Utah Admin. Code R164-15-2 - Notice Filings for Rule 506 Offerings
(A) Authority and purpose.
(1) The Division enacts this rule under
authority granted by Sections
61-1-15.5
and
61-1-24.
(2) The rule requires a notice
filing within 15 days after the first sale in this state of securities
described in Subsection
61-1-15.5(2) and sets forth the filing procedure.
(3) This rule is hereby amended to recognize
the following:
(3)(a) The amendment of
Regulation D by the Securities and Exchange Commission (SEC) to authorize the
filing of Form D in electronic format with the SEC through the Electronic Data
Gathering, Analysis, and Retrieval System (EDGAR) in accordance with EDGAR
rules set forth in Regulation S-T (17 CFR Part 232) as described in Securities
and Exchange Commission Securities Act Release No. 8891; and
(3)(b) The establishment of the Electronic
Filing Depository (EFD), operated by the North American Securities
Administrators Association, Inc. (NASAA) to receive and store all Form D notice
filings and amendments (17 CFR 239.500) and to collect filing fees on behalf
of the Division.
(B) Definitions
(1) "Division" means the Division of
Securities, Utah Department of Commerce.
(2) "NASAA" means the North American
Securities Administrators Association, Inc.
(3) "EFD" means the Electronic Filing
Depository established and maintained by NASAA.
(C) Designation and filing requirements
(1) For all notice filings authorized by
Subsection
61-1-15.5(2),
the Division hereby designates EFD to receive and store all notice filings made
on SEC Form D ( 17 CFR 239.500) and to collect related filing fees on behalf
of the Division.
(2) Unless
otherwise provided, upon notice in paragraph (C)(3) below, all Form D notice
filings, amendments, and related filing fees shall be filed electronically with
and transmitted to EFD.
(3)
Notwithstanding paragraph (C)(2) of this rule, the electronic filing of Form D
notice filings and amendments and the collection of related processing fees
shall not be required until such time as EFD provides for receipt of such
filings and fees and thirty (30) days notice is provided by the Division. Any
documents or fees required to be filed with the Division that are not permitted
to be filed with, or cannot be accepted by, EFD shall be filed directly with
the Division.
(4) A duly
authorized person of the issuer shall affix his or her electronic signature to
the Form D filing by typing his or her name in the appropriate fields and
submitting the filing to EDGAR. Submission of a filing in this manner shall
constitute irrefutable evidence of legal signature by any individual whose name
is typed on the filing both for purposes of authorizing the disclosures in the
Form as well as giving effect to any consent to service provisions found
therein.
(5) Subsequent to the
expiration of the notice period in paragraph (C)(3), no filing, partial filing,
or filing fee submitted to the Division by means other than EFD shall act to
grant such a filing the status of being duly received by the Division for any
purpose relating to the timeliness of the filing or the avoidance of the
assessment of any late filing fee.
(D) Filing requirements prior to Paragraph
(C)(3) notice
(1) An issuer offering a
security that is a covered security under section 18(b)(4)(D) of the Securities
Act of 1933 must file with the Division or its designee, no later than 15 days
after the first sale of such federal covered security in this state, an initial
notice and a filing fee as follows:
(1)(a)
The issuer shall file an initial notice on SEC Form D. For Purposes of
Subsection
61-1-15.5(2),
the initial notice on SEC Form D shall consist of a copy of the notice of sales
on Form D filed in electronic format with the SEC through the Electronic Data
Gathering, Analysis, and Retrieval System (EDGAR) in accordance with EDGAR
rules set forth in Regulation S-T ( 17 CFR Part 232 ) and in effect on September
15, 2008.
(1)(b) Such form shall be
manually signed by a person duly authorized by the issuer;
(1)(c) The issuer shall include with the
initial notice a statement indicating:
(1)(c)(i) The date of the first sale of
securities in the state of Utah; or
(1)(c)(ii) That sales have yet to occur in
the state of Utah; and
(1)(d) The issuer shall submit a fee as
specified in the Division's fee schedule.
(2) An issuer may file an amendment to a
previously filed notice of sales on Form D at any time and must file such an
amendment to correct a material mistake of fact or error in the previously
filed notice of sales on Form D, as soon as practicable after discovery of the
mistake or error.
(3) An issuer
that files an amendment to a previously filed notice of sales on Form D must
provide current information in response to all requirements of the notice of
sales on Form D regardless of why the amendment is filed.
Notes
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