(1) General
No person subject to the jurisdiction of the department shall
issue, offer, offer to sell, offer for sale or sell, directly or indirectly,
any security issued by it unless the offer or sale is made through the use of
an offering circular which has been filed and declared effective pursuant to
this rule.
(2)
Communications not deemed an offer
The following communications shall not be deemed an
offer:
(a) Prior to filing an offering
circular, any notice of a proposed offering which satisfies the requirements of
SEC Rule 135, Notice of Certain Proposed Offerings, 17 CFR
230.135 (1993);
and
(b) Subsequent to filing an
offering circular, any notice, circular, advertisement, letter, or other
communication published or transmitted to any person which satisfies the
requirements of SEC Rule 134, Communications Not Deemed a Prospectus, 17 CFR
230.134(1993).
(3) Preliminary offering circular
A preliminary offering circular may be used prior to the
effective date of the offering circular if:
(a) The preliminary offering circular has
been filed pursuant to this rule;
(b) The preliminary offering circular
includes the information required by this rule, except for the information
relating to offering price, discounts or commissions, amount of proceeds,
conversion rates, call prices, or other matters dependent on the offering
price; and
(c) The offering
circular declared effective by the department is furnished to the purchaser
prior to any sale.
(4)
Form and Content
Any offering circular or amendment filed pursuant to this
rule shall comply with the information requirements of Section (b) of the
Securities and Exchange Commission Rule 502, General Conditions to be Met, 17 CFR 230.502 (1993).
(5)
Number of Copies
Any filing shall include three copies of each document to be
filed with the department. After the effective date of an offering circular, an
offering circular which varies from the form previously filed shall not be
used, unless it includes only non-material supplemental or additional
information and until three copies have been filed with the department.
(6) Effective Date
An offering circular filed with the department is effective
on the tenth day after filing. Upon request, the commissioner may declare an
earlier effective date if he is satisfied that the offering circular is
adequate and that the earlier effective date does not materially prejudice any
party in interest. Exceptions include:
(a) If any amendment is filed prior to the
effective date, the offering circular shall be deemed to have been filed when
such amendment was filed;
(b) If a
duly authorized amendment, telegram confirmed in writing, or letter states that
the effective date is delayed until a further amendment is filed stating
specifically that the offering circular will become effective in accordance
with this paragraph; or
(c) If it
appears to the department at any time that the offering circular is incomplete
or inaccurate in any material respect, the department may determine to declare
the offering circular not effective until a materially complete and accurate
amendment is filed.
(7)
Use of the offering circular
(a) An offering
circular or amendment declared effective by the department shall not be used
more than nine months after the effective date, unless the information
contained therein is as of a date not more than sixteen months prior to such
use.
(b) An offering circular filed
under this rule shall not extend the period for which an effective offering
circular or amendment may be used under Subsection (c).
(c) No offering circular shall be used and no
offer or sale of securities subject to the offering circular requirements of
this department shall be made subsequent to any material change in an issuer's
business operations or financial condition, until the offering circular has
been amended to include information as to the material changes and the amended
offering circular has been filed with and declared effective by the
department.
(8)
Withdrawal or abandonment
(a) Any offering
circular, amendment, or exhibit may be withdrawn prior to the effective date. A
withdrawal shall be signed and state fully the grounds upon which it is made.
Any documents withdrawn will not be removed from the files of the department,
but will be marked "Withdrawn upon the request of the issuer on
(date)."
(b) When an offering
circular or amendment has been on file with the department for a period of nine
months and has not become effective the department may, in its discretion,
determine whether the filing has been abandoned, after notifying the issuer
that the filing is out of date and must either be amended to comply with the
applicable requirements of this rule or be withdrawn within 30 days after the
date of such notice. Where a filing is abandoned, the documents will not be
removed from the files of the department, but will be marked "Declared
abandoned by the department on (date)."
