The dual class structure is intended to permit ABS to maintain its "foreign private issuer" status (as such term is defined in
Rule 405 of Regulation C under the U.S.
Another evidence rule, Rule 405, provides further guidance to a party seeking to prove a character trait.
(18) Instead, the character of a witness is an essential element only in cases in which "a litigant must, as a matter of law, prove a person's character in order to prevail." (19) Thus, for example, Rule 405 prohibits the admission of specific prior bad acts even for the sole purpose of proving character in a murder case to establish that the victim was the first aggressor, as a person's "character for violence" is not an element of the crime of murder or of self-defense.
Rule 405 provides the acceptable methods of proving character when an exception to the general prohibition applies.
Thus, while profile and syndrome evidence may be authorized by the exceptions of Rule 404, such as when a criminal defendant offers evidence of his own character trait, there is no proper method to introduce it under Rule 405.
(20) After briefly outlining the standards governing the prohibition of character evidence in Part II, I then introduce the Rule 405 problem.
The final rule allows use of S-3 when (1) the issuer has outstanding (as of a date within 60 days prior to the filing of the registration statement) at least $750 million of nonconvertible securities, other than common equity, issued in primary offerings for cash, not exchange, or (2) is a wholly-owned subsidiary of a WKSI as defined in
Rule 405 under the Securities Act.
As a result of the committee's changes pursuant to numbered paragraph (4),
Rule 405, Methods of Proving Character, now includes opinion testimony along with reputation testimony as a method of proof in cases where character evidence is admissible.
(149)
Rule 405 of the Securities Act of 1933 (the "Securities Act") and Exchange Act Rule 12b-2 define a shell company as: "a registrant, other than an asset-backed issuer ...
* The evidence is not in the form of testimony as to reputation or opinion (
Rule 405 (a)).
* The issuer is eligible to use Form S-8, the options subject to the exchange offer were issued under an employee benefit plan as defined in
Rule 405 of the 1933 Act, and the securities offered in the exchange offer will be issued under such an employee benefit plan;
The court also noted three instances in which the rules have been changed:
Rule 405 and Rule 608, both of which have to do with evidence of character, and Rule 803(3), which will allow opinion statements as to the existing state of mind or physical condition of a person even if that person would be available as a witness.
