N.M. Admin. Code § 12.11.16.9

Current through Register Vol. 35, No. 21, November 5, 2024

Section 12.11.16.9 - FORMS RELATING TO EXEMPTION FROM REGISTRATION OF SECURITIES

A. Form 202X, notice of claim of exemption pursuant to Section 58-13C-202 X, shall be used to give notice of intent to claim the exemption afforded by Section 58-13C-202 X for offerings of issuers seeking no more than $2,500,000 from the sale of securities and shall include the following:

(1) general information regarding the company claiming the exemption including:

(a) name and mailing address of company;

(b) type of entity (corporation, limited partnership, limited liability company, limited liability partnership or other);

(c) date and place of creation (incorporation, organization, filing or date of partnership agreement);

(d) term of the entity (if applicable);

(e) purpose or objective of business;

(f) address where books and records, stock certificates or capital accounts are kept and by whom;

(g) name, address and telephone number of person who should be contacted about the notice of claim of exemption;

(2) information about the offering including:

(a) type of security, number of shares or units to be offered;

(b) offering price per share or unit;

(c) aggregate offering price;

(d) name and address of, and compensation to be received by, each person who will be effecting or attempting to effect sales of securities;

(e) if monies from sales of securities are to be escrowed until a certain amount is raised, a copy of the escrow agreement showing name and address of the escrow bank;

(f) general description of use of proceeds;

(g) general description of property, including location, in which such proceeds are to be invested;

(h) a statement as to whether the issuer, underwriter, or their affiliates, is subject to disqualification pursuant to Subsection C of 12.11.12.11 NMAC;

(i) a copy of the prospectus or offering memorandum describing the offering which will be utilized to offer the securities and comply with the disclosure requirements set forth in Subsection E of 12.11.12.11 NMAC and copies of all advertising or promotional literature;

(3) governing instruments including a copy of the articles of incorporation,, articles of organization, certificate of limited partnership or other instruments of creation of the issuer, including all amendments; and

(4) the signature and title of the person authorized to execute the notice of claim of exemption and the date of execution of the notice.

B. Form 202Y, notice of claim of exemption under Section 58-13C-202 Y, described in this subsection, shall be used by issuers that are not organized or incorporated in New Mexico to give notice of intent to claim the exemption afforded by Section 58-13C-202 Y for offerings of issuers that result in there being no more than 25 security holders. Form 202Y is optional for issuers organized or incorporated in New Mexico. Form 202Y shall include the following:

(1) general information regarding the company claiming the exemption including:

(a) name and mailing address of company;

(b) type of entity (corporation, limited partnership, limited liability company, limited liability partnership or other);

(c) date and place of creation (incorporation, organization, filing or date of partnership agreement);

(d) term of the entity (if applicable);

(e) purpose or objective of business;

(f) address where books and records, stock certificates or capital accounts are kept and by whom;

(g) estimated number of persons to whom offers will be made;

(h) number of current security holders;

(i) name and address of each person who will be effecting or attempting to effect sales of securities;

(2) copies of governing instruments including the articles of incorporation, articles of organization, certificate of limited partnership or other instruments of creation of the issuer, including all amendments;

(3) representations by the signator authorized to file the notice of claim of exemption that:

(a) the number of security holders will not in consequence of any sale made under the exemption afforded by Section 58-13C-202 Y exceed 25;

(b) sales have been and will be made only to buyers believed to be purchasing for investment;

(c) no commissions or other remunerations have been, are being, or will be paid or given, directly or indirectly, for soliciting prospective buyers except to broker-dealers and agents registered pursuant to the New Mexico Uniform Securities Act;

(d) no news releases, advertisements in newspapers, radio, television nor any other form of public advertising will be used in any manner to contact prospective buyers;

(e) the issuer understands that acceptance of the issuer's notice filing does not constitute approval or recommendation by the director of the securities division of the securities to be issued and sold;

(f) the promoters and persons listed in the notice pursuant to Subparagraph (i) of Paragraph (1) of Subsection B of this section understand the provisions of Section 58-13C-501 of the New Mexico Uniform Securities Act which states that it is unlawful for a person, in connection with the offer to sell, sale, offer to purchase or purchase of a security, directly or indirectly, to employ a device or artifice to defraud; make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement made, in light of the circumstances pursuant to which it is made, not misleading; or to engage in an act, practice or course of business that operates or would operate as a fraud or deceit upon another person;

(4) the signature and title of the person authorized to execute the notice of claim of exemption and the date of execution of the notice.

C. Form D, notice of sale of securities pursuant to Regulation D, shall be used for offerings made in compliance with Rules 504, 505 and 506 of Regulation D of the 1933 Securities Act.

D. Form 202N, notice of claim of exemption under Section 58-13C-202 N, shall be used to give notice of intent to claim the exemption afforded by Section 58-13C-202 N and shall include the following:

(1) general information regarding the company claiming the exemption with respect to offers and sales of its securities including:

(a) name and mailing address of company;

(b) type of entity (corporation, limited partnership, limited liability company, limited liability partnership or other);

(c) date and place of creation (incorporation, organization, filing or date of partnership agreement);

(d) term of the entity (if applicable);

(e) purpose or objective of business;

(f) address where books and records, stock certificates or capital accounts are kept and by whom;

(2) information regarding number of purchasers including:

(a) estimated number of persons to whom offers will be made in New Mexico;

(b) number of current security holders in New Mexico;

(c) date(s) securities acquired by security holders in New Mexico;

(d) total number of security holders inside and outside of New Mexico;

(e) date of issuer's last sale of securities;

(3) information about offering including:

(a) name and address of each person who will be effecting or attempting to effect sales of securities;

(b) aggregate amount of offering, type of security ((debt, equity (common); equity (preferred), partnership interests, membership interests));

(c) minimum investment that will be accepted from any individual security purchaser;

(4) copies of governing instruments including the articles of incorporation, articles of organization, certificate of limited partnership or other instruments of creation of the issuer, including all amendments;

(5) representations by the signator authorized to file the notice of claim of exemption that:

(a) the number of security holders in New Mexico will not in consequence of any sale made under the exemption afforded by Section 58-13C-202 N exceed ten during any twelve months;

(b) sales have been and will be made only to buyers believed to be purchasing for investment or the issuer reasonably believes that the securities of the issuer will be held by fifty or fewer investors following the offering and the aggregate offering does not exceed $1,000,000 during any twelve consecutive months, and specifying which alternative;

(c) no commissions or other remunerations have been, are being, or will be paid or given, directly or indirectly, for soliciting prospective buyer except to broker-dealers and agents registered pursuant to the New Mexico Uniform Securities Act;

(d) no news releases, advertisements in newspapers, radio, television nor any other form of public advertising will be used in any manner to contact prospective buyers;

(e) no commissions or other remunerations have been, are being, or will be paid or given, directly or indirectly, for soliciting prospective buyers except to broker-dealers and agents registered pursuant to the New Mexico Uniform Securities Act;

(f) the issuer understands that acceptance of the issuer's notice filing does not constitute approval or recommendation by the director of the securities division of the securities to be issued and sold;

(g) the promoters and persons listed in the notice pursuant to Subparagraph (i) of Paragraph (1) of Subsection B of this section understand the provisions of Section 58-13C-501 of the New Mexico Uniform Securities Act which states that it is unlawful for a person, in connection with the offer to sell, sale, offer to purchase or purchase of a security, directly or indirectly, to employ a device or artifice to defraud; make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement made, in light of the circumstances pursuant to which it is made, not misleading; or to engage in an act, practice or course of business that operates or would operate as a fraud or deceit upon another person;

(6) the signature and title of the person authorized to execute the notice of claim of exemption and the date of execution of the notice.

E. Notice of transaction, accredited investor exemption, shall be used for offerings of issuers which meet the criteria of 12.11.12.19 NMAC and shall include the following:

(1) general information regarding the company claiming the exemption including:

(a) name, mailing address, web site address and telephone number of company;

(b) type of entity (corporation, limited partnership, limited liability company, limited liability partnership or other);

(c) date and place of creation (incorporation, organization, filing or date of partnership agreement);

(d) identity of officers and directors, managing members or other individuals acting in a similar capacity, including names addresses and telephone numbers of each;

(e) purpose or objective of business;

(f) address where books and records, stock certificates or capital accounts are kept and by whom;

(g) name, address and telephone number of person who should be contacted about the notice of claim of exemption;

(2) information about the offering including:

(a) description of security ((debt, equity (common); equity (preferred), convertible, partnership interests, membership interests, other (specify));

(b) price per security;

(c) number of securities to be offered or sold;

(d) aggregate dollar amount of offering.

(3) description of business and business address;

(4) name of broker-dealer who has solicited or intends to solicit purchasers in New Mexico;

(5) representations by issuer that:

(a) sales of securities shall be made only to accredited investors as defined in 17 C.F.R. 230.501(a);

(b) the issuer is not an issuer in the development stage that either has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person;

(c) the issuer reasonably believes that all purchasers are purchasing for investment and not with the view to or for sale in connection with a distribution of the security; any resale of a security sold in reliance on this exemption within 12 months of sale, except a resale to an accredited investor or pursuant to a registration statement effective under applicable state securities laws, shall be presumed to be with a view to distribution and not for investment; securities issued under this exemption may only be resold pursuant to registration or an exemption under applicable state securities laws;

(d) the issuer is familiar with the conditions that must be satisfied to be entitled to the accredited investor exemption in New Mexico and understands that the issuer claiming the availability of this exemption has the burden of establishing that these conditions have been satisfied;

(e) the signator for the issuer has read this notification and knows the contents to be true and is duly authorized by the issuer to sign on the issuer's behalf; and

(6) the signature and title of the person authorized to execute the notice of claim of exemption and the date of execution of the notice.

F. Form NF, uniform investment company notice filing, shall be used by investment companies which are required to file notice under the New Mexico Uniform Securities Act.

N.M. Admin. Code § 12.11.16.9

12.11.16.9 NMAC - Rp, 12.11.16.9 NMAC, 1-1-2010