Current through Register Vol. 63, No. 9, September 1, 2024
(1) An offer, but
not a sale, of a security made by or on behalf of an issuer for the sole
purpose of soliciting an indication of interest in receiving a prospectus (or
its equivalent) for such security is exempt under ORS
59.035(15) if
all of the following conditions are satisfied:
(a) The issuer is or will be a business
entity organized under the laws of one of the states or possessions of the
United States or one of the provinces or territories of Canada, is engaged in
or proposes to engage in a business other than petroleum exploration or
production or mining or other extractive industries and is not a "blank check
company," as such term is defined in OAR
441-045-0010(2);
(b) The offerer intends to conduct
its offering pursuant to Regulation A under the Securities Act of 1933 and
register the securities in Oregon under OAR
441-065-0020;
(c) At least 10 business days prior to the
initial solicitation of interest under this rule, the offerer files with the
Director:
(A) A completed solicitation of
interest application on a form prescribed by the Director along with any other
materials to be used to conduct solicitations of interest, including, but not
limited to, the script of any broadcast to be made and a copy of any notice to
be published;
(B) The minimum
registration fee as set in OAR
441-065-0001;
(C) A completed Form U-4 (salesperson
application available from the Securities Section) for at least one, but no
more than five, issuer salespersons (each such salesperson must be a bona fide
officer, director or employee of the issuer); and
(D) A salesperson licensing fee as set in OAR
441-175-0002 for each
salesperson.
(d) At
least five business days prior to usage, the offerer files with the Director
any amendments to the foregoing materials or additional materials to be used to
conduct solicitations of interest, except for materials provided to a
particular offeree pursuant to a request by that offeree;
(e) No Solicitation of Interest Form, script,
advertisement or other material which the offerer has been notified by the
Director not to distribute is used to solicit indications of interest;
(f) Except for scripted broadcasts
and published notices, the offerer does not communicate with any offeree about
the contemplated offering unless the offeree is provided with the most current
Solicitation of Interest Form at or before the time of the communication or
within five days from the communication;
(g) During the solicitation of interest
period, the offerer does not solicit or accept money or a commitment to
purchase securities;
(h) No sale
is made until at least seven days after delivery to the purchaser of a final
prospectus, or in those instances in which delivery of a preliminary prospectus
is allowed hereunder, a preliminary prospectus;
(i) The offerer does not know, and in the
exercise of reasonable care, could not know that the issuer or any of the
issuer's officers, directors, ten percent shareholders or promoters:
(A) Has filed a registration statement which
is the subject of a currently effective registration stop order entered
pursuant to any federal or state securities law within five years prior to the
filing of the Solicitation of Interest Form.
(B) Has been convicted within five years
prior to the filing of the Solicitation of Interest Form of any felony or
misdemeanor in connection with the offer, purchase or sale of any security or
any felony involving fraud or deceit, including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny, or conspiracy to
defraud.
(C) Is currently subject
to any federal or state administrative enforcement order or judgment entered by
any state securities administrator or the Securities and Exchange Commission
within five years prior to the filing of the Solicitation of Interest Form or
is subject to any federal or state administrative enforcement order or judgment
entered within five years prior to the filing of the Solicitation of Interest
Form in which fraud or deceit, including, but not limited to, making untrue
statements of material facts and omitting to state material facts, was found.
(D) Is subject to any federal or
state administrative enforcement order or judgment which prohibits, denies, or
revokes the use of any exemption from registration in connection with the
offer, purchase or sale of securities.
(E) Is currently subject to any order,
judgment, or decree of any court of competent jurisdiction temporarily or
preliminarily restraining or enjoining, or is subject to any order, judgment or
decree of any court of competent jurisdiction permanently restraining or
enjoining, such party from engaging in or continuing any conduct or practice in
connection with the purchase or sale of any security or involving the making of
any false filing with the state entered within five years prior to the filing
of the Solicitation of Interest Form.
(F) The prohibitions listed in paragraphs (A)
through (E) of this subsection shall not apply if the person subject to the
disqualification is duly licensed or registered to conduct securities related
business in the state in which the administrative order or judgment was entered
against such person or if the broker-dealer employing such party is licensed in
this state and the Form B-D filed with this state discloses the order,
conviction, judgment or decree relating to such person. No person disqualified
under this subsection may act in a capacity other than that for which the
person is licensed. Any disqualification caused by this action is automatically
waived if the agency which created the basis for disqualification determines
upon a showing of good cause that it is not necessary under the circumstances
that the exemption be denied.
(2) A failure to comply with any condition of
section (1) of this rule will not result in the loss of the exemption under ORS
59.035(15) for
any offer to a particular individual or entity if the offerer shows:
(a) The failure to comply did not pertain to
a condition directly intended to protect that particular individual or entity;
(b) The failure to comply was
insignificant with respect to the offering as a whole; and
(c) A good faith and reasonable attempt was
made to comply with all applicable conditions of section (1). Where an
exemption is established only through reliance upon this section (2), the
failure to comply shall nonetheless be actionable as a violation of the Act by
the Director under ORS
59.245 and
59.255 and constitute grounds
for denying, withdrawing or conditioning the exemption pursuant to 59.045 as to
a specific security or transaction.
(3) The offerer shall comply with the
requirements set forth below. Failure to comply will not result in the loss of
the exemption under ORS
59.035(15), but
shall be a violation of the Oregon Securities Law, be actionable by the
Director under 59.245 and 59.255, and constitute grounds for denying,
withdrawing or conditioning the exemption pursuant to 59.045 as to a specific
security or transaction:
(a) Any published
notice or script for broadcast must contain at least the identity of the chief
executive officer of the issuer, a brief and general description of its
business and products, and the following legends:
(A) AN OFFERING STATEMENT PURSUANT TO
REGULATION A RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION. INFORMATION CONTAINED IN THIS PRELIMINARY OFFERING
CIRCULAR IS SUBJECT TO COMPLETION OR AMENDMENT. THESE SECURITIES MAY NOT BE
SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME AN OFFERING CIRCULAR
WHICH IS NOT DESIGNATED AS A PRELIMINARY OFFERING CIRCULAR IS DELIVERED AND THE
OFFERING STATEMENT FILED WITH THE COMMISSION BECOMES QUALIFIED.
(B) THIS PRELIMINARY OFFERING CIRCULAR SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALLTHERE BE ANY SALES OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE LAWS OF ANY SUCH STATE.
(C) WE MAY ELECT TO SATISFY OUR OBLIGATION TO
DELIVER A FINAL OFFERING CIRCULAR BY SENDING YOU A NOTICE WITHIN TWO BUSINESS
DAYS AFTER THE COMPLETION OF OUR SALE TO YOU THAT CONTAINS THE URL WHERE THE
FINAL OFFERING CIRCULAR OR THE OFFERING STATEMENT IN WHICH SUCH FINAL OFFERING
CIRCULAR WAS FILED MAY BE OBTAINED; and
(b) All communications with prospective
investors made in reliance on this rule must cease after a registration
statement is filed in this state, and no sale may be made until at least 20
calendar days after the last communication made in reliance on this rule.
(4) The Director may
waive any condition of this exemption in writing, upon application by the
offerer and cause having been shown. Neither compliance nor attempted
compliance with this rule, nor the absence of any objection or order by the
Director with respect to any offer of securities undertaken pursuant to this
rule, shall be deemed to be a waiver of any condition of the rule or deemed to
be a confirmation by the Director of the availability of this rule.
(5) Offers made in reliance on this rule will
not result in a violation of ORS
59.055 by virtue of being
integrated with subsequent offers or sales of securities unless such subsequent
offers and sales would be integrated under federal securities laws.
(6) Issuers on whose behalf indications of
interest are solicited under this rule may not make offers or sales in reliance
on ORS 59.025(7),
59.035(5),
59.035(12) or
OAR 441-035-0050 until six months
after the last communication with a prospective investor made pursuant to this
rule.
Stat. Auth.: ORS
59.025(4) &
59.035(11)
Stats. Implemented: ORS
59.025(4),
59.035(11),
59.035(15)
& 59.285
