0001| HOUSE BILL 319
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| LARRY A. LARRANAGA
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO SECURITIES; AMENDING SECTION 58-13B-24 NMSA 1978
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0012| (BEING LAWS 1986, CHAPTER 7, SECTION 24, AS AMENDED) TO CHANGE
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0013| REGISTRATION REQUIREMENTS.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 58-13B-24 NMSA 1978 (being Laws 1986,
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0017| Chapter 7, Section 24, as amended) is amended to read:
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0018| "58-13B-24. PROVISIONS APPLICABLE TO REGISTRATION
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0019| GENERALLY.--
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0020| A. A registration statement may be filed by the
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0021| issuer, any other person on whose behalf the offering is to be
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0022| made or a registered broker-dealer.
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0023| B. If a registration statement is withdrawn before
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0024| the effective date or a pre-effective stop order is entered
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0025| pursuant to Section 58-13B-25 NMSA 1978, the director shall
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0001| retain the fee set forth in this subsection. [Except as
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provided in Subsection C of this section] A person filing a
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0003| registration statement shall pay a filing fee of:
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0004| (1) one-tenth of one percent of the maximum
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0005| aggregate offering price at which the registered securities
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0006| are to be offered in New Mexico, but not less than three
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0007| hundred fifty dollars ($350) or more than two thousand five
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0008| hundred dollars ($2,500); or
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0009| (2) three hundred fifty dollars ($350) if the
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0010| person is a corporate issuer or a person acting on behalf of a
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0011| corporate issuer and is claiming an exemption from the
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0012| registration requirements of federal law regarding small
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0013| corporate offerings pursuant to Rule 504 of Regulation D (17
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0014| CFR 230.504).
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0015| [C. An open-end management company or a face
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amount certificate company as defined in the federal
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Investment Company Act of 1940 may register an indefinite
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amount of securities under a registration statement. The
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registrant shall pay:
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(1) a fee of five hundred dollars ($500) at
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the time of filing; and
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(2) within sixty days after the registrant's
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fiscal year during which its registration statement is
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effective, a fee of two thousand dollars ($2,000) or file a
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report on a form the director by rule adopts, specifying its
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sale of securities to persons in this state during the fiscal
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year and pay a fee of one-tenth of one percent of the
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aggregate sale price of the securities sold to persons in the
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state, but the latter fee shall not be less than three hundred
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fifty dollars ($350) or more than two thousand five hundred
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dollars ($2,500).
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D. Except as permitted otherwise by Subsection C
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of this section]
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0009| C. A registration statement must specify the
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0010| amount of securities to be offered in New Mexico and:
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0011| (1) the states in which a registration
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0012| statement or similar document in connection with the offering
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0013| has been or is to be filed; and
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0014| (2) any adverse order, judgment or decree
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0015| entered by the securities agency or administrator in any state
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0016| or by a court or the securities and exchange commission in
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0017| connection with the offering.
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0018| [E.] D. A document filed [under] pursuant
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0019| to the New Mexico Securities Act of 1986 or a predecessor
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0020| act, within five years before the filing of a registration
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0021| statement, may be incorporated by reference in the
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0022| registration statement if the document is currently accurate.
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0023| [F.] E. The director by rule or order may
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0024| permit the omission of an item of information or document from
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0025| a registration statement.
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0001| [G.] F. In the case of a non-issuer offering,
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0002| the director may not require information [under] pursuant
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0003| to Section 58-13B-23 NMSA 1978 or Subsection [M] L of
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0004| this section unless it is known to the person filing the
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0005| registration statement or to the persons on whose behalf the
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0006| offering is to be made, or can be furnished by them without
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0007| unreasonable effort or expense.
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0008| [H.] G. In the case of a registration
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0009| [under] pursuant to Section 58-13B-22 or 58-13B-23 NMSA
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0010| 1978 by an issuer who has no public market for its shares and
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0011| no significant earnings from continuing operations during the
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0012| last five years or any shorter period of its existence, the
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0013| director by rule or order may require as a condition of
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0014| registration that the following securities be deposited in
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0015| escrow for not more than three years:
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0016| (1) a security issued to a promoter, control
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0017| person or affiliate within the three years immediately before
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0018| the offering or to be issued to such persons for a
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0019| consideration substantially less than the offering price; and
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0020| (2) a security issued to a promoter, control
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0021| person or affiliate for a consideration other than cash,
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0022| unless the registrant demonstrates that the value of the
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0023| noncash consideration received in exchange for the security is
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0024| substantially equal to the offering price for the security.
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0025| The director by rule or order may determine the
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0001| conditions of an escrow required [under] pursuant to this
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0002| subsection, but the director may not reject a depository
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0003| solely because of location in another state.
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0004| [I.] H. The director by rule or order may
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0005| require as a condition of registration [under] pursuant to
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0006| Section 58-13B-22 or 58-13B-23 NMSA 1978 that the proceeds
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0007| from the sale of the registered security in New Mexico be
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0008| impounded until the issuer receives a specified amount from
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0009| the sale of the security. The director by rule or order may
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0010| determine the conditions of an impoundment arrangement
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0011| required [under] pursuant to this subsection, but the
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0012| director may not reject a depository solely because of its
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0013| location in another state.
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0014| [J.] I. If a security is registered pursuant
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0015| to Section 58-13B-21 or 58-13B-22 NMSA 1978, the prospectus
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0016| filed [under] pursuant to the federal Securities Act of
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0017| 1933 shall be delivered to each purchaser in accordance with
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0018| the prospectus delivery requirements of the federal
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0019| Securities Act of 1933. With respect to a security registered
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0020| [under] pursuant to Section 58-13B-21 or 58-13B-22 NMSA
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0021| 1978, the director by rule or order may require the delivery
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0022| of other material documents or information to each purchaser
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0023| concurrent with or prior to the delivery of the prospectus.
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0024| [K.] J. If a security is registered pursuant
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0025| to Section 58-13B-23 NMSA 1978, an offering document
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0001| containing
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0002| information the director by rule or order designates shall be
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0003| delivered to each purchaser with or before the earliest of:
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0004| (1) the first written offer made to the
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0005| purchaser by or for the account of the issuer or another
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0006| person on whose behalf the offering is being made or by an
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0007| underwriter or broker-dealer who is offering part of an unsold
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0008| allotment or subscription taken by it as a participant in the
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0009| distribution;
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0010| (2) confirmation of a sale made by or for the
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0011| account of a person named in Paragraph (1) of this subsection;
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0012| (3) payment pursuant to a sale; or
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0013| (4) delivery pursuant to a sale.
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0014| [L.] K. A registration statement remains
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0015| effective for one year after its effective date unless the
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0016| director by rule or order extends the period of effectiveness.
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0017| All outstanding securities of the same class as a registered
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0018| security are considered to be registered for the purpose of a
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0019| non-issuer transaction while the registration statement is
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0020| effective, unless the director by rule or order provides
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0021| otherwise. A registration statement may not be withdrawn
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0022| after its effective date if any of the securities registered
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0023| have been sold in New Mexico, unless the director by rule or
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0024| order provides otherwise. No registration statement is
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0025| effective while a stop order is in effect [under] pursuant
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0001| to Subsection A of Section 58-13B-25 NMSA 1978.
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0002| [M.] L. During the period that an offering is
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0003| being made pursuant to an effective registration statement,
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0004| the director by rule or order may require the person who filed
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0005| the registration statement to file reports, not more often
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0006| than quarterly, to keep reasonably current the information
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0007| contained in the registration statement and to disclose the
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0008| progress of the offering.
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0009| [N.] M. A registration statement filed
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0010| [under] pursuant to Section 58-13B-21 or 58-13B-22 NMSA
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0011| 1978 may be amended after its effective date to increase the
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0012| securities specified to be offered and sold. The amendment
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0013| becomes effective upon filing of the amendment and payment of
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0014| an additional filing fee, which shall be three times the fee
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0015| otherwise payable, calculated in the manner specified in
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0016| Subsection B of this section, with respect to the additional
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0017| securities to be offered and sold. The effectiveness of the
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0018| amendment relates back to the date or dates of sale of the
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0019| additional securities being registered.
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0020| [O.] N. A registration statement filed
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0021| [under] pursuant to Section 58-13B-23 NMSA 1978 may be
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0022| amended after its effective date to increase the securities
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0023| specified to be offered and sold, provided that the public
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0024| offering price and underwriters' discounts and commissions are
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0025| not changed from the respective amounts of which the director
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0001| was informed. The amendment becomes effective when the
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0002| director so orders and relates back to the date of sale of the
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0003| additional securities being registered. A person filing an
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0004| amendment shall pay an additional filing fee, which shall be
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0005| three times the fee otherwise payable, calculated in the
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0006| manner specified in Subsection B of this section, with respect
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0007| to the additional securities to be offered and sold.
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0008| [P.] O. Pursuant to Section 106(c) of the
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0009| federal Secondary Mortgage Market Enhancement Act of 1984, any
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0010| securities [which] that are offered and sold pursuant to
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0011| Section 4(5) of the federal Securities Act of 1933 or that
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0012| are mortgage-related securities, as that term is defined in
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0013| Section 3(a)(41) of the federal Securities Exchange Act of
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0014| 1934, being 15 U.S.C. 78c(a)(41), are required to comply with
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0015| all applicable registration and qualification requirements of
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0016| the New Mexico Securities Act of 1986 and the rules [under]
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0017| pursuant to that act and shall not be treated as obligations
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0018| issued by the United States for purposes of that act.
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0019| [Q. The director, by rule or by order, may
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require the filing of any or all of the following items with
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respect to a federal covered security under Section 18(b)(2)
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of the Securities Act of 1933:
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(1) prior to the initial offer of such
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federal covered security in New Mexico, all documents that are
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part of a current federal registration statement filed with
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the United States securities and exchange commission under the
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Securities Act of 1933, together with a consent to service of
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process signed by the issuer and with a notification fee in an
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amount equal to that which the person would have paid to
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register or claim an appropriate exemption if the security
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were not a federal covered security;
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(2) after the initial offer of such federal
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covered security in New Mexico, all documents that are part of
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an amendment to a current federal registration statement filed
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with the United States securities and exchange commission
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under the Securities Act of 1933; or
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(3) if the person is paying a notification
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fee calculated according to the terms of Subsection C of this
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section, an annual or periodic report of the value of such
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federal covered securities offered or sold in New Mexico.]
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0016| P. With respect to a federal covered security, as
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0017| defined in Section 18(b)(2) of the federal Securities Act of
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0018| 1993:
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0019| (1) prior to the offer of the security in New
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0020| Mexico, the following shall be filed by or on behalf of the
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0021| issuer:
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0022| (a) a notice of intent to sell the
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0023| security that provides: 1) the name and address of the
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0024| issuer; 2) a description of the securities to be offered; 3)
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0025| the name, address and telephone number of an authorized
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0001| contact person; and 4) other information that the director
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0002| may, by rule or by order, require;
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0003| (b) a consent to service of process;
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0004| and
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0005| (c) a notification fee in the amount of
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0006| three hundred fifty dollars ($350); and
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0007| (2) the notice of intent and fee specified in
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0008| Paragraph (1) of this subsection shall be effective for a
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0009| period of one year from the date of filing with the director.
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0010| [R.] Q. With respect to any security that is a
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0011| federal covered security [under] pursuant to Section
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0012| 18(b)(4)(D) of the federal Securities Act of 1933, the
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0013| director, by rule or by order, may require the issuer to file,
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0014| no later than fifteen days after the first sale of the federal
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0015| covered security in New Mexico, a notice containing the
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0016| information required by SEC Form D and a consent to service of
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0017| process signed by the issuer, together with a notification fee
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0018| in the amount of three hundred fifty dollars ($350).
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0019| [S.] R. The director, by rule or by order, may
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0020| require the filing of any document filed with the United
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0021| States securities and exchange commission [under] pursuant
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0022| to the federal Securities Act of 1933 with respect to a
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0023| federal covered security [under] pursuant to Section
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0024| 18(b)(3) or (4) of the federal Securities Act of 1933,
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0025| together with a fee to be determined by the director.
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0001| [T.] S. The director may issue a stop order
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0002| suspending the offer and sale of a federal covered security,
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0003| except a federal covered security [under] pursuant to
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0004| Section 18(b)(1) of the federal Securities Act of 1933, if
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0005| he finds that:
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0006| (1) the order is in the public interest; and
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0007| (2) there is a failure to comply with any
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0008| condition established [under] pursuant to this section.
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0009| [U.] T. The director, by rule or otherwise,
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0010| may waive any or all of the provisions of this section."
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0011| Section 2. EFFECTIVE DATE.--The effective date of the
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0012| provisions of this act is July 1, 1998.
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0013|
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