Sec. 260.105.33 - Senior to Listed or Designated Securities

ยง 260.105.33. Senior to Listed or Designated Securities

(a) There is hereby exempted from the provisions of Sections 25110 and 25130 of the Code as not being comprehended within the purposes of the Corporate Securities Law of 1968 and the qualification of which is not necessary or appropriate in the public interest or for the protection of investors, any offer or sale of an equity security

(1) which is issued by the issuer of a security listed on an exchange certified by the Commissioner pursuant to the provisions of Section 25100(o) of the Code and

(2) which is senior to such listed or designated security, including a senior security which is convertible into another senior security or into securities of the listed or designated class.

Except as provided in the next sentence, an equity security is "senior" to a listed or designated security of the same issuer within the meaning of this section if, upon liquidation or dissolution of the issuer, the holders of such security are entitled to payment from, or to participate in the distribution of assets of, the issuer prior to any payment to, or participation in such distribution of assets by, the holders of such listed or designated security. An equity security is not "senior" to a listed or designated security of the same issuer if it is currently able to be converted into an evidence of indebtedness which does not meet the requirements for the exemption under Rule 260.105.34.

(b) Notice. The issuer of securities pursuant to the exemption under this rule or Rule 260.105.34 shall file a notice upon the form specified below containing the information specified and in accordance with the instructions in subsections (c) and (d). Neither the failure to file the notice nor the failure to file it as required by this section shall affect the availability of the exemption under this rule or Rule 260.105.34. The notice shall be in the following form:

(c) General Instructions.

(1) Time to File: The notice pursuant to the exemptions from qualification under Rules 260.105.33 and 260.105.34 (Title 10, California Code of Regulations) is to be filed within 60 days after the first contractual commitment in this state to purchase the securities offered in the transaction. If one of the securities offered are sold in this state, a notice need not be filed.

(2) "Transaction." File a separate notice for each transaction. For the purposes of this notice, "transaction" means:

(A) All offers and sales of securities pursuant to a registration under Section 5 of the Securities Act of 1933 [or in the case of a "shelf registration" under Rule 415 (17 C.F.R. 230.415), pursuant to a supplement to the registration] or pursuant to notice filed under Section 4(6) of that act or Regulation A, D, or E thereunder (17 C.F.R. Sections 230.251 to 230.263, 230.501 to 230.508, and 230.601 to 230.610a).

(B) Except as provided in subsection (A), the term "transaction" means all sales of securities which would constitute a single transaction, based on the discussion of "integration" in Release 33-4552 under the Securities Act of 1933.

(3) Form: Use the printed form available from any office of the Commissioner or type the form on one side of 8 1/2 by 11 inch white bond paper.

(4) Filing Fee: Payment of the fee prescribed by Rule 260.608.3 is required only when an original notice is required to be filed for a transaction exempted by Rule 260.105.33, Rule 260.105.34 or both rules. Neither a notice nor a fee is required if securities are offered but not sold in this state in the transaction. No fee is required for filing an amended notice unless the aggregate value of the securities sold is increased as explained in Rule 260.608.3.

(d) Instructions for Completing Items. In the heading portion of the form, insert the Department's file number for the issuer, if available, in the space provided, and circle or underline the amount of the fee specified for the notice by Rule 260.608.3.

(1) The issuer. Give the legal name of the issuer and the mailing address of its principal business office.

(2) Other Issuer Information. Indicate the issuer's type of organization (e.g., "corporation," "partnership," or "business trust"), the jurisdiction under whose laws it was organized and the year of its incorporation or inception.

(3) Contact Person. Indicate the name of the person to be contacted regarding the notice, including the name of that person's firm, and the person's mailing address and telephone number.

(4) Transaction. See General Instructions.

(A) Rule Number. Indicate either Rule 260.105.33 or 260.105.34, or both rules, as applicable.

(B) Proposed 1st Sale Date. Insert the date upon which it is believed that the first contractual commitment in this state was received in connection with the offering. If the first sale has not occurred, insert the date of the notice from Item 6.

(C) Securities Description. Insert a brief description of the security or securities, and indicate whether it is convertible into another class of securities of the issuer, and if so, the name of such other class.

(D) Value of Securities. Indicate the value of the securities sold or expected to be sold in the transaction, determined pursuant to Corporations Code Section 25608(g). The value of consideration other than cash may be determined by the issuer.

(5) The consent to service of process should be filed on Form 260.165. It need not be filed if the issuer is a California corporation or if the issuer has a consent to service on file with the Commissioner.

(6) Execution. The notice should be manually signed by a person authorized to do so on behalf of the issuer.

(1. New section filed 9-30-83; effective upon filing pursuant to Government Code section 11346.2(d) (Register 83, No. 40). 2. Amendment filed 9-30-83 as an emergency; effective eleventh day thereafter (Register 83, No. 40). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-28-84. 3. Editorial correction filed 10-3-83 redesignating effective date of 9-30-83 emergency to 9-30-83 (Register 83, No. 40). 4. Certificate of Compliance including amendment as to 9-30-83 order transmitted to OAL 1-25-84 and filed 2-16-84 (Register 84, No. 7). 5. Editorial correction of HISTORY 1. (Register 84, No. 15). 6. Amendment of subsection (a) filed 6-26-85; effective thirtieth day thereafter (Register 85, No. 26). 7. Amendment filed 10-10-90; operative 11-9-90 (Register 90, No. 45). 8. Amendment filed 5-20-92; operative 6-19-92 (Register 92, No. 21). 9. Change without regulatory effect amending section filed 9-25-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 39). 10. Repealer of subsection (a)(1)(A) designator and subsection (a)(1)(B) and amendment of subsections (a)(1) and (c)(2)(A) filed 11-10-2009; operative 12-10-2009 (Register 2009, No. 46). 1. New section filed 9-30-83; effective upon filing pursuant to Government Code section 11346.2(d) (Register 83, No. 40). 2. Amendment filed 9-30-83 as an emergency; effective eleventh day thereafter (Register 83, No. 40). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-28-84. 3. Editorial correction filed 10-3-83 redesignating effective date of 9-30-83 emergency to 9-30-83 (Register 83, No. 40). 4. Certificate of Compliance including amendment as to 9-30-83 order transmitted to OAL 1-25-84 and filed 2-16-84 (Register 84, No. 7). 5. Editorial correction of HISTORY 1. (Register 84, No. 15). 6. Amendment of subsection (a) filed 6-26-85; effective thirtieth day thereafter (Register 85, No. 26). 7. Amendment filed 10-10-90; operative 11-9-90 (Register 90, No. 45). 8. Amendment filed 5-20-92; operative 6-19-92 (Register 92, No. 21). 9. Change without regulatory effect amending section filed 9-25-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 39). 10. Repealer of subsection (a)(1)(A) designator and subsection (a)(1)(B) and amendment of subsections (a)(1) and (c)(2)(A) filed 11-10-2009; operative 12-10-2009 (Register 2009, No. 46). 11. Change without regulatory effect amending subsection (b) filed 8-13-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 33). 1. New section filed 9-30-83; effective upon filing pursuant to Government Code section 11346.2(d) (Register 83, No. 40). 2. Amendment filed 9-30-83 as an emergency; effective eleventh day thereafter (Register 83, No. 40). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-28-84. 3. Editorial correction filed 10-3-83 redesignating effective date of 9-30-83 emergency to 9-30-83 (Register 83, No. 40). 4. Certificate of Compliance including amendment as to 9-30-83 order transmitted to OAL 1-25-84 and filed 2-16-84 (Register 84, No. 7). 5. Editorial correction of HISTORY 1. (Register 84, No. 15). 6. Amendment of subsection (a) filed 6-26-85; effective thirtieth day thereafter (Register 85, No. 26). 7. Amendment filed 10-10-90; operative 11-9-90 (Register 90, No. 45). 8. Amendment filed 5-20-92; operative 6-19-92 (Register 92, No. 21). 9. Change without regulatory effect amending section filed 9-25-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 39). 10. Repealer of subsection (a)(1)(A) designator and subsection (a)(1)(B) and amendment of subsections (a)(1) and (c)(2)(A) filed 11-10-2009; operative 12-10-2009 (Register 2009, No. 46). 11. Change without regulatory effect amending subsection (b) filed 8-13-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 33).)

Note: Authority cited: Sections 25105 and 25610, Corporations Code. Reference: Sections 25105 and 25608(w), Corporations Code.

The following state regulations pages link to this page.