Texas Administrative Code
Title 7 - BANKING AND SECURITIES
Part 7 - STATE SECURITIES BOARD
Chapter 114 - FEDERAL COVERED SECURITIES
Section 114.4 - Filings and Fees
Universal Citation: 7 TX Admin Code ยง 114.4
Current through Reg. 49, No. 38; September 20, 2024
(a) Generally. Unless otherwise provided in subsection (b) of this section, prior to the initial offer of the federal covered securities in this state, the issuer shall provide to the Securities Commissioner:
(1) a
notice filing, consisting of:
(A) page 1 of a
Form U-1, Uniform Application to Register Securities, with items 1-6 completed,
or a document providing substantially the same information;
(B) if the issuer is an investment company,
Form NF, Uniform Investment Company Notice Filing; or
(C) if the issuer is a unit investment trust,
Form NF may be filed and the payment of the filing fee, set out in paragraph
(3) of this subsection, paid electronically through the EFD System.
(2) a consent to service of
process signed by the issuer, if required by §
RSA
114.3 of this title (relating to Consents to
Service of Process), if, previously, such a consent to service has not been
filed with the Securities Commissioner; and
(3) the fees provided for in the Texas
Securities Act, §4006.001(1) and §4006.055.
(b) Special circumstances.
(1) SEC Regulation D, Rule 506 offerings. In
connection with an offering described in both §
109.13(k) of this
title (relating to Limited Offering Exemptions) and SEC Regulation D, Rule 506,
at the time the Form D is filed with the SEC, but no later than 15 days after
the first sale of the federal covered securities in this state, the issuer
shall provide to the Securities Commissioner:
(A) a notice on Form D; and
(B) the fee as provided in the Texas
Securities Act, §4006.052.
(C)
The filing of Form D and the payment of the filing fee shall be made
electronically through the EFD System.
(2) Listed securities. No filing, consent to
service, or fee shall be required of an issuer offering federal covered
securities that are also "listed securities" as defined in §
RSA 114.2 of this
title (relating to Definitions).
(3) Money market status approved. Section
RSA
123.3 of this title (relating to Conditional
Exemption for Money Market Funds) sets forth the requirements for obtaining and
maintaining a money market designation and the reduced fee schedule available
to funds so designated. In connection with an offering of securities of an
issuer that has applied for and been granted money market status as provided in
§
RSA
123.3 of this title (relating to Conditional
Exemption for Money Market Funds), the issuer shall provide to the Securities
Commissioner:
(A) a consent to service of
process signed by the issuer, if required by §
RSA
114.3 of this title (relating to Consents to
Service of Process), if such a consent to service has not previously been filed
with the Securities Commissioner;
(B) any other filing required by §
RSA
123.3 of this title (relating to Conditional
Exemption for Money Market Funds) or subsection (f) of this section;
and
(C) the fee provided for in
§
RSA
123.3 of this title (relating to Conditional
Exemption for Money Market Funds).
(4) Secondary trading. A registered dealer or
issuer that chooses to comply with the Texas Securities Act,
§4005.019(b)(9)(B), by filing a form, shall provide to the Securities
Commissioner, prior to the sale of the securities in this state:
(A) a notice filing, consisting of page 1 of
a Form U-1, Uniform Application to Register Securities, with items 1-6
completed, or a document providing substantially the same
information;
(B) a consent to
service of process signed by the dealer or issuer, if such a consent to service
has not previously been filed with the Securities Commissioner;
(C) the fee as provided in the Act,
§4006.051; and
(D) a written
statement from the issuer that the issuer of such securities is in compliance
with the reporting requirements of the Securities Exchange Act of 1934,
§13 or §15(d), as applicable.
(5) SEC Regulation A, Tier 2. Prior to the
initial offer of the federal covered securities in this state, the issuer shall
provide to the Securities Commissioner:
(A) a
notice filing on either:
(i) Uniform Notice
Filing of Regulation A - Tier 2 Offering form; or
(ii) page 1 of a Form U-1, Uniform
Application to Register Securities, with items 1-6 completed, or a document
providing substantially the same information;
(B) a consent to service of process signed by
the issuer, if required by §114.3 of this title (relating to Consents to
Service of Process), and if the notice filing required by subparagraph (A) of
this paragraph is not made on the Uniform Notice Filing of Regulation A - Tier
2 Offering form; and
(C) the fees
provided for in the Act, §4006.001(1) and §4006.055.
(c) Supplemental reports.
(1) Unless otherwise provided in
paragraph (2) of this subsection, each applicant required to pay a fee in
connection with federal covered securities offered in this state shall submit
to the Securities Commissioner annual reports showing the amount of federal
covered securities authorized to be sold in Texas, the actual amount sold in
Texas, the consideration received therefor, and the amount of unsold securities
authorized to be sold in Texas. Upon completion of all offerings of federal
covered securities authorized for sale in Texas, a final sales report must be
filed with the Securities Commissioner showing the total aggregate amount of
federal covered securities authorized and sold in Texas and the total
consideration received therefor.
(2) This subsection does not apply to an
applicant proceeding pursuant to subsection (b)(1) or (b)(4) of this
section.
(d) Excess sales.
(1) Except as provided in paragraph
(2) of this subsection, an offeror who sells securities in this state in excess
of the amount of federal covered securities authorized may do the following:
(A) If the authorization is still in effect
an offeror may:
(i) request authorization for
the excess securities by paying three times the difference between the initial
fee paid and one-tenth of 1.0% of the aggregate amount of the securities sold
to persons in this state, as provided in the Texas Securities Act,
§4006.055 and §4006.151; and
(ii) pay the amendment fee provided for in
the Texas Securities Act, §4006.001(1).
(B) If the authorization is no longer in
effect an offeror may:
(i) request
authorization of the excess securities in accordance with subparagraph (A)(i)
of this paragraph, plus interest on the amount of fees owed computed at the
rate of 6.0% a year from the date the authorization was no longer in effect
until the date the subsequent request is made; and
(ii) pay the amendment fee provided for in
the Texas Securities Act, §4006.001(1).
(C) The authorization for the excess
securities shall be effective retroactively to the effective date of the
initial authorization for the offering.
(2) An offeror in an SEC Regulation D, Rule
506 offering, who paid less than the maximum fee prescribed in subsection
(b)(1) of this section and offered a greater amount of federal covered
securities than authorized may do the following:
(A) file an amended Form D disclosing the
amount of federal covered securities offered; and
(B) pay three times the difference between
the initial fee paid and the fee which should have been paid, plus interest on
the fee owed computed at the rate of 6.0% a year from the date the original
Form D was received by the Securities Commissioner until the date the amended
notice is received by the Securities Commissioner, as provided in the Texas
Securities Act, §4006.152.
(C)
The filing of Form D and the payment of the filing fee shall be made
electronically through the EFD System.
(3) After compliance with paragraph (2) of
this subsection, the amended Form D shall be effective retroactively to the
date of the initial filing.
(e) Requests for additional documents. The Securities Commissioner may, upon written request, require a copy of any document required to be filed with the SEC in connection with the offering or sale of the federal covered securities.
(f) Period of effectiveness.
(1) The initial authorization for federal
covered securities of an open-end investment company, as defined in the
Investment Company Act of 1940, shall be effective until two months after the
end of the issuer's fiscal year. After the initial authorization, the issuer or
its agent may renew the authorization by submitting, within two months after
the end of the issuer's fiscal year:
(A) a
notice filing, consisting of Form NF, Uniform Investment Company Notice Filing;
and
(B) payment of the appropriate
fees.
(2) The
authorization for federal covered securities of a unit investment trust, as
defined in the Investment Company Act of 1940, shall be effective until one
year from the date of effectiveness granted by the SEC.
(3) Any other authorization of federal
covered securities shall be effective for one year from the date the
authorization is accepted by the Securities Commissioner.
(4) The renewal of an authorization for
federal covered securities under this chapter may be renewed for additional
periods of one year if the notice filing and renewal fees are received prior to
the expiration date of the existing authorization. Failure to tender the
renewal fee prior to the expiration date may subject the issuer to higher fees,
pursuant to the Texas Securities Act, §§4006.151, 4006.152, or
4006.153.
(5) For SEC Regulation D,
Rule 506 offerings issued under special circumstances in subsection (b)(1) of
this section, the period of effectiveness extends from the date of the notice
filing until the offering is completed or terminated.
(g) Applicability of dealer and agent registration requirements. In conducting sales in this chapter, dealer and agent registration requirements of the Texas Securities Act and Board rules must be complied with.
(h) Preservation of fees. The fees provided in this section correspond to the filing or registration fees that would be collected pursuant to the Texas Securities Act in effect on the day before the effectiveness of the National Securities Markets Improvement Act of 1996, Public Law Number 104-290.
(i) Applicability of antifraud provisions. With regard to this chapter, the Texas Securities Act prohibits fraud or fraudulent practice in connection with the sale or offer for sale of federal covered securities.
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