Rules & Regulations of the State of Tennessee
Title 0780 - Commerce and Insurance
Subtitle 0780-04 - Division of Securities
Chapter 0780-04-02 - Securities Registration and Exemptions
Section 0780-04-02-.12 - NOTICE FILINGS FOR COVERED SECURITIES
Universal Citation: TN Comp Rules and Regs 0780-04-02-.12
Current through September 24, 2024
(1) Initial notice filings.
(a) Covered securities
under T.C.A. §
48-1-125(a)(1)(A)
1. An initial notice filing for any covered
security under T.C.A. §
48-1-125(a)(1)(A),
intended for sale in this state, must contain:
(i) A copy of the issuer's prospectus and
statement of additional information;
(ii) Either (a) a completed
and properly executed notice filing form, designated under
0780-04-01-.04(4),
as applicable; or (b) a copy of the issuer's federal
registration statement as filed with the SEC;
(iii) A completed and properly executed
consent to service of process on Form U-2, or in such other format acceptable
to the Division, as provided under T.C.A. §
48-1-124(e),
which may be included in the notice filing form;
(iv) A completed and properly executed Form
U-2A, if applicable; and
(v) The
filing fee as provided under T.C.A. §
48-1-125(a)(1)(A)(ii).
2. An issuer of a covered security
under this subparagraph (1)(a) must make an initial notice filing with the
Division prior to the sale of such security in this state.
3. Notice filings for any covered security
under this subparagraph (1)(a) are effective for one (1) year commencing on the
later of the date the filing with the Division is completed or the SEC
effective date.
4. A notice filing
under this subparagraph (1)(a) may be filed with the Division by complying with
the requirements for electronic filing under paragraph (7) of this
Rule.
(b) Covered
securities under T.C.A. §
48-1-125(a)(1)(B)
1. An initial notice filing for a covered
security which the issuer plans to offer pursuant to Tier 2 of Regulation A (
17 C.F.R. §§
230.251
et seq.) must
contain:
(i) Either (a) a
completed and properly executed Uniform Notice Filing of Regulation A - Tier 2
Offering form; or (b) copies of all documents filed with the
SEC;
(ii) A completed and properly
executed consent to service of process on Form U-2, or in such other format
acceptable to the Division, as provided under T.C.A. §
48-1-124(e),
which may be included in the Uniform Notice Filing of Regulation A - Tier 2
Offering form;
(iii) A completed
and properly executed Form U-2A, if applicable; and
(iv) The filing fee as provided under T.C.A.
§
48-1-125(a)(1)(B)(iii).
2. An issuer planning to offer and
sell securities under this subparagraph (1)(b) must make an initial notice
filing with the Division no later than twenty-one (21) calendar days prior to
the initial sale in this state.
3.
Notice filings for any covered security under this subparagraph (1)(b) are
effective for one (1) year commencing on the date the filing with the Division
is completed.
4. A notice filing
under this subparagraph (1)(b) may be filed with the Division by complying with
the requirements for electronic filing under paragraph (7) of this
Rule.
(c) Covered
securities under T.C.A. §
48-1-125(a)(1)(C)
1. An initial notice filing for a covered
security exempted from federal registration under § 18(b)(4)(C) of the
1933 Act must contain:
(i) Either
(a) a completed and properly executed Form U-CF; or
(b) copies of all documents filed with the SEC;
(ii) A completed and properly executed
consent to service of process on Form U-2, or in such other format acceptable
to the Division, as provided under T.C.A. §
48-1-124(e),
which may be included in the Form U-CF;
(iii) A completed and properly executed Form
U-2A, if applicable; and
(iv) The
filing fee as provided under T.C.A. §
48-1-125(a)(1)(C)(i)(c).
2. If the issuer of a covered
security under this subparagraph (1)(c) has its principal place of business in
this state, the issuer must make an initial filing with the Division
concurrently when the issuer files its initial Form C with the SEC.
3. If the issuer of a covered security under
this subparagraph (1)(c) has its principal place of business outside this
state, but residents of this state have purchased fifty percent (50%) or
greater of the aggregate amount of the offering, the issuer must make an
initial notice filing with the Division upon learning that such purchases have
met the fifty percent (50%) threshold, and, in any event, no later than thirty
(30) days from the date of completion of the offering.
4. Notice filings for any covered security
under this subparagraph (1)(c) are effective for one (1) year commencing on the
date the filing with the Division is completed.
5. A notice filing under this subparagraph
(1)(c) may be filed with the Division by complying with the requirements for
electronic filing under paragraph (7) of this Rule.
(d) Covered securities under T.C.A. §
48-1-125(a)(1)(D)
1. An initial notice filing for a covered
security exempt from federal registration pursuant to Rule 506 of Regulation D
(
17
C.F.R. §
230.506) must contain:
(i) A copy of the completed and properly
executed Form D as filed with the SEC;
(ii) A completed and properly executed Form
U-2A, if applicable;
(iii) A
statement specifying the date of first sale in this state; and
(iv) The filing fee as provided under T.C.A.
§
48-1-125(a)(1)(D)(ii).
2. An issuer of a covered security
under this subparagraph (1)(d) must make an initial notice filing with the
Division no later than fifteen (15) days after the first sale of such security
in this state.
3. Notice filings
for covered securities under this subparagraph (1)(d) are effective for one (1)
year, commencing on the date the filing with the Division is completed, unless
the issuer conducts a continuous offering as provided under T.C.A. §
48-1-125(b)(4)
and subparagraph (3)(d) of this Rule.
4. A notice filing under this subparagraph
(1)(d) may be filed with the Division by complying with the requirements for
electronic filing under paragraph (7) of this Rule.
(2) Amendments to notice filings.
(a) After the initial offer of a covered
security in this state, all documents that are part of any amendments to a
federal registration statement or Form D filed with the SEC must be filed
concurrently with the Division.
(b)
An issuer filing an amendment to a notice filing for a covered security which
changes the name of the offering of securities must pay a processing fee as
provided under T.C.A. §
48-1-125(d)
upon filing the amendment with the Division.
(3) Renewal of notice filings.
(a) Covered securities under T.C.A. §
48-1-125(a)(1)(A)
1. Pursuant to T.C.A. §
48-1-125(b)(1),
a renewal of a notice filing for a covered security under this subparagraph
(3)(a) must contain:
(i) A copy of the
issuer's prospectus and statement of additional information;
(ii) Either (a) a completed
and properly executed notice filing form, designated under
0780-04-01-.04(4),
as applicable; or (b) a copy of the issuer's federal
registration statement as filed with the SEC;
(iii) A completed and properly executed
consent to service of process on Form U-2, or in such other format acceptable
to the Division, as provided under T.C.A. §
48-1-124(e),
which may be included in the notice filing form;
(iv) A copy of the completed and properly
executed Form U-2A submitted as part of the initial notice filing pursuant to
subparagraph (1)(a) of this Rule, if applicable; and
(v) The filing fee as provided under T.C.A.
§
48-1-125(a)(1)(A).
2. All forms, documents, and fees
required for renewal of a notice filing for a covered security under this
subparagraph (3)(a) must be filed with the Division no later than the close of
business on the tenth (10) business day prior to the date of expiration of the
current notice filing.
3. A notice
filing renewal under this subparagraph (3)(a) may be filed with the Division by
complying with the requirements for electronic filing under paragraph (7) of
this Rule.
(b) Covered
securities under T.C.A. §
48-1-125(a)(1)(B)
1. Pursuant to T.C.A. §
48-1-125(b)(2),
a renewal of a notice filing for a covered security under this subparagraph
(3)(b) must contain:
(i) Either
(a) a completed and properly executed Uniform Notice Filing of
Regulation A - Tier 2 Offering form; or (b) copies of all
documents filed with the SEC;
(ii)
A completed and properly executed consent to service of process on Form U-2, or
in such other format acceptable to the Division, as provided under T.C.A.
§
48-1-124(e),
which may be included in the Uniform Notice Filing of Regulation A - Tier 2
Offering form;
(iii) A copy of the
completed and properly executed Form U-2A submitted as part of the initial
notice filing pursuant to subparagraph (1)(b) of this Rule, if applicable;
and
(iv) The filing fee as provided
under T.C.A. §
48-1-125(b)(2).
2. All forms, documents, and fees
required for renewal of a notice filing for a covered security under this
subparagraph (3)(b) must be filed with the Division no later than the close of
business on the day prior to the date of expiration of the current notice
filing.
3. A notice filing renewal
under this subparagraph (3)(b) may be filed with the Division by complying with
the requirements for electronic filing under paragraph (7) of this
Rule.
(c) Covered
securities under T.C.A. §
48-1-125(a)(1)(C)
1. Pursuant to T.C.A. §
48-1-125(b)(3),
a renewal of a notice filing for a covered security under this subparagraph
(3)(c) must contain:
(i) Either
(a) a completed and properly executed Form U-CF; or
(b) copies of all documents filed with the SEC;
(ii) A completed and properly executed
consent to service of process on Form U-2, or in such other format acceptable
to the Division, as provided under T.C.A. §
48-1-124(e),
which may be included in the Form U-CF;
(iii) A copy of the completed and properly
executed Form U-2A submitted as part of the initial notice filing pursuant to
subparagraph (1)(c) of this Rule, if applicable; and
(iv) The filing fee as provided under T.C.A.
§
48-1-125(b)(3).
2. All forms, documents, and fees
required for renewal of a notice filing for a covered security under this
subparagraph (3)(c) must be filed with the Division no later than the close of
business on the day prior to the date of expiration of the current notice
filing.
3. A notice filing renewal
under this subparagraph (3)(c) may be filed with the Division by complying with
the requirements for electronic filing under paragraph (7) of this
Rule.
(d) Covered
securities under T.C.A. §
48-1-125(a)(1)(D)
1. Pursuant to T.C.A. §
48-1-125(b)(4),
notice filings for covered securities exempt from federal registration pursuant
to Rule 506 of Regulation D (
17
C.F.R. §
230.506) are effective for one
(1) year unless the issuer is conducting a continuous offering, and:
(i) The issuer annually submits to the
Division a completed and properly executed amended Form D;
(ii) The issuer annually submits to the
Division a copy of the completed and properly executed Form U-2A submitted as
part of the initial notice filing pursuant to subparagraph (1)(d) of this Rule,
if applicable;
(iii) The issuer
submits to the Division all additional amendments concurrent with its filings
with the SEC; and
(iv) The issuer
annually submits to the Division the filing fee as provided under T.C.A. §
48-1-125(b)(4).
2. If the issuer of a covered
security under this subparagraph (3)(d) elects to conduct a continuous
offering, all forms, documents, and fees must be filed with the Division no
later than the close of business on the day prior to the date of expiration of
the current notice filing.
3. A
notice filing renewal under this subparagraph (3)(d) may be filed with the
Division by complying with the requirements for electronic filing under
paragraph (7) of this Rule.
(e) Any notice filing, subject to renewal
which is not timely renewed, shall expire as provided under T.C.A. §
48-1-125(b)(1)-(4).
(f) A renewal of a notice filing for a
covered security shall not stay the expiration of the notice filing if:
1. Such renewal is deficient as determined by
the Division; and
2. Such
deficiency is not corrected prior to the expiration of the notice
filing.
(4) Deficient notice filings.
(a) An issuer who
has filed an initial or renewal notice filing for a covered security shall be
subject to a stop order of the commissioner suspending the offer or sale of
such covered security in this state, as provided under T.C.A. §
48-1-125(c),
if:
1. The filing is deficient as determined
by the Division by failing to satisfy the document filing requirements of
T.C.A. §
48-1-125(a)-(b)
and paragraphs (1) through (3) of this Rule; or
2. The filing is deficient as determined by
the Division by failing to satisfy the fee requirements of T.C.A. §
48-1-125(a)-(b)
and paragraphs (1) through (3) of this Rule; and
3. The deficiency is not corrected within ten
(10) business days of the issuer's receipt of notification from the Division,
or prior to the expiration of the notice filing in the case of
renewals.
(b) In any
case where the commissioner may issue a stop order, the issuer may be subject
to further orders of the commissioner pursuant to T.C.A. §
48-1-116.
(5) Failure to make notice filings.
(a) Any issuer who fails to make a
notice filing for a covered security to be sold in this state as set forth
under T.C.A. §
48-1-125
and this Rule shall be subject to a stop order of the commissioner, as provided
under T.C.A. §
48-1-125(c),
suspending the offer or sale of such securities in this state.
(b) For purposes of T.C.A. §
48-1-125(c)(2)
and this paragraph (5), a failure to make a notice filing cannot be promptly
remedied:
1. If the security is a covered
security other than a covered security exempt from federal registration under
§ 18(b)(4)(C) of the 1933 Act or Rule 506 of Regulation D (
17
C.F.R. §
230.506) and the delay in
making the notice filing as required under T.C.A. §
48-1-125(a)(1)(A)-(B)
exceeds ten (10) business days from the date
of the first sale of such security in this state; or
2. If the security is a covered security
exempt from federal registration under § 18(b)(4)(C) of the 1933 Act and:
(i) The delay in making the notice filing as
required under T.C.A. §
48-1-125(a)(1)(C)(ii)
exceeds ten (10) business days from the date of filing with the SEC;
or
(ii) The delay in making the
notice filing as required under T.C.A. §
48-1-125(a)(1)(C)(iii)
exceeds ten (10) business days from the date upon which the issuer became aware
that residents of this state purchased fifty percent (50%) or greater of the
aggregate amount of the offering, or, in any event, the notice filing exceeds
forty (40) calendar days from the date of the completion of the offering;
or
3. If the security is
a covered security exempt from federal registration pursuant to Rule 506 of
Regulation D (
17
C.F.R. §
230.506) and the delay in
making the notice filing as required under T.C.A. §
48-1-125(a)(1)(D)
exceeds twenty-five (25) calendar days from the date of the first sale of such
security in this state.
(6) Refusal to pay notice filing fees.
For purposes of this Rule, an issuer is deemed to refuse to pay the notice filing fee when:
(a)
The issuer is subject to a stop order under the provisions of T.C.A. §
48-1-125(c)
and part 2. of subparagraph (4)(a) of this Rule; or
(b) The issuer has failed to make a notice
filing as defined in subparagraph (5)(b) of this Rule, and includes a failure
to pay the appropriate notice filing fee.
(7) Electronic filing.
(a) All forms and documents required under
T.C.A. §
48-1-125
and this Rule which have been filed and recorded on the Electronic Data
Gathering Access and Retrieval (EDGAR) system, the Interactive Data Electronic
Applications (IDEA) system, the Electronic Filing Depository (EFD), or any
other electronic data gathering system either maintained by the SEC or approved
by the Division, may be utilized in lieu of filing such documents in paper
form.
(b) If an issuer making a
notice filing in this state elects to file electronically, the issuer making
the notice filing must:
1. Provide an accurate
filing number or other designation used by the SEC; and
2. Ensure that a printed or electronically
stored copy of all required documents and forms is immediately accessible to
the Division.
Authority: T.C.A. §§ 48-1-102(8)(F)(iv), 48-1-102(8), 48-1-108, 48-1-115, 48-1-116, 48-1-121, 48-1-124(e), and 48-1-125; Public Acts of 1997, Chapter 164, § 8; § 18 of the Securities Act of 1933, as amended by the National Securities Markets Improvement Act of 1996; and 17 C.F.R. § 230.487.
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