R164-15. Federal Covered Securities, R164. Commerce, Securities, Utah Administrative Code

Utah Administrative Code (Current through November 1, 2019)

R164. Commerce, Securities

R164-15. Federal Covered Securities

R164-15-1. Notice Filings for Offerings of Investment Company Securities

Latest version.

(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 prior to the offer or sale of securities described in Subsection 61-1-15.5(1) and sets forth the filing procedure.

(3) The rule also authorizes optional electronic filing of notices.

(B) Definitions

(1) "Designee" means any person or entity authorized and recognized by the Division in this rule to accept filings on behalf of the Division by electronic or other means of communication.

(2) "Division" means the Division of Securities, Utah Department of Commerce.

(3) "NASAA" means the North American Securities Administrators Association, Inc.

(4) "SEC" means the United States Securities and Exchange Commission.

(1) Prior to the offer or sale of a security which is a covered security under Section 18(b)(2) of the Securities Act of 1933, the issuer must submit to the Division or its designee the following:

(1)(a) A completed manually signed NASAA Form NF;

(1)(b) A completed manually signed NASAA Form U-2 - Uniform Consent to Service of Process; and

(1)(c) A fee as specified in the Division's fee schedule.

(2) The issuer may submit a copy of all documents that are part of the federal registration statement filed with the SEC as a substitute for NASAA Form NF.

(3) Upon written request of the Division and within the time period set forth in the request, the issuer must submit to the Division a copy of any document, identified in the request, that is part of the federal registration statement filed with the SEC or is part of an amendment to such federal registration statement.

(4) All securities included in the same prospectus may be covered under a single notice filing.

(5) An issuer who has filed a Form U-2 in connection with a previous notice filing need not file another.

(D) Term of notice filing

(1) Except as provided in Subparagraph (D)(2), a notice filing under Paragraph (C) is effective for one year from the date filed with the Division or its designee.

(2) A notice filing under Paragraph (C) for a unit investment trust is for an indefinite period of time from the date filed with the Division or its designee.

(3) To facilitate the coordination of expiration dates with other states, the issuer may request a specific term of effectiveness which does not exceed one year.

(E) Renewal

A notice filing, for which the term is about to expire, may be renewed by submitting to the Division or its designee, another notice and payment of the applicable fee in accordance with Paragraph (C).

(F) Amendments

(1) The materials filed pursuant to Paragraph (C) may be amended by forwarding the corrected information to the Division or its designee and requesting that the file be amended accordingly.

(2) No fee is required for an amendment.

(G) Recognized designee

(1) The Division authorizes and recognizes the Securities Registration Depository, Inc. as a designee to receive notice filings under this rule on behalf of the Division, including but not limited to notices, fees, and all documents that are part of a federal registration statement filed with the SEC under the Securities Act of 1933.

(2) The designation provided in this rule is for the sole purpose of receiving filings on behalf of the Division and then transmitting those documents to the Division, or for any other purpose which the Division may prescribe by order or release.

(H) Sales Report

Within 30 days of the close of the offering or when the issuer ceases to rely upon the notice, whichever occurs first, unit investment trusts shall file a sales report on NASAA Form NF. No sales report is required for open-end management investment companies.

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

Latest version.

(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.

(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.

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

Latest version.

(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.

(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.

R164-15-4. Notice Filings for Offerings Made Under Federal Crowdfunding Provisions

Latest version.

(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 for offerings made under federal Regulation Crowdfunding, 17 C.F.R. Sec. 227 and Sections 4(a)(6) and 18(b)(4)(C) of the Securities Act of 1933 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.

(1) An issuer that offers and sells securities in this state in an offering exempt under federal Regulation Crowdfunding, and that either has its principal place of business in this state or sells fifty percent (50%) or greater of the aggregate amount of the offering to residents of this state, shall file the following with the Division or its designee:

(1)(a) A completed Uniform Notice of Federal Crowdfunding Offering 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 Federal Crowdfunding Offering form;

(1)(c) A filing fee as specified in the Division's fee schedule.

(1)(d) The forms referenced in (C)(1)(a) and (b) above shall be manually signed by a person duly authorized by the issuer.

(2) If the issuer has its principal place of business in this state, the filing required under paragraph (A) of this section shall be filed with the Division no later than 15 days after the issuer makes its initial Form C filing concerning the offering with the Securities and Exchange Commission.

(3) If the issuer does not have its principal place of business in this state, but residents of this state have purchased fifty percent (50%) or greater of the aggregate amount of the offering, the filing required under paragraph (A) of this section shall be filed when the issuer becomes aware that such purchases have met this threshold and in no event later than 15 days from the date of the completion of the offering.

(4) 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.

(5) 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 Federal Crowdfunding Offering and to collect related filing fees on behalf of the Division.

(2) The filing of notice filings made on Uniform Notice of Federal Crowdfunding 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 Federal Crowdfunding Offering form 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.