NM Stat § 58-13C-102 (2021)
2021 New Mexico Statutes|Chapter 58 - Financial Institutions and Regulations|Article 13C - New Mexico Uniform Securities|Article 1 - General Provisions|Section 58-13C-102 - Definitions.

As used in the New Mexico Uniform Securities Act, unless the context otherwise requires: A. "agent" means an individual, other than a broker-dealer, who represents a broker-dealer in effecting or attempting to effect purchases or sales of securities or represents an issuer in effecting or attempting to effect purchases or sales of the issuer's securities, but a partner, officer or director of a broker-dealer or issuer, or an individual having a similar status or performing similar functions, is an agent only if the individual otherwise comes within the term. "Agent" does not include an individual excluded by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act; B. "bank" means: (1) a banking institution organized pursuant to the laws of the United States; (2) a member bank of the federal reserve system; (3) any other banking institution, whether incorporated or not, doing business pursuant to the laws of a state or of the United States, a substantial portion of the business of which consists of receiving deposits or exercising fiduciary powers similar to those permitted to be exercised by national banks pursuant to the authority of the comptroller of the currency pursuant to Section 1 of Public Law 87-722 (12 U.S.C. Section 92a) and that is supervised and examined by a state or federal agency having supervision over banks and that is not operated for the purpose of evading the New Mexico Uniform Securities Act; and (4) a receiver, conservator or other liquidating agent of any institution or firm included in Paragraph (1), (2) or (3) of this subsection; C. "broker-dealer" means a person engaged in the business of effecting transactions in securities for the account of others or for the person's own account. "Broker-dealer" does not include: (1) an agent; (2) an issuer; (3) a bank or savings institution described in Paragraph (2) of Subsection D of this section if its activities as a broker-dealer are limited to those specified in Subsections 3(a)(4)(B)(i) through (vi), (viii) through (x) and (xi), if limited to unsolicited transactions; 3(a)(5)(B); and 3(a)(5)(C) of the federal Securities Exchange Act of 1934 (15 U.S.C. Sections 78c(a)(4) and (5)) or a bank that satisfies the conditions described in Subsection 3(a)(4)(E) of the federal Securities Exchange Act of 1934 (15 U.S.C. Section 78c(a)(4)); (4) an international banking institution; or (5) a person excluded by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act; D. "depository institution" means: (1) a bank; or (2) a savings institution, trust company, credit union or similar institution that is organized or chartered pursuant to the laws of a state or of the United States, authorized to receive deposits and supervised and examined by an official or agency of a state or the United States if its deposits or share accounts are insured to the maximum amount authorized by statute by the federal deposit insurance corporation, the national credit union share insurance fund or a successor authorized by federal law, or a receiver, conservator or other liquidating agent of such institutions or entities. "Depository institution" does not include: (a) an insurance company or other organization primarily engaged in the business of insurance; (b) a Morris plan bank; or (c) an industrial loan company that is not an "insured depository institution" as defined in Section 3(c)(2) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(c)(2), or any successor federal statute; E. "director" means the director of the securities division of the regulation and licensing department; F. "division" means the securities division of the regulation and licensing department, which for purposes of administering the provisions of the New Mexico Uniform Securities Act and conducting investigations of violations of that act shall be considered a law enforcement agency; G. "federal covered investment adviser" means a person registered pursuant to the federal Investment Advisers Act of 1940; H. "federal covered security" means a security that is, or upon completion of a transaction will be, a covered security pursuant to Section 18(b) of the federal Securities Act of 1933 (15 U.S.C. Section 77r(b)) or rules or regulations adopted pursuant to that section; I. "filing" means the receipt pursuant to the New Mexico Uniform Securities Act of a record by the director, or a designee of the director, in a form and format designated by the director; J. "fraud", "deceit" and "defraud" are not limited to common law deceit; K. "guaranteed" means guaranteed as to payment of all principal and all interest; L. "institutional investor" means any of the following, whether acting for itself or for others in a fiduciary capacity: (1) a depository institution or international banking institution; (2) an insurance company; (3) a separate account of an insurance company; (4) an investment company as defined in the federal Investment Company Act of 1940; (5) a broker-dealer registered pursuant to the federal Securities Exchange Act of 1934; (6) an employee pension, profit-sharing or benefit plan if the plan has total assets in excess of ten million dollars ($10,000,000) or its investment decisions are made by a named fiduciary, as defined in the federal Employee Retirement Income Security Act of 1974, that is a broker-dealer registered pursuant to the federal Securities Exchange Act of 1934, an investment adviser registered or exempt from registration pursuant to the federal Investment Advisers Act of 1940, an investment adviser registered pursuant to the New Mexico Uniform Securities Act, a depository institution or an insurance company; (7) a plan established and maintained by a state, a political subdivision of a state or an agency or instrumentality of a state or a political subdivision of a state for the benefit of its employees, if the plan has total assets in excess of ten million dollars ($10,000,000) or its investment decisions are made by a duly designated public official or by a named fiduciary, as defined in the federal Employee Retirement Income Security Act of 1974, that is a broker-dealer registered pursuant to the federal Securities Exchange Act of 1934, an investment adviser registered or exempt from registration pursuant to the federal Investment Advisers Act of 1940, an investment adviser registered pursuant to the New Mexico Uniform Securities Act, a depository institution or an insurance company; (8) a trust, if it has total assets in excess of ten million dollars ($10,000,000), its trustee is a depository institution and its participants are exclusively plans of the types identified in Paragraph (6) or (7) of this subsection, regardless of the size of their assets, except a trust that includes as participants self-directed individual retirement accounts or similar self-directed plans; (9) an organization described in Section 501(c)(3) of the federal Internal Revenue Code of 1986 (26 U.S.C. Section 501(c)(3)), corporation, Massachusetts trust or similar business trust, limited liability company or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of ten million dollars ($10,000,000); (10) a small business investment company licensed by the small business administration pursuant to Section 301(c) of the federal Small Business Investment Act of 1958 (15 U.S.C. Section 681(c)) with total assets in excess of ten million dollars ($10,000,000); (11) a private business development company as defined in Section 202(a)(22) of the federal Investment Advisers Act of 1940 (15 U.S.C. Section 80b-2(a)(22)) with total assets in excess of ten million dollars ($10,000,000); (12) a federal covered investment adviser acting for its own account; (13) a "qualified institutional buyer", as defined in Rule 144A(a)(i)(1), other than Rule 144A(a)(1)(H), adopted pursuant to the federal Securities Act of 1933 (17 C.F.R. 230.144A); (14) a "major U.S. institutional investor" as defined in Rule 15a-6(b)(4)(i)(17 C.F.R. 240.15a-6) adopted pursuant to the federal Securities Exchange Act of 1934; (15) any other person, other than an individual, of institutional character with total assets in excess of ten million dollars ($10,000,000) not organized for the specific purpose of evading the New Mexico Uniform Securities Act; or (16) any other person specified by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act; M. "insurance company" means a company organized as an insurance company whose primary business is writing insurance or reinsuring risks underwritten by insurance companies and that is subject to supervision by the insurance commissioner or a similar official or agency of a state; N. "insured" means insured as to payment of all principal and all interest; O. "international banking institution" means an international financial institution of which the United States is a member and whose securities are exempt from registration pursuant to the federal Securities Act of 1933; P. "investment adviser" means a person that, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing or selling securities or that, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities. "Investment adviser" includes a financial planner or other person that, as an integral component of other financially related services, provides investment advice to others for compensation as part of a business or that holds itself out as providing investment advice to others for compensation. "Investment adviser" does not include: (1) an investment adviser representative; (2) a lawyer, accountant, engineer or teacher whose performance of investment advice is solely incidental to the practice of the person's profession; (3) a broker-dealer or its agents whose performance of investment advice is solely incidental to the conduct of business as a broker-dealer and that does not receive special compensation for the investment advice; (4) a publisher, employee or columnist of a bona fide newspaper, news magazine or business or financial publication of general and regular circulation or an owner operator, producer or employee of a cable, radio or television network, station or production facility, if, in either case: (a) the financial or business news or advice is contained in a publication or broadcast disseminated to the general public; and (b) the content does not consist of rendering advice on the basis of the specific investment situation of each client; (5) a federal covered investment adviser; (6) a bank or a savings institution described in Paragraph (2) of Subsection D of this section; or (7) any other person excluded by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act; Q. "investment adviser representative" means an individual employed by or associated with an investment adviser or federal covered investment adviser and who makes any recommendations or otherwise gives investment advice regarding securities, manages accounts or portfolios of clients, determines which recommendation or advice regarding securities should be given, provides investment advice or holds herself or himself out as providing investment advice, receives compensation to solicit, offer or negotiate for the sale of or for selling investment advice or supervises employees who perform any of the foregoing. "Investment adviser representative" does not include an individual who: (1) performs only clerical or ministerial acts; (2) is an agent whose performance of investment advice is solely incidental to the individual acting as an agent and who does not receive special compensation for investment advisory services; (3) is employed by or associated with a federal covered investment adviser, unless the individual has a place of business in New Mexico, as "place of business" is defined by rule adopted pursuant to Section 203A of the federal Investment Advisers Act of 1940 (15 U.S.C. Section 80b-3a) and is: (a) an investment adviser representative, as "investment adviser representative" is defined by rule adopted pursuant to Section 203A of the federal Investment Advisers Act of 1940 (15 U.S.C. Section 80b-3a); or (b) not a supervised person as "supervised person" is defined in Section 202(a)(25) of the federal Investment Advisers Act of 1940 (15 U.S.C. Section 80b-2(a)(25)); or (4) is excluded by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act; R. "issuer" means a person that issues or proposes to issue a security, subject to the following: (1) the issuer of a voting trust certificate, collateral trust certificate, certificate of deposit for a security or share in an investment company without a board of directors or individuals performing similar functions is the person performing the acts and assuming the duties of depositor or manager pursuant to the trust or other agreement or instrument under which the security is issued; (2) the issuer of an equipment trust certificate or similar security serving the same purpose is the person by which the property is or will be used or to which the property or equipment is or will be leased or conditionally sold or that is otherwise contractually responsible for assuring payment of the certificate; and (3) the issuer of a fractional undivided interest in an oil, gas or other mineral lease or in payments out of production pursuant to a lease, right or royalty is the owner of an interest in the lease or in payments out of production pursuant to a lease, right or royalty, whether whole or fractional, that creates fractional interests for the purpose of sale; S. "legal rate of interest" means the rate of interest set by Subsection A of Section 56-8-4 NMSA 1978 or its successor statutes; T. "nonissuer transaction" or "nonissuer distribution" means a transaction or distribution not directly or indirectly for the benefit of the issuer; U. "offer to purchase" includes an attempt or offer to obtain, or solicitation of an offer to sell, a security or interest in a security for value. "Offer to purchase" does not include a tender offer that is subject to Section 14(d) of the federal Securities Exchange Act of 1934 (15 U.S.C. 78n(d)); V. "person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency or instrumentality; public corporation; or any other legal or commercial entity; W. "place of business" of a broker-dealer, an investment adviser or a federal covered investment adviser means: (1) an office at which the broker-dealer, investment adviser or federal covered investment adviser regularly provides brokerage or investment advice or solicits, meets with or otherwise communicates with customers or clients; or (2) a location that is held out to the general public as a location at which the broker-dealer, investment adviser or federal covered investment adviser provides brokerage or investment advice or solicits, meets with or otherwise communicates with customers or clients; X. "predecessor act" means the New Mexico Securities Act of 1986 [repealed]; Y. "price amendment" means the amendment to a registration statement filed pursuant to the federal Securities Act of 1933 or, if an amendment is not filed, the prospectus or prospectus supplement filed pursuant to that act that includes a statement of the offering price, underwriting and selling discounts or commissions, amount of proceeds, conversion rates, call prices and other matters dependent upon the offering price; Z. "principal place of business" of a broker-dealer, investment adviser or federal covered investment adviser means the executive office of the broker-dealer, investment adviser or federal covered investment adviser from which the officers, partners or managers of the broker-dealer, investment adviser or federal covered investment adviser direct, control and coordinate the activities of the broker-dealer, investment adviser or federal covered investment adviser; AA. "record", except in the phrases "of record", "official record" and "public record", means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; BB. "sale" includes every contract of sale, contract to sell or disposition of a security or interest in a security for value, and "offer to sell" includes every attempt or offer to dispose of, or solicitation of an offer to purchase, a security or interest in a security for value. Both terms include: (1) a security given or delivered with, or as a bonus on account of, a purchase of securities or any other thing constituting part of the subject of the purchase and having been offered and sold for value; (2) a gift of assessable stock involving an offer and sale; and (3) a sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer and a sale or offer of a security that gives the holder a present or future right or privilege to convert the security into another security of the same or another issuer, including an offer of the other security; CC. "securities and exchange commission" means the United States securities and exchange commission; DD. "security" means a note; stock; treasury stock; security future; bond; debenture; evidence of indebtedness; certificate of interest or participation in a profit-sharing agreement; collateral trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting trust certificate; certificate of deposit for a security; fractional undivided interest in oil, gas or other mineral rights; put, call, straddle, option or privilege on a security, certificate of deposit or group or index of securities, including an interest therein or based on the value thereof; put, call, straddle, option or privilege entered into on a national securities exchange relating to foreign currency; or, in general, an interest or instrument commonly known as a "security"; or a certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of or warrant or right to subscribe to or purchase any of the foregoing. "Security": (1) includes both a certificated and an uncertificated security; (2) does not include an insurance or endowment policy or annuity contract pursuant to which an insurance company promises to pay a fixed or variable sum of money either in a lump sum or periodically for life or other specified period; (3) does not include an interest in a contributory or noncontributory pension or welfare plan subject to the federal Employee Retirement Income Security Act of 1974; (4) does not include landowner royalties in the production of oil, gas or other minerals created through the execution of a lease of the lessor's mineral interest; (5) includes an investment in a common enterprise with the expectation of profits to be derived primarily from the efforts of a person other than the investor. As used in this paragraph, "common enterprise" means an enterprise in which the fortunes of the investor are interwoven with those of either the person offering the investment, a third party or other investors; (6) includes any interest in a limited partnership or a limited liability company; and (7) includes as an investment contract an investment in a viatical settlement or similar agreement; EE. "self-regulatory organization" means a national securities exchange registered pursuant to the federal Securities Exchange Act of 1934, a national securities association of broker-dealers registered pursuant to that act, a clearing agency registered pursuant to that act or the municipal securities rulemaking board established pursuant to that act; FF. "sign" means, with present intent to authenticate or adopt a record: (1) to execute or adopt a tangible symbol; or (2) to attach or logically associate with the record an electronic symbol, sound or process; GG. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and HH. "underwriter" means any person who has purchased from an issuer with the intent to offer or sell a security or to distribute any security; who participates or has a direct or indirect participation in any undertaking; or who participates or has a participation in the direct or indirect underwriting of any undertaking. "Underwriter" does not include a person whose interest is limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. As used in this subsection, "issuer" includes any person directly or indirectly controlling or controlled by the issuer; or any person under direct or indirect common control with the issuer. History: Laws 2009, ch. 82, § 102. ANNOTATIONSEffective dates. — Laws 2009, ch. 82, § 704 made the New Mexico Uniform Securities Act effective January 1, 2010. Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. The New Mexico Securities Act of 1986 was repealed by Laws 2009, ch. 82, § 703, effective January 1, 2010. For present comparable provisions, see the New Mexico Uniform Securities Act, 58-13C-101 to 58-13C-701 NMSA 1978.Cross references. — For the securities division, see 9-16-4 NMSA 1978. For exemption of director of securities division and the savings and loan bureau from the authority of the superintendent of regulation and licensing, see 9-16-11 NMSA 1978. For additional definitions of terms used in securities offenses, see UJI 14-4301 NMRA et seq. I. GENERAL CONSIDERATIONCases under prior law. — The pre-2010 cases below were decided under the former New Mexico Securities Act of 1986, Chapter 58, Article 13B. Due to the similarities between the two laws, the case annotations have been retained and included as annotations to the New Mexico Uniform Securities Act. The federal investment contract test in the definition of "security" in the federal Securities Act of 1933 is not an element of the definition of the term "security" as defined in the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et seq., and the jury is not required to apply the investment contract test in security violations cases. State v. Soutar, 2012-NMCA-024, 272 P.3d 154 (decided under prior law). Security defined. — Where defendant was charged with violations of the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et seq., for selling interests in a limited liability company; defendant's proposed instruction to define "security" did not actually define the term, but identified the circumstances under which a limited liability company constitutes a security; focused not on the meaning of "security"; but on the meaning of "common enterprise"; and required the jury to apply the federal investment contract test in the definition of "security" in the federal Securities Act of 1933, the court did not err in denying defendant's requested instruction. State v. Soutar, 2012-NMCA-024, 272 P.3d 154 (decided under prior law). Investment contract defined. — UJI 14-4310 NMRA defining "investment contract" as one in which the profits must be garnered "primarily" by a third party is a correct statement of the law. State v. Danek, 1994-NMSC-071, 118 N.M. 8, 878 P.2d 326. II. DECISIONS UNDER FORMER LAW.Compiler's notes. — Some of the cases below were decided under former § 58-13-2 NMSA 1978, which was repealed by Laws 1986, ch. 7, § 59. "Security" not narrowly applied. — Neither federal statutory definition nor state definition of "security" should be given narrow application. State v. Sheets, 1980-NMCA-041, 94 N.M. 356, 610 P.2d 760, cert. denied, 94 N.M. 675, 615 P.2d 992. "Security" need not involve profit sharing or risk. — To be a "security," an instrument involved need not be an investment of the type that involves profit sharing or risk. State v. Sheets, 1980-NMCA-041, 94 N.M. 356, 610 P.2d 760, cert. denied, 94 N.M. 675, 615 P.2d 992. There is no ambiguity in words "note" and "evidence of indebtedness"; their usual, ordinary meanings apply because there is no legislative intent to the contrary. State v. Sheets, 1980-NMCA-041, 94 N.M. 356, 610 P.2d 760, cert. denied, 94 N.M. 675, 615 P.2d 992. Provisions not unconstitutionally vague. — Subsection V (now DD) of this section, when read in conjunction with Section 58-13B-30 NMSA 1978 (now 58-13C-501 NMSA 1978), does not fail to provide fair and adequate warning to persons of ordinary intelligence that the conduct of the type engaged in by the defendant was criminally proscribed. State v. Ramos, 1993-NMCA-089, 116 N.M. 123, 860 P.2d 765, cert. denied, 115 N.M. 795, 858 P.2d 1274. Definition of "security" not unconstitutionally overbroad. — The definition of "security" under Subsection V (now DD) does not lack sufficient specificity nor results in being so broad as to not bear any logical link to the legislative objective of promoting the general welfare, so as to render that provision unconstitutionally overbroad. State v. Ramos, 1993-NMCA-089, 116 N.M. 123, 860 P.2d 765, cert. denied, 115 N.M. 795, 858 P.2d 1274. Definition of "security" does include commercial notes. State v. Sheets, 1980-NMCA-041, 94 N.M. 356, 610 P.2d 760, cert. denied, 94 N.M. 675, 615 P.2d 992. "Investment contract" means a contract: (1) Where an individual invests his money in a common enterprise; (2) with an expectation of profits; (3) based solely on the efforts of a promoter or third party. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92. "Common enterprise" is one in which the fortunes of the investor are interwoven with and dependent upon the efforts and success of those seeking the investment of third parties. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92. Fostering of expectation of profits found. — Promises of present and future amenities, the representations about the strength of condominium company, the description of the surrounding area as a growing recreational community, and the representations that time-share units would increase in value over the years, indicated that the management and sales personnel of the company sought to foster an expectation of profits. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92. Critical inquiry for the third prong of the test for an investment contract is whether the managerial efforts are functionally essential or undeniably significant to the profit. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92. Subsection H (now see Subsection DD) defined "any note" as security; whether or not the parties considered a note to be a "security" was not relevant to the statutory definition. State v. Sheets, 1980-NMCA-041, 94 N.M. 356, 610 P.2d 760, cert. denied, 94 N.M. 675, 615 P.2d 992. Sale of foreign corporation stock. — The New Mexico law does not provide that stock of a foreign corporation sold within the state shall be void or voidable, but only that it shall be unlawful for anyone to sell or offer it for sale within the state without the permit so that the sale is voidable for contravention of the statute (Laws 1921, ch. 44). N.M. Potash & Chem. Co. v. Independent Potash & Chem. Co., 115 F.2d 544 (10th Cir. 1940). Securities Act does not require registration of persons who sell exempt securities. 1969 Op. Att'y Gen. No. 69-97. Superintendent of insurance regulates sale of insurance securities. — An analysis of the Securities Act and the Sale of Insurance Securities Act leads to the conclusion that the legislature intended for the superintendent of insurance to have complete regulation over the sale of insurance company securities. 1969 Op. Att'y Gen. No. 69-97. Chief of securities bureau regulates variable annuities. — Variable annuities are subject to regulation by the commissioner of securities (now director of securities division) rather than by the superintendent of insurance inasmuch as they are not "insurance" within the meaning of former 58-1-1, 1953 Comp. (now Section 59A-1-5 NMSA 1978), but rather are "securities" within the meaning of this section. 1960 Op. Att'y Gen. No. 60-137. Law reviews. — For article, "A Survey of the Securities Act of New Mexico," see 2 N.M.L. Rev. 1 (1972). For article, "The Use (or Abuse) of the Limited Partnership in Financing Real Estate Ventures in New Mexico," see 3 N.M.L. Rev. 251 (1973). For comment, "Securities: Private Placements in New Mexico," see 7 N.M.L. Rev. 105 (1976-77). For note, "State Securities Law: A Valuable Tool for Regulating Investment Land Sales," see 7 N.M.L. Rev. 265 (1977). Am. Jur. 2d, A.L.R. and C.J.S. references. — 69A Am. Jur. 2d Securities Regulations - State § 52 et seq. Blue sky laws, 87 A.L.R. 42. Sale of memberships in club or similar organization as sale of securities within provisions of securities acts, 87 A.L.R.2d 1140. Who is "dealer" under state securities acts exempting sales by owners other than issuers not made in course of successive transactions, and the like, 6 A.L.R.3d 1425. What gives rise to right of recession under state blue-sky laws, 52 A.L.R. 5th 491. Promissory notes as securities under § 2(1) of Securities Act of 1933 (15 USCS § 77b(1)), and § 3(a)(10) of Securities Exchange Act of 1934 (15 USCS § 78c(a)(10)), 39 A.L.R. Fed. 357. Certificate of deposit as "security" under federal securities laws, 82 A.L.R. Fed. 553. "Common enterprise" element of Howey test to determine existence of investment contract regulatable as "security" within meaning of federal Securities Act of 1933 (15 USCS §§ 77a et seq.) and Securities Exchange Act of 1934 (15 USCS §§ 78a et seq.), 90 A.L.R. Fed. 825. What is "investment contract" within meaning of § 2 (1) of Securities Act of 1933 (15 USCS § 77b(1)) and § 3(a)(10) of Securities Exchange Act of 1934 (15 USCS § 78c(a)(10)), both defining term "security" as including investment contract, 134 A.L.R. Fed. 289.