| (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 §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 fee provided for in the Texas Securities Act
(Act), §35.A(1) plus one-tenth of 1.0% of the aggregate amount
of federal covered securities proposed to be sold to persons located
within this state based on the price at which such securities are
to be offered to the public, as provided in the Act, §35.B(2).
(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) a fee of one-tenth of 1.0% of the aggregate amount
of federal covered securities described as being offered for sale,
but in no case more than $500, as provided in the Texas Securities
Act, §35.B(7).
(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 §114.2 of this
title (relating to Definitions).
(3) Money market status approved. Section 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 §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 §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 §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 §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, §5.O(9),
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) a fee of $500, as provided in the Act, §35.B(6);
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 fee provided for in the Act, §35.A(1),
plus one-tenth of 1.0% of the aggregate amount of federal covered
securities proposed to be sold to persons located within this state
based on the price at which such securities are to be offered to the
public, as provided in the Act, §35.B(2).
(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, §§35.B(2)
and 35-1.A; and
(ii) pay the amendment fee provided for in the Texas
Securities Act, §35.A(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% 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, §35.A(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% 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, §35-1.B.
(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, §§35-1
or 35-2.
(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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| Source Note: The provisions of this §114.4 adopted to be effective April 8, 1997, 22 TexReg 3219; amended to be effective December 2, 1997, 22 TexReg 12038; amended to be effective November 7, 1999, 24 TexReg 9608; amended to be effective May 2, 2000, 25 TexReg 3740; amended to be effective February 24, 2004, 29 TexReg 1643; amended to be effective June 21, 2011, 36 TexReg 3715; amended to be effective December 23, 2018, 43 TexReg 8089; amended to be effective November 12, 2019, 44 TexReg 6859 |
