R164-15-2 - Notice Filings for Rule 506 Offerings

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.

(Amended by Utah State Bulletin Number 2015-7, effective 3/10/2015)

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