No. 40206 (Amendment): Section R164-15-3. Notice Filings for Offerings Made Under Tier 2 of Federal Regulation A

(Amendment)

DAR File No.: 40206
Filed: 02/09/2016 01:45:31 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In the federal "Jumpstart Our Business Startups Act" of 2012 (JOBS Act), Congress directed the Securities and Exchange Commission (Commission) to make substantial modifications to the rules governing "Regulation A of the Securities Act" of 1933. The final rules promulgated by the Commission (see 17 CFR 230.251 through 230.263) permitted state securities regulators to require the filing of notice when sales were made to residents of the state under Tier 2 of Regulation A. This rule effectuates the creation of such filings.

Summary of the rule or change:

Pursuant to the authority granted to the Utah Division of Securities by Subsection 61-1-15.5(3), the Division adds this section to effectuate the receiving of notice filings for securities offerings made to residents of this state pursuant to Tier 2 of Federal Regulation A of the "Securities Act" of 1933. This section establishes the filing requirement and enumerates the required documents and fees that constitute a complete filing.

State statutory or constitutional authorization for this rule:

• 17 CFR 230.251 through 230.263
• Subsection 61-1-15.5(3)

Anticipated cost or savings to:

the state budget:

The state will incur no additional costs to its budget. Each filing will be accompanied by a filing fee of either $100 or $500. The Division anticipates that additional revenue from these fees will not exceed $10,000 to $15,000 during the first full fiscal year of receipt. Currently, the Division anticipates it can process the filings with existing personnel resources.

local governments:

Local governments will not receive or process these filings.

small businesses:

Small businesses will be required to pay a filing fee of either $100 or $500. However, since Tier 2 securities offerings under Regulation A+ are specifically designed for larger offerings of $20,000,000 or more, the overall cost effect on the offering as a whole will be minimal.

persons other than small businesses, businesses, or local governmental entities:

Larger entities contemplating the use of Tier 2 of Regulation A for the offering of their securities will pay filing fees identical to those for "small businesses" above.

Compliance costs for affected persons:

The compliance costs for affected persons will be the payment of a filing fee of $100 for filings made within the deadline period specified in the rule and $500 for filings made after the expiration of the deadline.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Department anticipates that Tier 2 of Regulation A will provide Utah businesses with a cost-effective, streamlined process for making public offerings of securities and raising working capital for expansion. At the same time, the Division wishes to discharge its duty to protect investors by obtaining key information about the offering, the issuing company, and those who manage its operations. The notice filings contemplated under this Rule will provide this information at a minimal regulatory cost to business. As required by law, the Securities Commission has reviewed the proposed rule and has approved it by a unanimous vote.

Francine Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Securities
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Benjamin Johnson at the above address, by phone at 801-530-6134, by FAX at 801-530-6980, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/31/2016

This rule may become effective on:

04/11/2016

Authorized by:

Keith Woodwell, Director

RULE TEXT

R164. Commerce, Securities.

R164-15. Federal Covered Securities.

R164-15-3. Notice Filings for Offerings Made Under Tier 2 of Federal Regulation A.

(A) Authority and purpose.

(1) The Division enacts this rule under authority granted by Sections 61-1-15.5(3) 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(3) and sets forth the filing procedure.

(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) Filing Requirements:

(1) An issuer offering a security that is a covered security under section 18(b)(3) 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) A completed Uniform Notice of Regulation A -- Tier 2 Offering notice filing form or copies of all documents filed with the Securities and Exchange Commission;

(1)(b) A consent to service of process on Form U-2 if not filing on the Uniform Notice of Regulation A -- Tier 2 Offering notice filing form;

(1)(c) The forms referenced in (3)(a)(i) and (ii) above shall be manually signed by a person duly authorized by the issuer;

(1)(d) The issuer shall include with the initial notice a statement indicating:

(1)(d)(i) The date of the first sale of securities in the state of Utah; or

(1)(d)(ii) That sales have yet to occur in the state of Utah; and

(1)(e) 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 filing 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 as soon as practicable after discovery of the mistake or error.

(3) An issuer that files an amendment to a previously filed notice filing must provide current information in response to all requirements of the notice filing form regardless of why the amendment is filed.

(D) Designation of EFD for Electronic Filings

(1) At such time as the EFD system is operationally configured to receive such filings, the Division hereby designates EFD to receive and store notice filings made on Uniform Notice of Regulation A -- Tier 2 Offering and to collect related filing fees on behalf of the Division.

(2) The filing of notice filings made on Uniform Notice of Regulation A -- Tier 2 Offering and the collection of related processing fees through the EFD system is permissive and shall not be required until the Division shall amend this Rule to designate a specific date of mandatory compliance. The public notice designated for Form D filings in Section R164-15-2(C)(3) shall not constitute such an amendment.

(3) 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 notice filing on Uniform Notice of Regulation A -- Tier 2 Offering by typing his or her name in the appropriate fields and submitting the filing to EFD. 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 amendment of this Rule referenced in paragraph (D)(2) above, 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.

 

KEY: mutual funds, securities, securities regulation

Date of Enactment or Last Substantive Amendment: [March 10, 2015]2016

Notice of Continuation: July 25, 2012

Authorizing, and Implemented or Interpreted Law: 61-1-15.5; 61-1-24

 

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