8828 applies. If the commissioner shall determine at such hearing that such sale would not be in compliance with the Act, is a fraudulent practice, or would tend to work a fraud on any purchaser thereof or would not be fair, just or equitable to any purchaser thereof, the commissioner may issue a written cease and desist  order, prohibiting or suspending the sale of such securities or denying or revoking the registration of such securities, prohibiting an unregistered person from acting as a dealer or an agent, or prohibiting the fraudulent conduct. All disbursements made in the payment of such fees shall be made in accordance with Board rule and shall be included in, and paid in the same manner as is provided for, the payment of other expenses incident to the administration and enforcement of this Act. The bracketed date following each C&DI is the latest date of publication or revision. In a PIPE transaction, a company will be permitted to register the resale of securities prior to their issuance if the company has completed a Section 4(2)-exempt sale of the securities (or in the case of convertible securities, of the convertible security itself) to the investor, and the investor is at market risk at the time of filing of the resale registration statement. As the selling securityholders resell shares of common stock following conversion, the company must file prospectus supplements, as necessary, to update the disclosure of the number of shares that each selling securityholder intends to sell, reflecting prior resales. No warrants may be exercised until the registrant has brought its prospectus covering such exercise current. As soon as possible after the merger, a reorganization will be effected in which Company B will be liquidated, its assets distributed to approximately 50 indirect wholly-owned subsidiaries of Company A, and its liabilities (including the notes issued in connection with the merger) assumed by another wholly-owned subsidiary of Company A, New Company B, whose assets will consist of stock of the 50 operating subsidiaries. For the purpose of adoption of rules and regulations, the Board may classify securities, persons, and matters within its jurisdiction, and prescribe different requirements for different classes. Every cause of action under this Act survives the death of any person who might have been a plaintiff or defendant. In what circumstances must the registrant disclose the name of the third party expert in its registration statement and obtain the third party’s consent to be named? After giving notice and opportunity for a hearing, the Commissioner may, in addition to any other remedies, issue an order which assesses an administrative fine against any person or company found to have: (1) engaged in fraud or a fraudulent practice in connection with: (a) the offer for sale or sale of a security; or. D. Knowingly violate a cease and desist order issued by the commissioner under the authority of Section 23A, 23B, or 23-2 of this Act shall be deemed guilty of a felony of the third degree. When the Commissioner makes a written finding that the terms of the escrow agreement have been fully met, the bank or trust company shall transfer such funds to the proposed or existing corporation and its executive officers for the purpose of permitting it to use such securities or money in its business. (3) "Securities professional" means an agent, an investment adviser representative, or a person who serves in a supervisory or compliance capacity for a dealer or investment adviser. Answer: No. J. B. For examples of the types of activities of a third party, such as a financial advisor, that are consistent with the Section 3(a)(9) exemption, see the Seaman Furniture Co., Inc. no-action letter (Oct. 10, 1989) issued by the Division. Question: A company privately placed convertible securities in reliance on the exemption provided by Section 4(2). If the Commissioner is satisfied that the applicant for a dealer's or investment adviser's certificate of registration has complied with the requirements of the Act above, that the applicant has filed a written consent to service as and when required by Section 8 of this Act, and upon the payment of the fees required by Section 35 of this Act, the Commissioner shall register the applicant and issue to it or him a registration certificate, stating the principal place of business and address of the dealer or investment adviser, the names and business addresses of all persons interested in the business as principals, officers, directors or managing agents, and the fact that the dealer or investment adviser has been registered for a current calendar year as a dealer in securities or as an investment adviser. (6) payment is not accepted from the offeree and no contract of sale is made before registration is effective under Subsection B or C of Section 7 or a permit is granted under Section 10. [Nov. 26, 2008]. These financial statements shall reflect the financial condition of the issuer as of a date not more than ninety (90) days prior to the date of such filing with the Commissioner; (7) A copy of the prospectus, if any, describing such securities; (8) Filing of a consent to service of process conforming to the requirements of Section 8 of this Act, if the issuer is registering the securities and is not a resident of this state or is not incorporated under the laws of this state. H. If a limited partnership, either a copy of its Articles of Copartnership or a verified statement of the plan of doing business. The amended notice shall be retroactive to the date of the initial filing. 1 April 2010 [ P.U. The staff believes that the representations may be provided either in the prospectus or in correspondence submitted in connection with the filing. The payment of the fee prescribed by this Section is not an admission that the transactions or securities were not exempt and is not admissible as evidence in a suit or proceeding for failure to register the securities. Upon request by the commissioner pursuant to Subsection A of this Section 25-1, and if it appears to the attorney general that the facts enumerated in Paragraphs (1) through (3) of Subsection A of this Section 25-1 exist with respect to any person or company, the attorney general may bring an action in the name and on behalf of the State of Texas for the appointment of a receiver for such person or company. [Nov. 26, 2008], STAY CONNECTED An indictment for an offense under Subsection C of Section 29 may be brought only before the fifth anniversary of the day on which the offense is committed. An offeror who sells securities in this State in excess of the aggregate amount of securities registered for the offering may apply to register the excess securities by paying three times the difference between the initial fee paid and the fee required under Subsection B(2) of Section 35, plus, if the registration is no longer in effect, interest on that amount computed at the rate provided by Section 302.002, Finance Code, from the date the registration was no longer in effect until the date the subsequent application is filed, for the securities sold to persons within this State, plus the amendment fee prescribed by Subsection A(1) of Section 35. 149, Chapter 67, and House Bill No. (b) The rules for authorized small business development entities must: (1) allow authorized small business development entities to list on their web portals offerings of securities by issuers in which they are financially interested; (2) allow authorized small business development entities and their portals to list offerings of securities without offering investment advice; (3) allow authorized small business development entities to subcontract the operations of a crowdfunding web portal to a third party as permitted by Board rule; and. Answer: No, as there is no sale of the dividend shares under the Securities Act. (4) such sale is not directly or indirectly for the purposes of providing or furthering any scheme to violate or evade any provisions of this Act. C. Hearings under this Section are subject to the requirements of Chapter 2001, Government Code. [Nov. 26, 2008]. Each witness required to attend before the Commissioner shall receive a fee, for each day's attendance, in an amount set by Board rule. Copies of all papers, instruments, or documents filed in the office of the Commissioner, certified by the Commissioner, shall be admitted to be read in evidence in all courts of law and elsewhere in this state in all cases where the original would be admitted in evidence; provided, that in any proceeding in the court having jurisdiction, the court may, on cause shown, require the production of the originals. An exchange offer is a single transaction, and a transaction that has commenced privately must be completed privately. Question: Would Section 3(a)(9) be available for the conversion of preferred stock into common stock if a condition of the conversion is the waiver of accrued but unpaid dividends on the preferred stock? The Commissioner or the Commissioner's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. In any such court proceedings, the Attorney General may apply for and on due showing be entitled to have issued the court's subpoena requiring the forthwith appearance of any defendant and the defendant's employees or agents and the production of documents, books and records as may appear necessary for the hearing of such petition, to testify and give evidence concerning the acts or conduct or things complained of in such application for injunction. A. B. Over time, the staff has observed some variation in representations that are being provided. Answer: There is no prohibition in Securities Act Rule 147 regarding general advertising or general solicitation. The company agreed to file a registration statement within two months after the private placement closing to register the resale of the common stock issuable on conversion of the convertible securities. I. Repealed. (c) In this section, “authorized small business development entity” means: (1) a Type A corporation authorized under Chapter 504, Local Government Code; (2) a Type B corporation authorized under Chapter 505, Local Government Code; (3) a nonprofit organization authorized by an agency or authority of the federal government to distribute housing and community development block grants; (6) a nonprofit community development financial institution certified by the Community Development Financial Institutions Fund. Since Company B will exist before and after the merger and will exchange notes with its own security holders, counsel took the position that Section 3(a)(9) would exempt the exchange from registration. These press releases are generally identified as a “Fee Rate Advisory.” [Nov. 26, 2008]. (D) A finding by a court of a violation of this Act or Chapter 17, Business & Commerce Code, is a sufficient ground for nonrecognition of a foreign country judgment. Title. F. If a dealer or investment adviser submits reports of suspected financial exploitation of a vulnerable adult to the Securities Commissioner and the department under Subsection C of this section, the dealer or investment adviser may at the time the dealer or investment adviser submits the reports also notify a third party reasonably associated with the vulnerable adult of the suspected financial exploitation, unless the dealer or investment adviser suspects the third party of financial exploitation of the vulnerable adult. A registration statement under this section shall be filed with the Commissioner by the issuer or any registered dealer, shall contain the following information, and shall be accompanied by the following documents: a. [Nov. 26, 2008], 239.15 As a general matter, once an option becomes exercisable, an offer is made pursuant to Section 5. B. To the extent not already provided for by this Act, any intraagency or interagency notes, memoranda, reports, or other communications consisting of advice, analyses, opinions, or recommendations shall be treated as confidential by the Commissioner and shall not be disclosed to the public, except under order of court, for good cause shown. Answer: No, because the proposed exchange of the parent guarantee for the subsidiary’s debt involves two different issuers. An alternative would be for the shelf registration statement at the outset to include a sufficient amount of common stock to cover the issuance pursuant to the convertible series. At the time of making the deposits, as herein provided for, the dealer or issuer shall furnish to such bank or trust company, and to the Commissioner, the names of the persons purchasing or subscribing for such securities, and the amount of money paid in by each. Question: Where the offer and sale of convertible securities or warrants are being registered under the Securities Act, and such securities are convertible or exercisable within one year, must the underlying securities be registered at that time? A court may enter an order extending or shortening a hold or providing other relief. Must the issuer register the common stock on the shelf registration statement at the time of effectiveness? [Nov. 26, 2008], 219.02 Tracing of commercial paper proceeds to actual “current transactions” is not necessary under Section 3(a)(3) where the proceeds will be commingled with the issuer’s general funds and such funds will be applied in part to current transactions equal in amount to the commercial paper proceeds. D. The Commissioner shall require as a condition of registration for all registrations granted after the effective date of this Subsection D that the applicant (and, in the case of a corporation or partnership, the officers, directors or partners to be licensed by the applicant) pass successfully a written examination to determine the applicant's qualifications and competency to engage in the business of dealing in and selling securities as a dealer or agent, or rendering services as an investment adviser or investment adviser representative. Answer: Yes. Answer: A company may rely on General Instruction I.B.6. Section 2. It appears that the purpose of this procedure is to provide the purchasers with registered (rather than restricted) securities. 1 page) Ask a question Section 18, Water Industry Act 1991 Toggle Table of Contents Table of Contents. Similarly, if a holder actually tenders its subject securities — for example, by signing a transmittal form — before the filing of the Form S-4, the staff has objected to the subsequent registration of the exchange offer on Form S-4 for any of the holders of the subject securities because offers and sales have already been made and completed privately. Of course, a company would not be limited from entering into additional agreements and registering resales or registering primary offerings on Form S-1. (4) has, other than as a consumer, a financial interest in a business entity engaged in business as a securities dealer or investment adviser. Answer: Yes. Report fraud, waste, or abuse of state resources to the State Auditor's Office or call (800) 892-8348. [Nov. 26, 2008]. Section 78c(a)(12)), as amended, as an exempt security for purposes of that Act. E. Time of Tender. If conduct constituting an offense under Section 29 of this Act is performed by an agent acting in behalf of a corporation or association and within the scope of the person's office or employment, the corporation or association is criminally responsible for the offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by: (1) a majority of the governing board acting in behalf of the corporation or association; or. [Nov. 26, 2008], 218.01 Securities of an investment company formed to invest only in bank stock would not be exempt securities under Section 3(a)(2) because the investment company is not a bank. C. Subject to Chapter 575, Government Code, the Commissioner may accept grants and donations from a person who is not affiliated with the securities industry or from a nonprofit association, regardless of whether the entity is affiliated with the securities industry, for use in providing investor education initiatives. This condition may be waived as to any applicant or class of applicants by action of the State Securities Board. A. 63.] For registered offerings, Rule 135 would permit a simple notice describing the purpose and terms of such an offering, but would not allow the solicitation of indications of interest. N. The Board by rule shall prescribe the form and content of the report required to be submitted by a dealer or investment adviser to the Securities Commissioner under Subsection C of this section. On the other hand, if a purchaser was unconditionally committed to make the installment payment by the initial decision to invest, the purchaser need not remain a resident during the installment period. A dealer or investment adviser may extend a hold placed on any transaction under Subsection G of this section for a period not to exceed 30 business days after the expiration of the period prescribed by Subsection H of this section if requested by a state or federal agency or a law enforcement agency investigating the suspected financial exploitation. At the same time, the issuer will increase the interest rate. Sell, offer for sale or delivery, solicit subscriptions to and orders for, dispose of, invite orders for, or who shall deal in any other manner in any security or securities issued after September 6, 1955, unless said security or securities have been registered or granted a permit as provided in Section 7 of this Act, shall be deemed guilty of a felony of the third degree. Filings involving such plans require an analysis of Section 5 and Rule 415 issues with respect to all securities involved in the offerings. (2) the fifth business day after the date the dealer or investment adviser is notified of the suspected financial exploitation under Subsection B of this section or otherwise has cause to believe that the suspected financial exploitation has occurred, is occurring, or has been attempted. 4790 (Jul. If an unincorporated association or organization under the laws of any other state, territory or government, or having its principal place of business therein, a copy of its Articles of Association, Trust Agreement or other form of organization. Every permit qualifying securities shall be in such form as the  Commissioner may prescribe, and shall recite in bold type that the issuance thereof is permissive only, and does not constitute a recommendation or endorsement of the securities permitted to be issued. If any person or company should take exception to the action of the Commissioner in failing or refusing to register and issue certificate for a dealer or investment adviser or evidence of registration for an investment adviser representative or agent under Section 15 or 18 of this Act, in issuing an order under Section 23 or 23-2 of this Act, or in any other particular where this Act specifies no other procedure, the complaining party may request a hearing before the Commissioner or before a hearings officer as now or hereafter required by law. [Nov. 26, 2008], 239.08 An issuer may extend the exercise period for warrants and/or reduce the warrant exercise price through the filing and issuance of an appropriate Rule 424(b) prospectus supplement prior to the initial expiration date of the warrants. (b) the name and address of the bank where the amount of the offer will be paid. The 401(k) plan permits both employer and employee contributions to be invested through a self-directed “brokerage window.” If the 401(k) plan does not prohibit employee contributions to be invested in employer securities through the “brokerage window,” would this involve an offer of employer securities requiring Securities Act registration? I. Answer: Unless the transaction involving the issuance of the convertible security meets the conditions under which a company may file a registration statement for resale of privately placed securities before their actual issuance (commonly known as a “PIPE,” or private-investment, public-equity transaction, as discussed below), the registration for resale of the common stock underlying the unissued convertible security would not be viewed as a valid secondary offering. Question: Registration statements covering securities offered and sold in business combinations and reorganizations often describe or include opinions from investment bankers on the financial fairness of the transaction to prospective purchasers in the transaction. [Aug. 14, 2009]. G. Make an offer of any security within this State that is not in compliance with the requirements governing offers set forth in Section 22 of this Act shall be deemed guilty of a state jail felony. C. Unless a person against whom the emergency order is directed requests a hearing in writing before the 31st day after the date it is served on the person, the emergency order is final and nonappealable as to that person. (ii) he rejects the offer in writing within 30 days of its receipt and expressly reserves in the rejection his right to sue, in which case he may sue within one year after he so rejects. For this purpose, the Commissioner may require, by subpoena or summons issued by the Commissioner, the attendance and testimony of witnesses and the production of all records, whether maintained by electronic or other means, relating to any matter which the Commissioner has authority by this Act to consider or investigate, and may sign subpoenas, administer oaths and affirmations, examine witnesses and receive evidence; provided, however, that all information of every kind and nature received in connection with an investigation and all internal notes, memoranda, reports, or communications made in connection with an investigation shall be treated as confidential by the Commissioner and shall not be disclosed to the public except under order of court for good cause shown. In the course of an investigation looking to the enforcement of this Act, or in connection with the application of a person or company for registration or to qualify securities, the Commissioner or Deputy Commissioner shall have free access to all records and reports of and to any department or agency of the state government. (2) a fee in the amount determined under Sections 35 and 41 of this Act. (a) an offer of securities made by a small business issuer or by the seller of securities of a small business issuer that is in an aggregate amount that does not exceed $5 million; and. Q: A company sponsors a 401(k) plan that does not offer an employer securities fund in which employee contributions may be invested. If so, the registration statement should cover resales by the purchasers, not issuances to the purchasers, provided that the purchasers have become irrevocably bound to acquire the securities prior to the filing of the registration statement subject only to conditions outside their control and the purchase price is established at the time of the private placement and is not contingent on the market price at the time of effectiveness of the registration statement. A meaningful opportunity to withdraw would include the communication of a reasonable notice of important offering milestones, such as the filing of a request for effectiveness and the granting of effectiveness, a reasonable notice of material changes to the offering disclosure, and a final notice of the opportunity to withdraw at least one hour prior to acceptance of conditional offers. c. A statement of the maximum and minimum proposed offering prices and the maximum underwriting discounts and commissions has been on file for two full business days or such shorter period as the Commissioner expressly permits and the offering is made within those limitations. P. The execution by a dealer of an unsolicited order for the purchase of securities, where the initial offering of such securities has been completed and provided that the dealer acts solely as an agent for the purchaser, has no direct or indirect interest in the sale or distribution of the security ordered, and receives no commission, profit, or other compensation from any source other than the purchaser. Question: An issuer proposes to retain a third party for the purpose of consulting with institutional investors as to what they would consider to be an acceptable exchange offer. E. Applicability. Section 1841 et seq. In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. A person who is appointed to and qualifies for office as a member of the Board may not vote, deliberate, or be counted as a member in attendance at a meeting of the Board until the person completes a training program that complies with this section. A prospectus supplement should be filed when the shareholder approval is obtained. Provided such sale is made without any public solicitation or advertisements: (a) the sale of any security by the issuer thereof so long as the total number of security holders of the issuer thereof does not exceed thirty-five (35) persons after taking such sale into account; (b) the sale or distribution by an issuer or a participating subsidiary of the issuer, if any, of a security under a bona fide thrift, savings, stock purchase, retirement, pension, profit-sharing, option, bonus, appreciation right, incentive, or similar written compensation plan or written compensation contract established by the issuer or its subsidiary for the benefit of employees, directors, general partners, managers, or officers of the issuer or subsidiary, for the benefit of its trustees if the issuer or subsidiary is a business trust, or for the benefit of consultants or advisors who provide to the issuer or subsidiary bona fide services unrelated to the offer or sale of securities in a capital-raising transaction; or. For the year in which the registration expiration date is changed, registration fees payable after the 60th day and before the 30th day before January 1st of the next year shall be prorated on a monthly basis so that each person shall pay only that portion of the registration fee that is allocable to the number of months during which the registration is valid. Question: An Exchange Act reporting company is conducting an exempt offering pursuant to Regulation S and Rule 144A and intends to include material non-public information in the offering memorandum to be distributed to investors in the exempt offering. Water (Fluoridation) Act 1985; and (b) in relation to a supply of such water by a water undertaker, the reference to the water undertakers concerned shall have effect as references to the water undertaker and the water authority concerned. Senate Bill 293, Chapter 160, Acts of the 66th Legislature, Regular Session, 1979. Question: If an issuer plans to conduct an intrastate offering pursuant to the Section 3(a)(11) exemption, may the issuer engage in general advertising or a general solicitation? Subdivision A — Dictionary of definitions. Similarly, if a note holder actually tenders its notes - for example, by signing a transmittal form - before the filing of the Form S-4, the staff has objected to the subsequent registration of the exchange offer on Form S-4 for any of the note holders because offers and sales have already been made and completed privately. The registration statement must identify the investor, in addition to the registered broker-dealer, as an underwriter in the base prospectus, a post-effective amendment or a prospectus supplement. “Act” means the Securities Industry Act, 1999; 1 of 1999. The policies, programs, plans, or procedures adopted under this subsection may authorize the dealer or investment adviser to report the suspected financial exploitation to other appropriate agencies and entities in addition to the Securities Commissioner and the department, including the attorney general, the Federal Trade Commission, and the appropriate law enforcement agency. [Nov. 26, 2008]. (3) If a person's registration has been expired for longer than ninety (90) days but less than two years, the person may renew the registration by filing a renewal application with the Commissioner and paying to the Board all unpaid renewal fees and a fee that is equal to the original application fee for the registration.

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