Current through all regulations passed and filed through September 16, 2024
(A) An application
may be made pursuant to section
1707.391 of the
Revised Code to exempt, qualify or register securities when the only deficiency
is a failure to timely file or a failure to properly file with the division the
appropriate form due to excusable neglect and the issuer is not otherwise in
violation of section
1707.13
of the Revised Code.
(1) For the purposes of
this rule, "failure to timely file" means the failure to file an application to
exempt, qualify or register securities within the time required by the
applicable section of the Ohio Securities Act or the rules adopted
thereunder.
(2) For the purposes of
this rule, "failure to properly file" means the filing of an application to
exempt, qualify or register securities which was not proper because the
application was incomplete, because there was a clerical error made in
completing the application, because an error was made regarding the facts
underlying the application, or because the application was made on the wrong
form.
(3) For the purposes of this
rule, "date of sale," will be the
earlier of the date that a subscription agreement or its equivalent is signed
by the purchaser or the date that the purchaser transfers or loses control of
the purchase funds, or the date of disbursement of funds subject to an escrow
agreement specifically approved by the division or established in accordance
with the administrative rules of the division.
(B) For the purposes of section
1707.391 of the
Revised Code, "excusable neglect" includes, but
is not be limited to:
(1) The failure to file a form 3-Q with the
division within six months of the earliest date of sale of securities for which
exemption in reliance on division (Q) of section
1707.03 of
the Revised Code is sought;
(2) The failure to
file a form 3-Y with the division within six months of the earliest date of
sale of securities for which exemption in reliance on division (Y) of section
1707.03 of
the Revised Code is sought;
(3) The failure to
file a form 6 with the division within one month of the earliest date of sale
of securities for which registration by description in reliance on section
1707.08
of the Revised Code is sought;
(C) For the purposes of section
1707.391 of the
Revised Code, "excusable neglect" shall not include: any failure to timely or
properly file an application to exempt, qualify, or register securities by an
issuer who has itself, or together with its affiliates, filed more than two
applications for retroactive exemption, qualification, or registration within
twelve months of the date of the filing of the form 391 under consideration
unless the issuer establishes in writing to the division that there is good
cause to include the failure to timely or properly file within excusable
neglect.
(D) An application to
exempt, qualify or register securities pursuant to section
1707.391 of the
Revised Code shall include:
(1) A form 391
cover page attached to the properly completed appropriate form (e.g., form
3(Q), form U-1, etc.) which should have been timely or properly
filed;
(2) All exhibits required by
the form 391 and the appropriate form which should have been filed;
(3) A sworn statement from the issuer or its
legal counsel in a form acceptable to the division stating that no purchaser or
offeree of the securities was prejudiced by the failure to timely or properly
file; and
(4) A sworn statement
from the issuer or its legal counsel stating:
(a) The reason for the failure to timely or
properly file;
(b) The number of
times the issuer or an affiliate has filed a form 391 during the preceding
twelve months.
(E) The notice to an applicant of the denial
of an application based on a finding of lack of excusable neglect required by
section
1707.391 of the
Revised Code may be delivered by the division by any reasonable means,
including but not limited to telephone, telegram, transmission by any form of
public or private mail, oral communication, in person, or other electronic
means. Any telephone or other oral communication of the denial of an
application shall be promptly confirmed by the division in writing. The notice
shall include a brief statement of the reason or reasons for the division's
determination of a lack of excusable neglect.
(F) An issuer that has not timely or properly
made a notice filing with the division under division (X) of section
1707.03 of
the Revised Code
will file with the division
within six months of the earliest date of sale of
securities for which exemption based upon division (X) of section
1703.03
:
(1) A form D; and
(2) The fee required under division (X) of
section
1707.03 of
the Revised Code, unless previously submitted and the fee under section
1707.391 of the
Revised Code.
(G)
A notice filer which has not timely submitted a notice
filing under division (C) of section
1707.092 of the
Revised Code will submit to the division not later than six months of the
earliest date of sale for which the exemption is relied upon:
(1)
A notice filing
consisting of any document filed with the securities and exchange commission
pursuant to the Securities Act of 1933, 15 U.S.C. 77a et seq., together with
annual or periodic reports of the value of the securities sold or offered to be
sold to persons located in this state;
(2)
A consent to
service of process, if required under section
1707.11 of the
Revised Code, on either form 11 or form U-2, unless previously submitted;
and
(3)
The fees required under either division (A)(2)(a) or
(A)(2)(b) of section
1707.092 of the
Revised Code, unless previously submitted, and the required fees under section
1707.391 of the
Revised Code.
(H) An investment
company which has not timely or properly submitted a notice filing under
section
1707.092 of the
Revised Code or that has sold securities in excess of the amount designated on
an effective notice filing will promptly submit to the division:
(1) A notice filing consisting of either:
(a) A copy of the issuer's federal
registration statement as filed with the securities and exchange commission;
or
(b) A form U-1 or form NF, and a
copy of the issuer's prospectus and statement of additional
information.
(2) A
consent to service of process, if required under section
1707.11 of the
Revised Code, on either form 11 or form U-2, unless previously submitted;
and
(3) The fees required under
either division (A)(2)(a) or (A)(2)(b) of section
1707.092 of the
Revised Code, unless previously submitted, and the required fees under section
1707.391 of the
Revised Code.
