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Securities Regulation Keyed to Cox
Berckeley Investment Group, Ltd. v. Colkitt
Citation:
455 F.3d 195 (2006)Facts
In May 1996, Douglas Colkitt, seeking financing for a business venture, entered into an Offshore Convertible Securities Purchase Agreement with Berckeley Investment Group, Ltd., a Bahamian corporation. Under the Agreement, Berckeley purchased 40 convertible debentures at $50,000 each for a total of $2,000,000. The debentures could be converted into unregistered NMFS shares at a 17% discount from market price after specified periods (100 and 120 days). The Agreement contained representations that all subsequent sales would comply with Securities Act registration requirements or applicable exemptions, including Regulation S provisions. Berckeley represented it would not resell shares to U.S. persons within the United States until after a 40-day restricted period. After the conversion periods expired, Berckeley made five conversion demands totaling $300,000 worth of debentures in September 1996. Colkitt converted only 18,230 shares in November 1996 and refused further conversions, alleging Berckeley engaged in short selling to deflate stock prices and violated securities laws. Berckeley subsequently sold the 18,230 shares through a U.S. broker. Both parties filed suit against each other, with Berckeley claiming breach of contract and Colkitt asserting securities law violations and fraud as defenses and counterclaims.
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