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

  (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.

  (C) Filing Requirements:

  (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.

  (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.