Kan. Admin. Regs. § 81-5-18 - Notice filing requirements for securities of agricultural associations
(a) Exemption. The
sale of a security of a cooperative organized under K.S.A. 17-1601 et seq., and
amendments thereto, to a person who is not a member pursuant to K.S.A. 17-1606,
and amendments thereto, shall be exempt from the requirements of K.S.A.
17-12a301 through 17-12a306 and K.S.A. 17-12a504, and amendments thereto, if
the following requirements are met:
(1) The
cooperative shall file a notice with the administrator that includes the
following items:
(A) A filing fee as
specified in K.A.R. 81-5-8;
(B) a
copy of any underwriting or selling agreements;
(C) a copy of the cooperative's bylaws,
operating agreement, or similar document;
(D) a copy of a prospectus that discloses all
material facts concerning the investment, including the following information:
(i) The name and address of the cooperative;
(ii) a description of the security
being offered;
(iii) the total
amount of securities being issued;
(iv) a brief summary of key aspects of the
offering;
(v) a description of the
material risks associated with the offering, which may include risk factors
related to unprofitable operations, unsound financial condition, absence of a
market for the cooperative's securities, inexperience of management, and
dependence upon a particular customer or group of customers; risks affecting
the industry as a whole; and any other facts that tend to make the offering
more risky;
(vi) a description of
the business or proposed business;
(vii) a description of the proposed use of
proceeds, in an itemized format;
(viii) a description of the responsibilities,
experience, and compensation of directors, officers, and any other persons
having similar status or performing similar functions for the cooperative;
(ix) a description of the plan of
distribution for the securities;
(x) a summary of the cooperative's
capitalization;
(xi) a description
of any pending litigation, action, or proceeding to which the cooperative is a
party and that materially affects its business or assets, and any litigation,
action, or proceeding known to be contemplated by governmental authorities;
(xii) a description of the general
federal and state tax consequences of owning the security; and
(xiii) the historical financial statements
for the past three fiscal years or since the cooperative's inception, whichever
period is shorter, that are in conformity with GAAP, the most recent of which
have been audited by a CPA. If the balance sheet in the financial statements is
more than 120 days old on the date the notice is filed with the administrator,
then interim financial statements made in conformity with GAAP and not more
than 120 days old shall be included in the prospectus;
(E) a copy of any advertising materials or
any summaries of the offering document to be used in the offer or sale of the
securities in Kansas;
(F) a copy
of the subscription agreement;
(G)
the name, business address, and a brief description of the employment
responsibilities of each agent who will represent the cooperative in the offer
or sale of the securities in Kansas;
(H) a copy of the trust indenture if the
offering involves debt securities; and
(I) any other relevant information or
document requested by the administrator.
(2) If the security is a debt instrument, the
cooperative shall sell no more securities than it can reasonably repay in the
ordinary course of its operations. The cooperative shall demonstrate, to the
administrator, its ability to repay the debt as it comes due.
(3) If the security is a debt instrument
issued to finance the purchase or improvement of real property, the cooperative
shall demonstrate that the project can be completed with the proposed proceeds
from the offering and other available funds. The debt shall be secured by a
trust indenture that obligates the cooperative to make payments and to pledge
properties owned or to be acquired by the cooperative. The cooperative shall
provide an independent appraisal report to the administrator and shall
demonstrate that the value of the pledged property is sufficient to secure the
debt.
(4) If the security is not
subject to a firm underwriting agreement, the proceeds shall be deposited and
held in an escrow account until a specified minimum amount of proceeds has been
deposited so that the cooperative can accomplish the primary purpose of its
financing plan or complete a specified stage of a construction project in which
a mortgage can be recorded to secure the debt.
(b) Review. Within 30 days after the notice
is filed under subsection (a), the notice filing and related documents shall be
reviewed by the administrator, and a letter shall be issued by the
administrator either to advise the cooperative that the administrator has no
objection to the cooperative's claim of exemption under this regulation or to
inform the cooperative that the filing is incomplete or fails to meet the
requirements for this exemption. In reviewing the issuer's compliance with the
conditions specified in subsection (a), the analogous provisions of the
statement of policy regarding church bonds, as adopted by reference in K.A.R.
81-7-2, may be applied by the administrator.
(c) Waivers. For good cause shown, the
requirements of this regulation may be waived, in whole or in part, by the
administrator.
Notes
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