the prospectus specified in subsection (a). A prospectus

permitted under this subsection shall, except to the extent the Commission by rules or regulations deemed necessary or appropriate in the public interest or for the protection of investors otherwise provides, be filed as part of the registration statement but shall not be deemed a part of such registration statement for the purposes of section 11. The Commission may at any time issue an order preventing or suspending the use of a prospectus permitted under this subsection (b), if it has reason to believe that such prospectus has not been filed (if required to be filed as part of the registration statement) or includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which such prospectus is or is to be used, not misleading. Upon issuance of an order under this subsection, the Commission shall give notice of the issuance of such order and opportunity for hearing by personal service or the sending of confirmed telegraphic notice. The Commission shall vacate or modify the order at any time for good cause or if such prospectus has been filed or amended in accordance with such order.

除在(ａ)小节中允许或规定的说明书外，委员会应根据被认为在公众利益或保护投资者方面是必要或合适的那些条例或规则，允许使用那种因第５节第(ｂ)(１)小节目的，而在(ａ)

小节中规定的说明书中部分地省略或以概括形式省略了一些内容的说明书。除非委员会根据被认为在公众利益或保护投资者方面是必要或适当的条例或规则作出另外规定，在本小节中允许的说明书应当作为注册报告书的一部分而提交，但它不应被看作是因第１１节目的而成为该注册报告书的一部分。如果委员会有理由相信该说明书未予提交(如果规定应作为注册报告书一部分提交)、或包括了对重大事实的任何不真实报告或漏报了规定应报或是漏报了制作报告书所必要的以便在使用或将使用该说明书时不致被误解的重大事实，委员会则可在任何时候发布命令防止或终止使用根据本(ｂ)小节规定允许使用的说明书。关于根据本小节发布命令一事，委员会应派人或发出确认电报对发布命令或听证机会给予通知。委员会可在有正当理由或该说明书在根据该命令被提交或修订时随时取消或修改该命令。

 

(c) Any prospectus shall contain such other information as the Commission may by rules or regulations require as being necessary or appropriate in the public interest or for the protection of investors.

(d) In the exercise of its powers under subsections (a), (b), or (c), the Commission shall have authority to classify prospectuses according to the nature and circumstances of their use or the nature of the security, issue, issuer, or otherwise, and, by rules and regulations and subject to such terms and conditions as it shall specify therein, to prescribe as to each class the form and contents which it may find appropriate and consistent with the public interest and the protection of investors.

(e) The statements or information required to be included in a prospectus by or under authority of subsections (a), (b), (c), or (d), when written, shall be placed in a conspicuous part of the prospectus and, except as otherwise permitted by rules or regulations, in type as large as that used generally in the body of the prospectus.

(ｃ)任何说明书都应包括委员会以条例或规则形式所要求的、在公众利益或保护投资者等方面是必要的或适当的其它有关内容。

(ｄ)在根据第(ａ)、(ｂ)或(ｃ)小节的规定行使其权力时，委员会应有权力依据说明书性质、

使用背景或证券、发行、发行人或其它方面的特性，并以条例和规则形式并服从其中规定的有关条款和条件去划分说明书类别，对每种类别规定其形式和内容，这些在公众利益和保护投资者方面都应是适当的和一致的。

(ｅ)按第(ａ)、(ｂ)、(ｃ)或(ｄ)小节权限规定应包括在说明书中的报告书或信息资料，在

形成文字时，应当被置于说明书的重要部位，并且，除非另有规定或规则允许，否则应采用说明书主体一般所使用的字型。

 

(f) In any case where a prospectus consists of a radio or television broadcast, copies thereof shall be filed with the Commission under such rules and regulations as it shall prescribe. The Commission may by rules and regulations require the filing with it of forms and prospectuses used in connection with the offer or sale of securities registered under this title.

在任何情况下，当说明书中包括无线电报或电视广播的内容时，该说明书的副本应根据有关条例和规则中的要求提交委员会。委员会可以以条例或规则形式要求提交用于发行和出售按该篇注册的证券的格式和说明书。

 

SEC. 11. CIVIL LIABILITIES ON ACCOUNT OF FALSE REGISTRATION STATEMENT

对错误注册报告书的民主权利

 

(a) In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security (unless it is proved that at the time of such acquisition he knew of such untruth or omission) may, either at law or in equity, in any court of competent jurisdiction, sue—

第１１节(ａ)当注册报告书的任何部分在生效时含有对重大事实的不真实陈述或漏报了规定应报的或漏报了为使该报告书不至被误解所必要的重大事实时，任何获得这种证券的人(除非被证明在获取证券时，他已知这种不真实或漏报情况)都可以根据法律、或平衡法在任何具有合法管辖权的法院提起诉讼——

 

(1) every person who signed the registration statement;

(2) every person who was a director of (or person performing similar functions) or partner in, the issuer at the time of the filing of the part of the registration statement with respect to which his liability is asserted;

(3) every person who, with his consent, is named in the registration statement as being or about to become a director, person performing similar functions or partner;

(4) every accountant, engineer, or appraiser, or any person whose profession gives authority to a statement made by him, who has with his consent been named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, report, or valuation, which purports to have been prepared or certified by him;

(１)向任何签署了该注册报告书的每一个人；

(２)在发行人发出表明其责任的注册报告书的那部分时，向是其董事(或履行类似职能的人)

或合伙人的每一个人；

(３)向经其同意被在注册报告书中指名作为或将成为董事、履行类似职能的人，合伙人的每

一个人；

(４)向每一会计师、工程师或鉴定人或其职业给予其权力可做陈述的每一个人。这些人，经

其本人同意，曾因准备或核实了注册报告书的一部分，或因准备或核实了被用于注册报告书的有关的一份报告或评价书而被列入名单，对于他们在注册报告书中、有关的报告书中或评价书中所做的陈述声明是由他们准备或核实的。

 

(5) every underwriter with respect to such security. If such person acquired the security after the issuer has made generally available to its security holders an earning statement covering a period of at least twelve months beginning after the effective date of the registration statement, then the right of recovery under this subsection shall be conditioned on proof that such person acquired the security relying upon such untrue statement in the registration statement or relying upon the registration statement and not knowing of such omission, but such reliance may be established without proof of the reading of the registration statement by such person.

(b) Notwithstanding the provisions of subsection (a) no person, other than the issuer, shall be liable as provided therein who shall sustain the burden of proof—

(1) that before the effective date of the part of the registration statement with respect to which his liability is asserted (A) he had resigned from or had taken such steps as are permitted by law to resign from, or ceased or refused to act in, every office, capacity, or relationship in which he was described in the registration statement as acting or agreeing to act, and (B) he had advised the Commission and the issuer in writing that he had taken such action and that he would not be responsible for such part of the registration statement; or

(５)与该证券有关的每一个包销人。如果这类人是在发行人使其证券持有人普遍得到其注册报告书生效日后，开始的至少１２个月时间的收益计算书之后得到该证券，则根据本小节，追索权应具有下述条件，即证明该人是依据注册报告书中的不真实报告，或是依据了该注册报告书但不了解其漏报情况而获得该证券的，但这种依据可在不必证明该人阅读了注册报告书基础上建立。

(ｂ)尽管有第(ａ)小节的规定，但除发行人以外的其他人不应负有其中所规定的责任，而应

坚持下述举证责任——

(１)在注册报告书中有关其责任陈述部分生效日前(Ａ)已经或在法律允许的情况下采取了

步骤辞去或终止或拒绝其办公室工作、职位或在注册报告书中被规定由其起作用或同意由其起作用的那些关系；(Ｂ)他已经以书面形式通知委员会或发行人，他已采取这类行动，并且他对注册报告书的这一部分将没有责任；或

 

(2) that if such part of the registration statement became effective without his knowledge, upon becoming aware of such fact he forthwith acted and advised the Commission, in accordance with paragraph (1), and, in addition, gave reasonable public notice that such part of the registration statement had become effective without his knowledge; or

(3) that (A) as regards any part of the registration statement not purporting to be made on the authority of an expert, and not purporting to be a copy of or extract from a report or valuation of an expert, and not purporting to be made on the authority of a public official document or statement, he had, after reasonable investigation, reasonable ground to believe and did believe, at the time such part of the registration statement became effective, that the statements therein were true and that there was no omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (B) as regards any part of the registration statement purporting to be made upon his authority as an expert or purporting to be a copy of or extract from a report or valuation of himself as an expert,

(２)在其不知道情况下，注册报告书的这一部分生效。知道了这一事实，他随即根据第(１)

段规定采取了行动，并通知了委员会，此外还给予了适当的公开通告，说明注册报告书的这一部分是在他不知道的情况下生效的；或

(３)(Ａ)如果注册报告书的某一部分据说不是由一专家根据其权威制定的，不是某专家报告

或评价书的副本或摘录，不是根据有权威的公开官方文件或报告制定的，则关于注册报告书的这一部分，他经过适当调查，在注册报告书生效时，有理由认为，并且确实认为，其中的陈述是真实的，且没有漏报按规定其中应报的或使其中的陈述不至被误解所必要的重大事实；(Ｂ)如果注册报告书的某一部分据说是根据其作为专家的权威而制定的，或是他本人(作为专家)的报告或评价书的副本或摘录，则关于注册报告书的这一部分：

 

(i) he had, after reasonable investigation, reasonable ground to believe and did believe, at the time such part of the registration statement became effective, that the statements therein were true and that there was no omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or

(ii) such part of the registration statement did not fairly represent his statement as an expert or was not a fair copy of or extract from his report or valuation as an expert; and (C) as regards any part of the registration statement purporting to be made on the authority of an expert (other than himself) or purporting to be a copy of or extract from a report or valuation of an expert (other than himself), he had no reasonable ground to believe and did not believe, at the time such part of the registration statement became effective, that the statements therein were untrue or that there was an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that such part of the registration statement did not fairly represent the statement of the expert or was not a fair copy of or extract from the report or valuation of the expert; and (D) as regards any part of the registration statement purporting to be a statement made by an official person or purporting to be a copy of or extract from a public official document, he had no reasonable ground to believe and did not believe, at the time such part of the registration statement became effective, that the statements therein were untrue, or that there was an ommission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that such part of the registration statement did not fairly represent the statement made by the official person or was not a fair copy of or extract from the public official document.

(ｉ)经过适当调查后，在注册报告书生效时，他具有适当的理由认为，并且确实认为，其中的陈述是真实的，且没有漏报按规定应报或使其中的陈述不至被误解所必要的重要事实，或(ｉｉ)注册报告书的该部分未能公正地代表其作为专家的陈述、或不是其作为专家的报告或评价的完满的副本或摘录；及(Ｃ)如果注册报告书的某一部分据说是由一专家(非他本人)根据其权威而制作，或是一专家(非他本人)的报告或评价书的副本 或摘录，则关于注册报告书的这一部分，在生效时，他没有适当的理由认为，且确实不认为其中的陈述是不真实的或存在对规定其中应报或是使其陈述不至被误解所必要的重大事实的漏报，或注册报告书的该部分并未清楚地反映该专家的陈述，或并非是该专家报告或评价书的完整的副本或摘录；(Ｄ)如果注册报告书的某一部分据说是一官方人士的报告，或是一公开的官方文件的副

本或摘录，关于注册报告书的这一部分，在生效时，他没有适当的理由认为，且确实不认为，其中的陈述是不真实的，或存在对规定其中应报的或使其中的陈述不至被误解所必要的重大事实的漏报，或注册报告书该部分并未清楚地代表该官方人士的陈述或并非是公开官方文件的完整的副本或摘录。

 

(c) In determining, for the purpose of paragraph (3) of subsection (b) of this section, what constitutes reasonable investigation and reasonable ground for belief, the standard of reasonableness shall be that required of a prudent man in the management of his own property.

在为本节第(ｂ)小节第(３)段目的而决定什么是构成令人信服的合理调查和正当理由的标准时，合理的标准应当是精明人在管理自己的财产时所需要的标准。

 

(d) If any person becomes an underwriter with respect to the security after the part of the registration statement with respect to which his liability is asserted has become effective, then for the purposes of paragraph (3) of subsection (b) of this section such part of the registration statement shall be considered as having become effective with respect to such person as of the time when he became an underwriter.

如果任何人在注册报告书有关表现其责任的那部分生效后成为该证券的包销商，则为了本节第(ｂ)小节第(３)段的目的，注册报告书该部分应当被看作是在他成为包销商时生效的：

 

(e) The suit authorized under subsection (a) may be to recover such damages as shall represent the difference between the amount paid for the security (not exceeding the price at which the security was offered to the public) and (1) the value thereof as of the time such suit was brought, or (2) the price at which such security shall have been disposed of in the market before suit, or (3) the price at which such security shall have been disposed of after suit but before judgment if such damages shall be less than the damages representing the difference between the amount paid for the security (not exceeding the price at which the security was offered to the public) and the value thereof as of the time such suit was brought: Provided, That if the defendant proves that any portion or all of such damages represents other than the depreciation in value of such security resulting from such part of the registration statement, with respect to which his liability is asserted, not being true or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading, such portion of or all such damages shall not be recoverable. In no event shall any underwriter (unless such underwriter shall have knowingly received from the issuer for acting as an underwriter some benefit, directly or indirectly, in which all other underwriters similarly situated did not share in proportion to their respective interests in the underwriting) be liable in any suit or as a consequence of suits authorized under subsection (a) for damages in excess of the total price at which the securities underwritten by him and distributed to the public were offered to the public. In any suit under this or any other section of this title the court may, in its discretion, require an undertaking for the payment of the costs of such suit, including reasonable attorney’s fees, and if judgment shall be rendered against a party litigant, upon the motion of the other party litigant, such costs may be assessed in favor of such party litigant (whether or not such undertaking has been required) if the court believes the suit or the defense to have been without merit, in an amount sufficient to reimburse him for the reasonable expenses incurred by him, in connection with such suit, such costs to be taxed in the manner usually provided for taxing of costs in the court in which the suit was heard.

第(ａ)小节赋予的诉讼权力可用于补偿那种能反映以下差额的损失，即：为证券而支付的金额(不超过该证券在向公众发行时的价格)与(１)在提出诉讼的时候该证券价值之差，或与(２)在诉讼前该证券被在市场上出手的价格之差，或与(３)该证券在起诉后但在判决前被处理所定的价格之差——如果该损失少于能够代表为证券所支付的金额(不超过该证券在向公众发行时的价格)和在起诉时证券的价值之差这一损失的话：这是以下述假设为前提，即如果被告证明这种损失的任何部分或全部不是代表由于注册报告书表明其责任的部分不真实、或漏报了规定其中应报或使其中的陈述不至被误解的重大事实所引致的该证券的贬值，损失的这部分或全部不应予以补给。任何包销商(除非已知该包销商作为包销商从发行人那里直接或间接得到好处，而所有其它在类似情况下的包销商并未按其在包销中相应利益分享这一好处)在任何情况下对由第(ａ)小节所赋予权力的任何诉讼或诉讼的后果——对超出由其包销并分配于公众的全部价格的损失都不负有责任。根据本篇本节或任何其它各节发生的起诉中，法院可根据自己的决定以其权力要求包销商支付该诉讼费用、包括合理的律师费用。如果应根据另一个团体诉讼当事人的动议对一个团体诉讼当事人宣布判决，则该费用应以有利于该诉讼当事人的方式估价(无论是否要求这样做)——如果法院相信该诉讼或辩护没有法律意义——即以足够补偿其在有关本诉讼中支付的合理支出的数额，这些费用将被以通常规定的听取诉讼后法院征税的方式来征税。

 

(f)(1) Except as provided in paragraph (2), all or any one or more of the persons specified in subsection (a) shall be jointly and severally liable, and every person who becomes liable to make any payment under this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment, unless the person who has become liable was, and the other was not, guilty of fraudulent misrepresentation.

(2)(A) The liability of an outside director under subsection (e) shall be determined in accordance with section 21D(f) of the Securities Exchange Act of 1934.

(B) For purposes of this paragraph, the term ‘‘outside director’’ shall have the meaning given such term by rule or regulation of the Commission. (g) In no case shall the amount recoverable under this section exceed the price at which the security was offered to the public.

(ｆ)在第(ａ)小节中规定的所有人或任何一个人或更多人应共同或分别负有责任，并且每一个根据本节有责任进行任何支付的人，在有合同存在，并且是在分别起诉的情况下可从有责任进行同样支付的任何人那里得到对其代价的补偿，除非负有责任的这个人犯有欺诈性陈述罪，而其他人没有。

(ｇ)在任何情况下根据本节所得到的补偿都不应超过证券向公众发行时的价格。

 

SEC. 12.CIVIL LIABILITIES ARISING IN CONNECTION WITH PROSPECTUSES AND COMMUNICATIONS

有关说明书和通讯引起的民事责任

 

 (a) IN GENERAL.—Any person who—第１２节任何人如果——

(1) offers or sells a security in violation of section 5, or

(2) offers or sells a security (whether or not exempted by the provisions of section 3, other than paragraphs (2) and (14) of subsection (a) thereof), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable, subject to subsection (b), to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.

(b) LOSS CAUSATION.—In an action described in subsection (a)(2), if the person who offered or sold such security proves that any portion or all of the amount recoverable under subsection (a)(2)

represents other than the depreciation in value of the subject security resulting from such part of the prospectus or oral communication, with respect to which the liability of that person is asserted,

not being true or omitting to state a material fact required to be stated therein or necessary to make the statement not misleading, then such portion or amount, as the case may be, shall not be recoverable.

 (１)在违反第５节情况下发行或出售证券，或

(２)通过利用州际贸易中任何交通或通讯手段或工具，或利用邮寄手段或工具，或利用说明

书或口头交流——但其中包括重大事实的不真实陈述或漏报了为使在制作报告书情况下该陈述不至被误解所必要的重大事实(购买人不了解其不真实或漏报)来发行或出售证券(无论是否获得第五节第(ａ)小节第(２)段外的豁免)，并且将不承受对其所不了解，且在适当的关注以后仍不了解这种不真实或漏报的举证责任，则他就应对从他手中买到这种证券的人负有责任，后者可以在任何具有合法管辖权的法院诉诸法律或平衡法，以补偿为该证券所支付的代价，方法是：用其利息减去以该证券投标方式得到的任何收入，如果他不再持有该证券，则补偿其损失。

 

SEC. 13. LIMITATION OF ACTIONS诉讼时效

No action shall be maintained to enforce any liability created under section 11 or section 12(a)(2) unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 12(a)(1), unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section 11 or section 12(a)(1) more than three years after the security was bona fide offered to the public, or under section 12(a)(2) more than three years after the sale.

第１３节除非在发现不真实报告或漏报后一年之内，或在适当的努力做出上述发现之后提

起诉讼，否则，就不应依据第(１１)节或第(１２)节(２)维持任何诉讼以履行所发生的责任，或者，如果该诉讼是为了履行第１２节(１)中规定的责任，则除非是在违反规定根据其在一年之内起诉，否则就不应维持诉讼。在证券被以真实价值向公众发行三年之后，不能提起任何为履行第１１节或第１２(１)节中的责任的诉讼，关于第１２(２)节，则是在证券出售三年之后。

 

SEC. 14.CONTRARY STIPULATIONS VOID反面规定无效

 Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this title or of the rules and regulations of the Commission shall be void.

第１４节使获得任何证券的任何人不遵守本篇或委员会条例和规则的任何规定的任何条

款、款项，或规定都是无效的。

 

SEC. 15.LIABILITY OF CONTROLLING PERSONS有控制力的人的责任

 Every person who, by or through stock ownership, agency, or otherwise, or who, pursuant to or in connection with an agreement or understanding with one or more other persons by or through stock ownership, agency, or otherwise, controls any person liable under section 11 or 12, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.

每个利用或通过股票所有关系、代理机构或其它途径，或每一个根据协议或理解或因这种关系与一个或更多其他人通过股票所有关系、代理机构或其它途径控制那些根据第１１节或第１２节应负有责任的任何人的人，同样也应与这些被控制人在同等程度上共同地或分别地对那些被控制人对其负有责任的人负责任，但在控制人由于不了解或没有适当理由认为那些作为理由而说被控制人是有责任的那些事实的存在的情况下可以例外。

 

SEC. 16. ADDITIONAL REMEDIES; LIMITATION ON REMEDIES. 追加补偿

(a) REMEDIES ADDITIONAL.—Except as provided in subsection (b), the rights and remedies provided by this title shall be in addition to any and all other rights and remedies that may exist at law or in equity.

本篇规定的权力和补偿应是对任何所有其它可能存在于其它法律或平衡法的权力和补偿的补充。

 

(b) CLASS ACTION LIMITATIONS.—No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging—

(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or

(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.

(c) REMOVAL OF COVERED CLASS ACTIONS.—Any covered class action brought in any State court involving a covered security, as set forth in subsection (b), shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b).

(d) PRESERVATION OF CERTAIN ACTIONS.—

(1) ACTIONS UNDER STATE LAW OF STATE OF INCORPORATION.—

(A) ACTIONS PRESERVED.—Notwithstanding subsection (b) or (c), a covered class action described in subparagraph (B) of this paragraph that is based upon the statutory or common law of the State in which the issuer is incorporated (in the case of a corporation) or organized (in the case of any other entity) may be maintained in a State or Federal court by a private party. (B) PERMISSIBLE ACTIONS.—A covered class action is described in this subparagraph if it involves—

(i) the purchase or sale of securities by the issuer or an affiliate of the issuer exclusively from or to holders of equity securities of the issuer; or

(ii) any recommendation, position, or other communication with respect to the sale of securities of the issuer that—

(I) is made by or on behalf of the issuer or an affiliate of the issuer to holders of equity securities

of the issuer; and (II) concerns decisions of those equity holders with respect to voting their securities, acting in response to a tender or exchange offer, or exercising dissenters’ or appraisal rights.

(2) STATE ACTIONS.—

(A) IN GENERAL.—Notwithstanding any other provision of this section, nothing in this section may be construed to preclude a State or political subdivision thereof or a State pension plan from bringing an action involving a covered security on its own behalf, or as a member of a class comprised solely of other States, political subdivisions, or State pension plans that are named plaintiffs, and that have authorized participation, in such action.

(B) STATE PENSION PLAN DEFINED.—For purposes of this paragraph, the term ‘‘State pension plan’’ means a pension plan established and maintained for its employees by the government of the State or political subdivision thereof, or by any agency or instrumentality thereof.

(3) ACTIONS UNDER CONTRACTUAL AGREEMENTS BETWEEN ISSUERS AND INDENTURE TRUSTEES.—Notwithstanding subsection (b) or (c), a covered class action that seeks to enforce a contractual agreement between an issuer and an indenture trustee may be maintained in a State or Federal court by a party to the agreement or a successor to such party.

(4) REMAND OF REMOVED ACTIONS.—In an action that has been removed from a State court pursuant to subsection (c), if the Federal court determines that the action may be maintained

in State court pursuant to this subsection, the Federal court shall remand such action to such State court.

(e) PRESERVATION OF STATE JURISDICTION.—The securities commission (or any agency or office performing like functions) of any State shall retain jurisdiction under the laws of such State to investigate and bring enforcement actions.

(f) DEFINITIONS.—For purposes of this section, the following definitions shall apply:

(1) AFFILIATE OF THE ISSUER.—The term ‘‘affiliate of the issuer’’ means a person that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with, the issuer.

(2) COVERED CLASS ACTION.—

(A) IN GENERAL.—The term ‘‘covered class action’’ means—

(i) any single lawsuit in which—

(I) damages are sought on behalf of more than 50 persons or prospective class members, and questions of law or fact common to those persons or members of the prospective class, without reference to issues of individualized reliance on an alleged misstatement or omission, predominate over any questions affecting only individual persons or members; or (II) one or more named parties seek to recover damages on a representative basis on behalf of themselves and other unnamed parties similarly situated, and questions of law or fact common to those persons or members of the prospective class predominate over any questions affecting only individual persons or members; or

(ii) any group of lawsuits filed in or pending in the same court and involving common questions of law or fact, in which—

(I) damages are sought on behalf of more than 50 persons; and

(II) the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose.

(B) EXCEPTION FOR DERIVATIVE ACTIONS.— Notwithstanding subparagraph (A), the term ‘‘covered class action’’ does not include an exclusively derivative action brought by one or more shareholders on behalf of a corporation.

(C) COUNTING OF CERTAIN CLASS MEMBERS.—For purposes of this paragraph, a corporation, investment company, pension plan, partnership, or other entity, shall be treated as one person or prospective class member, but only if the entity is not established for the purpose of participating in the action.

(D) RULE OF CONSTRUCTION.—Nothing in this paragraph shall be construed to affect the discretion of a State court in determining whether actions filed in such court should be joined, consolidated, or otherwise allowed to proceed as a single action.

(3) COVERED SECURITY.—The term ‘‘covered security’’ means a security that satisfies the standards for a covered security specified in paragraph (1) or (2) of section 18(b) at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred, except that such term shall not include any debt security that is exempt from registration under this title pursuant to rules issued by the Commission under section 4(2).

 

SEC. 17.FRAUDULENT INTERSTATE TRANSACTIONS欺诈性州际交易

 (a) It shall be unlawful for any person in the offer or sale of any securities or any security-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act) by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly—

(1) to employ any device, scheme, or artifice to defraud, or

(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or

(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.

(ａ)任何人在发行或出售任何证券时，通过利用任何在州际贸易中的交通或通讯手段或工具，或通过利用邮政手段，直接或间接从事下述活动都是违法的——

(１)使用任何装备、设置或人为方法进行欺骗，或

(２)通过对重大事实的不真实报告或漏报在制作报告时能使报告不至被误解所必要的重大 事实，以获得金钱或财产，或

(３)参与那些从事或将从事对购买人进行欺诈或欺骗的交易、活动或业务程序。

 

(b) It shall be unlawful for any person, by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, to publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service, or communication which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received, directly or indirectly, from an issuer, underwriter, or dealer, without fully disclosing the receipt, whether past or prospective, of such consideration and the amount thereof.

(c) The exemptions provided in section 3 shall not apply to the provisions of this section.

(d) The authority of the Commission under this section with respect to security-based swap agreements (as defined in section 206B of the Gramm-Leach-Bliley Act) shall be subject to the restrictions and limitations of section 2A(b) of this title.

(ｂ)任何人通过利用州际贸易中的交通或通讯手段或工具、或利用邮政，以出版、公布、或传播任何通告、通知、广告、报纸、文章、信件、投资服务或那些并非意在提供证券销售，但却描述了直接或间接地从发行人、包销人或交易商那里得到或将得到的对这种证券的对价的通讯，但却没有充分披露这种接受的对价——无论过去的还是预期的——及其数量。

(ｃ)第３节中规定的豁免不应适用于本节条款。

 

SEC. 18. EXEMPTION FROM STATE REGULATION OF SECURITIES OFFERINGS.

各州对证券的管理

(a) SCOPE OF EXEMPTION.—Except as otherwise provided in this section, no law, rule, regulation, or order, or other administrative action of any State or any political subdivision thereof—

本篇任何内容都不应影响美国任何州或准州、或哥伦比亚特区证券委员会(或任何履行类似职能的机构或机关)对任何证券或任何人的司法管理权。

 

(1) requiring, or with respect to, registration or qualification of securities, or registration or qualification of securities transactions, shall directly or indirectly apply to a security that—

(A) is a covered security; or

(B) will be a covered security upon completion of the transaction;

(2) shall directly or indirectly prohibit, limit, or impose any conditions upon the use of—

(A) with respect to a covered security described in subsection

(b), any offering document that is prepared by or on behalf of the issuer; or

(B) any proxy statement, report to shareholders, or other disclosure document relating to a covered security or the issuer thereof that is required to be and is filed with the Commission or any national securities organization registered under section 15A of the Securities Exchange Act of 1934, except that this subparagraph does not apply to the laws, rules, regulations, or orders, or other administrative actions of the State of incorporation of the issuer; or

 

(3) shall directly or indirectly prohibit, limit, or impose conditions, based on the merits of such offering or issuer, upon the offer or sale of any security described in paragraph (1).

(b) COVERED SECURITIES.—For purposes of this section, the following are covered securities:

(1) EXCLUSIVE FEDERAL REGISTRATION OF NATIONALLY TRADED SECURITIES.—A security is a covered security if such security is—

(A) listed, or authorized for listing, on the New York Stock Exchange or the American Stock Exchange, or listed, or authorized for listing, on the National Market System of the Nasdaq Stock Market (or any successor to such entities);

(B) listed, or authorized for listing, on a national securities exchange (or tier or segment thereof) that has listing standards that the Commission determines by rule (on its own initiative or on the basis of a petition) are substantially similar to the listing standards applicable to securities described in subparagraph (A); or

(C) is a security of the same issuer that is equal in seniority or that is a senior security to a security described in subparagraph (A) or (B).

(2) EXCLUSIVE FEDERAL REGISTRATION OF INVESTMENT COMPANIES.—A security is a covered security if such security is a security issued by an investment company that is registered,

or that has filed a registration statement, under the Investment Company Act of 1940.

(3) SALES TO QUALIFIED PURCHASERS.—A security is a covered security with respect to the offer or sale of the security to qualified purchasers, as defined by the Commission by rule.

In prescribing such rule, the Commission may define the term ‘‘qualified purchaser’’ differently with respect to different categories of securities, consistent with the public interest and the

protection of investors.

(4) EXEMPTION IN CONNECTION WITH CERTAIN EXEMPT OFFERINGS.—

A security is a covered security with respect to a transaction that is exempt from registration under this title pursuant to—

(A) paragraph (1) or (3) of section 4, and the issuer of such security files reports with the Commission pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934;

(B) section 4(4);

(C) section 3(a), other than the offer or sale of a security that is exempt from such registration pursuant to paragraph (4), (10), or (11) of such section, except that a municipal security that is exempt from such registration pursuant to paragraph (2) of such section is not a covered security with respect to the offer or sale of such security in the State in which the issuer of such security is located; or

(D) Commission rules or regulations issued under section 4(2), except that this subparagraph does not prohibit a State from imposing notice filing requirements that are substantially similar to those required by rule or regulation under section 4(2) that are in effect on September 1, 1996.