0001| SENATE BILL 193 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| STUART INGLE | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO SECURITIES; AMENDING SECTION 58-13B-24 NMSA 1978 | 0012| (BEING LAWS 1986, CHAPTER 7, SECTION 24, AS AMENDED) TO CHANGE | 0013| REGISTRATION REQUIREMENTS. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. Section 58-13B-24 NMSA 1978 (being Laws 1986, | 0017| Chapter 7, Section 24, as amended) is amended to read: | 0018| "58-13B-24. PROVISIONS APPLICABLE TO REGISTRATION | 0019| GENERALLY.-- | 0020| A. A registration statement may be filed by the | 0021| issuer, any other person on whose behalf the offering is to be | 0022| made or a registered broker-dealer. | 0023| B. If a registration statement is withdrawn before | 0024| the effective date or a pre-effective stop order is entered | 0025| pursuant to Section 58-13B-25 NMSA 1978, the director shall | - 1 - 0001| retain the fee set forth in this subsection. ~[Except as | 0002| provided in Subsection C of this section]~ A person filing a | 0003| registration statement shall pay a filing fee of: | 0004| (1) one-tenth of one percent of the maximum | 0005| aggregate offering price at which the registered securities | 0006| are to be offered in New Mexico, but not less than three | 0007| hundred fifty dollars ($350) or more than two thousand five | 0008| hundred dollars ($2,500); or | 0009| (2) three hundred fifty dollars ($350) if the | 0010| person is a corporate issuer or a person acting on behalf of a | 0011| corporate issuer and is claiming an exemption from the | 0012| registration requirements of federal law regarding small | 0013| corporate offerings pursuant to Rule 504 of Regulation D (17 | 0014| CFR 230.504). | 0015| ~[C. An open-end management company or a face | 0016| amount certificate company as defined in the federal | 0017| Investment Company Act of 1940 may register an indefinite | 0018| amount of securities under a registration statement. The | 0019| registrant shall pay: | 0020| (1) a fee of five hundred dollars ($500) at | 0021| the time of filing; and | 0022| (2) within sixty days after the registrant's | 0023| fiscal year during which its registration statement is | 0024| effective, a fee of two thousand dollars ($2,000) or file a | 0025| report on a form the director by rule adopts, specifying its | - 2 - 0001| sale of securities to persons in this state during the fiscal | 0002| year and pay a fee of one-tenth of one percent of the | 0003| aggregate sale price of the securities sold to persons in the | 0004| state, but the latter fee shall not be less than three hundred | 0005| fifty dollars ($350) or more than two thousand five hundred | 0006| dollars ($2,500). | 0007| D. Except as permitted otherwise by Subsection C | 0008| of this section]~ | | 0009| C.| A registration statement must specify the | 0010| amount of securities to be offered in New Mexico and: | 0011| (1) the states in which a registration | 0012| statement or similar document in connection with the offering | 0013| has been or is to be filed; and | 0014| (2) any adverse order, judgment or decree | 0015| entered by the securities agency or administrator in any state | 0016| or by a court or the securities and exchange commission in | 0017| connection with the offering. | 0018| ~[E.]~ |D.| A document filed ~[under]~ |pursuant | 0019| to| the New Mexico Securities Act of 1986 or a predecessor | 0020| act, within five years before the filing of a registration | 0021| statement, may be incorporated by reference in the | 0022| registration statement if the document is currently accurate. | 0023| ~[F.]~ |E.| The director by rule or order may | 0024| permit the omission of an item of information or document from | 0025| a registration statement. | - 3 - 0001| ~[G.]~ |F.| In the case of a non-issuer offering, | 0002| the director may not require information ~[under]~ |pursuant | 0003| to| Section 58-13B-23 NMSA 1978 or Subsection ~[M]~ |L| of | 0004| this section unless it is known to the person filing the | 0005| registration statement or to the persons on whose behalf the | 0006| offering is to be made, or can be furnished by them without | 0007| unreasonable effort or expense. | 0008| ~[H.]~ |G.| In the case of a registration | 0009| ~[under]~ |pursuant to| Section 58-13B-22 or 58-13B-23 NMSA | 0010| 1978 by an issuer who has no public market for its shares and | 0011| no significant earnings from continuing operations during the | 0012| last five years or any shorter period of its existence, the | 0013| director by rule or order may require as a condition of | 0014| registration that the following securities be deposited in | 0015| escrow for not more than three years: | 0016| (1) a security issued to a promoter, control | 0017| person or affiliate within the three years immediately before | 0018| the offering or to be issued to such persons for a | 0019| consideration substantially less than the offering price; and | 0020| (2) a security issued to a promoter, control | 0021| person or affiliate for a consideration other than cash, | 0022| unless the registrant demonstrates that the value of the | 0023| noncash consideration received in exchange for the security is | 0024| substantially equal to the offering price for the security. | 0025| The director by rule or order may determine the | - 4 - 0001| conditions of an escrow required ~[under]~ |pursuant to| this | 0002| subsection, but the director may not reject a depository | 0003| solely because of location in another state. | 0004| ~[I.]~ |H.| The director by rule or order may | 0005| require as a condition of registration ~[under]~ |pursuant to| | 0006| Section 58-13B-22 or 58-13B-23 NMSA 1978 that the proceeds | 0007| from the sale of the registered security in New Mexico be | 0008| impounded until the issuer receives a specified amount from | 0009| the sale of the security. The director by rule or order may | 0010| determine the conditions of an impoundment arrangement | 0011| required ~[under]~ |pursuant to| this subsection, but the | 0012| director may not reject a depository solely because of its | 0013| location in another state. | 0014| ~[J.]~ |I.| If a security is registered pursuant | 0015| to Section 58-13B-21 or 58-13B-22 NMSA 1978, the prospectus | 0016| filed ~[under]~ |pursuant to| the |federal| Securities Act of | 0017| 1933 shall be delivered to each purchaser in accordance with | 0018| the prospectus delivery requirements of the |federal| | 0019| Securities Act of 1933. With respect to a security registered | 0020| ~[under]~ |pursuant to| Section 58-13B-21 or 58-13B-22 NMSA | 0021| 1978, the director by rule or order may require the delivery | 0022| of other material documents or information to each purchaser | 0023| concurrent with or prior to the delivery of the prospectus. | 0024| ~[K.]~ |J.| If a security is registered pursuant | 0025| to Section 58-13B-23 NMSA 1978, an offering document | - 5 - 0001| containing | 0002| information the director by rule or order designates shall be | 0003| delivered to each purchaser with or before the earliest of: | 0004| (1) the first written offer made to the | 0005| purchaser by or for the account of the issuer or another | 0006| person on whose behalf the offering is being made or by an | 0007| underwriter or broker-dealer who is offering part of an unsold | 0008| allotment or subscription taken by it as a participant in the | 0009| distribution; | 0010| (2) confirmation of a sale made by or for the | 0011| account of a person named in Paragraph (1) of this subsection; | 0012| (3) payment pursuant to a sale; or | 0013| (4) delivery pursuant to a sale. | 0014| ~[L.]~ |K.| A registration statement remains | 0015| effective for one year after its effective date unless the | 0016| director by rule or order extends the period of effectiveness. | 0017| All outstanding securities of the same class as a registered | 0018| security are considered to be registered for the purpose of a | 0019| non-issuer transaction while the registration statement is | 0020| effective, unless the director by rule or order provides | 0021| otherwise. A registration statement may not be withdrawn | 0022| after its effective date if any of the securities registered | 0023| have been sold in New Mexico, unless the director by rule or | 0024| order provides otherwise. No registration statement is | 0025| effective while a stop order is in effect ~[under]~ |pursuant | - 6 - 0001| to| Subsection A of Section 58-13B-25 NMSA 1978. | 0002| ~[M.]~ |L.| During the period that an offering is | 0003| being made pursuant to an effective registration statement, | 0004| the director by rule or order may require the person who filed | 0005| the registration statement to file reports, not more often | 0006| than quarterly, to keep reasonably current the information | 0007| contained in the registration statement and to disclose the | 0008| progress of the offering. | 0009| ~[N.]~ |M.| A registration statement filed | 0010| ~[under]~ |pursuant to| Section 58-13B-21 or 58-13B-22 NMSA | 0011| 1978 may be amended after its effective date to increase the | 0012| securities specified to be offered and sold. The amendment | 0013| becomes effective upon filing of the amendment and payment of | 0014| an additional filing fee, which shall be three times the fee | 0015| otherwise payable, calculated in the manner specified in | 0016| Subsection B of this section, with respect to the additional | 0017| securities to be offered and sold. The effectiveness of the | 0018| amendment relates back to the date or dates of sale of the | 0019| additional securities being registered. | 0020| ~[O.]~ |N.| A registration statement filed | 0021| ~[under]~ |pursuant to| Section 58-13B-23 NMSA 1978 may be | 0022| amended after its effective date to increase the securities | 0023| specified to be offered and sold, provided that the public | 0024| offering price and underwriters' discounts and commissions are | 0025| not changed from the respective amounts of which the director | - 7 - 0001| was informed. The amendment becomes effective when the | 0002| director so orders and relates back to the date of sale of the | 0003| additional securities being registered. A person filing an | 0004| amendment shall pay an additional filing fee, which shall be | 0005| three times the fee otherwise payable, calculated in the | 0006| manner specified in Subsection B of this section, with respect | 0007| to the additional securities to be offered and sold. | 0008| ~[P.]~ |O.| Pursuant to Section 106(c) of the | 0009| federal Secondary Mortgage Market Enhancement Act of 1984, any | 0010| securities ~[which]~ |that| are offered and sold pursuant to | 0011| Section 4(5) of the |federal| Securities Act of 1933 or that | 0012| are mortgage-related securities, as that term is defined in | 0013| Section 3(a)(41) of the |federal| Securities Exchange Act of | 0014| 1934, being 15 U.S.C. 78c(a)(41), are required to comply with | 0015| all applicable registration and qualification requirements of | 0016| the New Mexico Securities Act of 1986 and the rules ~[under]~ | 0017| |pursuant to| that act and shall not be treated as obligations | 0018| issued by the United States for purposes of that act. | 0019| ~[Q. The director, by rule or by order, may | 0020| require the filing of any or all of the following items with | 0021| respect to a federal covered security under Section 18(b)(2) | 0022| of the Securities Act of 1933: | 0023| (1) prior to the initial offer of such | 0024| federal covered security in New Mexico, all documents that are | 0025| part of a current federal registration statement filed with | - 8 - 0001| the United States securities and exchange commission under the | 0002| Securities Act of 1933, together with a consent to service of | 0003| process signed by the issuer and with a notification fee in an | 0004| amount equal to that which the person would have paid to | 0005| register or claim an appropriate exemption if the security | 0006| were not a federal covered security; | 0007| (2) after the initial offer of such federal | 0008| covered security in New Mexico, all documents that are part of | 0009| an amendment to a current federal registration statement filed | 0010| with the United States securities and exchange commission | 0011| under the Securities Act of 1933; or | 0012| (3) if the person is paying a notification | 0013| fee calculated according to the terms of Subsection C of this | 0014| section, an annual or periodic report of the value of such | 0015| federal covered securities offered or sold in New Mexico.]~ | 0016| |P. With respect to a federal covered security, as | 0017| defined in Section 18(b)(2) of the federal Securities Act of | 0018| 1993: | 0019| (1) prior to the offer of the security in New | 0020| Mexico, the following shall be filed by or on behalf of the | 0021| issuer: | 0022| (a) a notice of intent to sell the | 0023| security that provides: 1) the name and address of the | 0024| issuer; 2) a description of the securities to be offered; 3) | 0025| the name, address and telephone number of an authorized | - 9 - 0001| contact person; and 4) other information that the director | 0002| may, by rule or by order, require; | 0003| (b) a consent to service of process; | 0004| and | 0005| (c) a notification fee in the amount of | 0006| three hundred fifty dollars ($350); and | 0007| (2) the notice of intent and fee specified in | 0008| Paragraph (1) of this subsection shall be effective for a | 0009| period of one year from the date of filing with the director.| | 0010| ~[R.]~ |Q.| With respect to any security that is a | 0011| federal covered security ~[under]~ |pursuant to| Section | 0012| 18(b)(4)(D) of the federal Securities Act of 1933, the | 0013| director, by rule or by order, may require the issuer to file, | 0014| no later than fifteen days after the first sale of the federal | 0015| covered security in New Mexico, a notice containing the | 0016| information required by SEC Form D and a consent to service of | 0017| process signed by the issuer, together with a notification fee | 0018| in the amount of three hundred fifty dollars ($350). | 0019| ~[S.]~ |R.| The director, by rule or by order, may | 0020| require the filing of any document filed with the United | 0021| States securities and exchange commission ~[under]~ |pursuant | 0022| to| the federal Securities Act of 1933 with respect to a | 0023| federal covered security ~[under]~ |pursuant to| Section | 0024| 18(b)(3) or (4) of the federal Securities Act of 1933, | 0025| together with a fee to be determined by the director. | - 10 - 0001| ~[T.]~ |S.| The director may issue a stop order | 0002| suspending the offer and sale of a federal covered security, | 0003| except a federal covered security ~[under]~ |pursuant to| | 0004| Section 18(b)(1) of the |federal| Securities Act of 1933, if | 0005| he finds that: | 0006| (1) the order is in the public interest; and | 0007| (2) there is a failure to comply with any | 0008| condition established ~[under]~ |pursuant to| this section. | 0009| ~[U.]~ |T.| The director, by rule or otherwise, | 0010| may waive any or all of the provisions of this section." | 0011| Section 2. EFFECTIVE DATE.--The effective date of the | 0012| provisions of this act is July 1, 1998. | 0013|  |