S.D. Admin. R. 20:08:04:115

Current through Register Vol. 50, page 162, June 24, 2024

Section 20:08:04:115 - Registration of securities by qualification

(1) A person seeking to register a security by qualification shall file completed Forms U-1 and U-2 and pay the fee required in SDCL 47-31B-305(b).

(2) Prospectus requirements. As a condition of registration, a prospectus, offering circular, or similar document meeting the requirements of subdivision (3), (4), and (5) shall be sent or given to each person to whom an offer is made by or for the account of the issuer or any other person on whose behalf the offering is made, or by any underwriter or broker-dealer who is offering part of an unsold allotment or subscription as a participant in the distribution. The document shall be sent or given either before or concurrently with the earlier of any of the following:

(a) Any written offer made to the person, otherwise than by means of public advertising;

(b) Confirmation of any sale to the person;

(c) Payment pursuant to any sale to the person; or

(d) Delivery of the security pursuant to any sale to the person.

(3) Unless otherwise permitted by the division, the outside front cover of the prospectus, limited to one page, shall meet the requirements of any form under the Securities Act of 1933 or shall contain substantially the following information:

(a) Name and location of issuer and its type of organization;

(b) Designation of securities offered;

(c) Per share or unit and aggregate public offering price, underwriting or selling commissions and discounts and net proceeds to offeror;

(d) Name of managing underwriter or broker-dealer or statement that the securities are being offered by the issuer;

(e) A statement describing the anticipated secondary market for the securities being offered, including the identity of anticipated market for the securities being offered, including the identity of anticipated market makers;

(f) Date of prospectus;

(g) A cross-reference to the risk factors section, including the page number where it appears in the prospectus. The cross-reference shall be highlighted by prominent type or in another manner;

(h) The following information shall appear on the cover page in bold-face type on any prospectus, offering circular, or similar document as follows:

(i) NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE; or

(ii) NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

(i) Such other information as the director may permit or require.

(4) Disclosure: The prospectus shall contain a full disclosure of all material facts relating to the issuer and the offering and sale of the registered securities including the information required in SDCL 47-31B-304(b), including the information required in SDCL 47-31B-304(b)(1) to (18), inclusive. The division will accept the Form U-7 disclosure document as adopted in amended form on September 28, 1999, by the North American Securities Administrators Association, Inc. ("NASAA").

(5) The disclosure-related provisions of the NASAA statements of policy or guidelines may be used by the division for purposes of reviewing the adequacy of disclosure.

(6) Amendments: At the end of each period of not more than one year from the effectiveness of the registration statement, or in the event of any material change relating to the issuer or the securities subsequent to the filing of a prospectus, an amended prospectus shall be filed reflecting any such changes, and a current disclosure of all material facts relating to the issuer and the securities, including financial statements. No further solicitations or sales of the securities may be made thereafter until such amended prospectus has been filed with the division.

(7) Quarterly reports: Quarterly reports of sales of securities shall be filed with the division by all issuers of public offerings registered in this state pursuant to SDCL 47-31B-303 and 47-31B-304, unless the maximum fee has been paid as set forth in SDCL 47-31B-305(b). These reports shall be filed within 30 days of the end of each calendar quarter and shall contain information regarding sales of securities made in this state as set forth on the state Quarterly Report of Sales Form. A quarterly report shall be filed regardless of whether any sales were made in South Dakota in that calendar quarter.

(8) Annual reports: All issuers of securities registered pursuant to SDCL 47-31B-303 and 47-31B-304 who have not paid the maximum fee as set forth in SDCL 47-31B-305(b), shall file annual reports with the division during the time a registration statement is effective. The annual report shall consist of a copy of the annual corporate report to shareholders, including audited financial statements, and must be accompanied by the fee required in SDCL 47-31B-305(h). The annual report shall be filed within 90 days after the end of the issuer's fiscal year.

(9) Final reports: All issuers of securities registered pursuant to SDCL 47-31B-303 and 47-31B-304 who have not paid the maximum fee as set forth in SDCL 47-31B-305(b), must file a final report of sales of securities using the state Quarterly Report of Sales Form with the division. The final report shall be filed within 30 days after the termination of the registration, regardless of whether termination is by expiration, revocation, or voluntary termination. The final report shall contain information regarding sales of securities made in this state and must be filed whether any sales were made in this state.

(10) An extension of registration may be requested beyond one year by filing with the director a written request for an extension together with the fee under SDCL 47-31B-305(i).

S.D. Admin. R. 20:08:04:115

28 SDR 48, effective 10/10/2001; 30 SDR 211, effective 7/1/2004; 37 SDR 112, effective 12/9/2010.

General Authority: SDCL 47-31B-304(b), 47-31B-304(e), 47-31B-305(h), 47-31B-605(a)(1), 47-31B-605(a)(3).

Law Implemented: SDCL 47-31B-304, 47-31B-305(b), 47-31B-305(h), 47-31B-305(i).