Current through Register Vol. 46, No. 39, September 25, 2024
(a)
General.
Documents to supplement or amend an offering
plan-collectively, amendment(s)-shall be
deemed part of the offering plan and shall meet the following
requirements:
(1) If the offering plan
does not comply with section
17.1(b) of this
Part due to change of events, the passage of time or any other reason, the
offering plan must be amended promptly.
(2) An amendment must include a
representation that all material changes of facts or circumstances affecting
the property or the offering are included, unless the changes were described in
prior amendment(s) submitted to but not yet filed with the Department of
Law.
(3) Except as otherwise
provided, an amendment to an offering plan shall be filed on the date indicated
in the letter issued by the Department of Law stating that the amendment has
been filed, and not sooner.
(4)
Amendments that have been filed with Department of Law must be attached to the
inside front cover of the offering plan before the amended plan is distributed
to the public. The cover of the offering plan must be stamped: "This plan has
been amended. See inside cover." Any revisions, additions or deletions of
specific language in the offering plan should reprint a sufficient portion of
the paragraph from the offering plan, as revised, so that the revised portion
of the offering plan may be understood easily. An offering plan that has been
amended extensively may be rewritten to incorporate the amendments into the
body of the plan.
(5) Amendments
must be served on offerees in accordance with section
17.1(f) of this
Part.
(b)
Procedure for submission of amendments.
Amendments must be mailed to or submitted during business
hours to the New York State Department of Law, Real Estate Finance Bureau, 28
Liberty Street, New York, NY 10005. Include the following when submitting an
amendment to the Department of Law:
(1) A transmittal letter, signed by the
attorney who prepared the amendment, that:
(i)
states the date the offering plan was filed;
(ii) identifies the subject amendment(s) in
numerical order;
(iii) states
whether prior amendments had been submitted to but not yet filed with the
Department of Law; and
(iv)
identifies, if possible, the attorney in the Department of Law who reviewed the
most recent submission.
(2) Three copies of the amendment to the
offering plan.
(3) Check (certified
or uncertified) for filing fees under G.B.L. section 352-e(7), payable to New
York State Department of Law, stapled or clipped to the transmittal letter
together with three copies of the form of receipt issued by the Department of
Law.
(4) Two copies of the offering
plan, including all filed amendments.
(5) One form RS-2.
If the amendment is submitted before the closing, or if the
amendment discloses the events that took place at the closing, the form must be
signed by the sponsor. If the amendment is submitted after the closing, the
form must be signed by one or more holders of unsold shares and must include
the sponsor or principals of sponsor if the sponsor or principals are holders
of unsold shares.
(c)
Extensions of offering
plans.
The term of the initial offer is 12 months, commencing on
the date indicated in the letter issued by the Department of Law stating that
the plan is filed. Any amendment extends the term of the offering for an
additional six-month term, unless the term is shorter by the provisions of the
amendment. In the absence of any amendments, an extension of the term must be
made by amendment before the end of the then current term, and must comply with
the provisions of section
17.5 of this Part and the
requirements set forth below. An extension of time is for an additional
six-month term.
(1) The amendment must
disclose all material changes, such as decreases or increases in maintenance
charges.
(2) If the closing has
occurred, the amendment must state:
(i) the
number of unsold shares remaining; and
(ii) the extent to which the sponsor controls
the board of directors.
