18 NCAC 06A .1208          TRANSACTIONS EXEMPT UNDER RULE .1206: FILING REQUIREMENTS

(a)  Not less than 10 business days prior to any sale of a security sold in reliance upon the exemption provided by Rule .1206 of this Section, which sale shall include but not be limited to the receipt by the issuer, or any person acting on the issuer's behalf of a signed subscription agreement of, or the receipt of consideration from, a purchaser, the issuer shall file with the administrator, or cause to be so filed, the following:

(1)           A Form D (Notice of Sales of Securities Pursuant to Regulation D and/or Uniform Limited Offering Exemption).  All parts of this form, including the Appendix, shall be completed.  The Form D shall be signed by a person with express written authorization to do so by the issuer, and shall be attached to a statement containing the supplemental information required by Paragraph (c) of this Rule.

(2)           A copy of any written document or materials proposed to be used in connection with the offer and sale of the securities to be sold; provided, however, if any such documents or materials are not available to be filed 10 business days prior to any sale of the securities to a person who resides in this State, they shall be filed when available, but, in any event, no later than five business days before any such sale.  Supplements or amendments to any such written document or materials shall be filed within 5 business days after delivery to any prospective purchaser of the securities.  Notwithstanding the foregoing, any written materials, disclosures required by G.S. 78A-13, and advertising subject to G.S. 78A-14 proposed to be used in connection with the offer and sale of viatical settlement contracts shall be filed with the Administrator not later than 10 days before the first sale of such securities in this State, and any supplements to such materials shall be filed with the Administrator not later than 5 days prior to their delivery to any prospective purchaser.

(3)           A consent to service of process naming the North Carolina Secretary of State as service agent using the Uniform Consent to Service of Process (Form U‑2) signed by the issuer and acknowledged before a notary public or similar officer; and accompanied by a properly executed Corporate Resolution (Form U‑2A), if applicable.

(4)           A non‑refundable filing fee as established by G.S. 78A-17(17), payable to the North Carolina Secretary of State.

(b)  The issuer shall file or caused to be filed with the administrator any amended Form D filed with the U.S. Securities and Exchange Commission in connection with the transaction, not later than five business days after such filing with the SEC.

(c)  To comply with Subparagraph (a)(1) of this Rule, the issuer shall file with the administrator a statement signed by a person with express written authorization to execute such statement on its behalf containing the following representations:

(1)           that the securities will be sold in reliance upon an exemption from the registration requirements of Section 5 of the Securities Act of 1933, as amended;

(2)           that, to the best of the issuer's knowledge, the issuer is not disqualified by the provisions of Rule .1207 of this Section from relying upon the exemption provided by Rule .1206 of this Section;

(3)           that the issuer will furnish to the administrator, upon written request, evidence of compliance with Rule .1206 of this Section;

(4)           that all persons who will be selling the securities in this state are in compliance with or exempt from the requirements of G.S. 78A‑36; and

(5)           that the issuer will notify the administrator in writing of the names and titles of all officers, directors, partners, or employees of the issuer who will be engaged in the offer or sale of the securities in this state.  Such notice to the administrator shall be made prior to any offer of securities in this state.

(d)  Any filing pursuant to this Rule shall be amended by filing with the administrator such information and changes as may be necessary to correct any material misstatement or omission in the filing.

(e)  The provisions of this Rule shall not apply to offers or sales of a security made pursuant to Rule .1206 of this Section if the security is offered to not more than five individuals who reside in this State, except for offers or sales of viatical settlement contracts.

 

History Note:        Authority G.S. 78A‑17(17); 78A‑49(a);

Eff. January 1, 1984;

Temporary Rule Eff. October 1, 1983, for a Period of 120 Days to Expire on January 29, 1984;

Amended Eff. September 1, 1990; October 1, 1988;

Temporary Amendment Eff. November 1, 2002; April 1, 2002;

Amended Eff. August 1, 2004; April 1, 2003.