[27 Pa.B. 2639]
[Continued from previous Web Page]
CHAPTER 209. BOOKS, RECORDS, AND ACCOUNTS § 209.010. Required records; report on sales of securities [and use of proceeds].
* * * * * (b) Except as set forth in paragraph [(4)] (3), filing requirements are as follows:
(1) [Each issuer offering or selling securities for its own account, directly or through an underwriter, under an exemption contained in section 203(d) or (p) of the act shall file a report with the Commission by completing Parts I and III of the form in subsection (c) within one of the following time periods:
(i) Within 60 days after the end of each 12-month period following the most recent filing of Form 203-D or 203-P during which the securities continued to be offered, except that, when the offering terminates and disposition of all proceeds of the offering occurs prior to the end of a 12-month period, a report shall be filed within 60 days from the date of the disposition and no further report need be filed thereafter.
(ii) Within 60 days after the date the offering terminates when the termination occurred less than 12 months after the date of the most recent filing of Form 203-D or 203-P and no sales were made in this Commonwealth. The reports required by this subparagraph shall contain information relating to sales made from the commencement of the offering through the end of the period covered by the report and the uses made of the proceeds received.
(2) An issuer which is an open-end or closed-end investment company, face amount certificate company or unit investment trust, as those persons are classified in the Investment Company Act of 1940 (15 U.S.C.A. §§ 80a-1--80a-64), filing under section 203(i), 205 or 206 of the act shall file an annual report with the Commission by submitting Uniform Sales Report Form, known as Form USR-1 (or a successor form thereto) within 55 days after 1 year from the effective date of the registration statement filed under section 205 or 206 of the act or of the date of filing for an exemption or exemption renewal under section 203(i) of the act.
(3)] Issuers which have an effective registration for the offer and sale of securities in this Commonwealth under section 206 of the act, except for open-end or closed-end investment companies, face amount certificate companies or unit investment trusts, as those persons are classified in the Investment Company Act of 1940, shall file a report with the Commission by completing Parts I and II of the form in subsection (c) within 55 days after 1 year from the effective date of the registration statement filed under section 206 of the act.
[(4) The following issuers are not required to file the form in subsection (c):
(i) Issuers involved in an offering of securities where the total aggregate offering does not exceed $100,000.
(ii) Issuers which are open-end or closed-end investment companies, face amount certificate companies or unit investment trusts, as those persons are classified in the Investment Company Act of 1940, filing under section 203(i) of the act to exempt an indefinite amount of securities and have paid the maximum fee specified in section 602(b)(iv) of the act (70 P. S. § 1-602(b)(iv)).
(iii) Issuers with an effective registration statement for the offer and sale of securities in this Commonwealth under section 206 of the act which also have an effective registration statement under section 5 of the Securities Act of 1933 (15 U.S.C.A. § 77e) and have paid the maximum fee specified in section 602(b)(iii) of the act.
(iv) Issuers with an effective registration statement for the offer and sale of securities in this Commonwealth under section 206 of the act where the issuer has timely filed Commission Form 207-K in accordance with § 207.110 (relating to quarterly reports of the progress of a registered offering) for the period in which the issuers' offering terminated.]
(2) An issuer which is an open-end or closed-end investment company, face amount certificate company or unit investment trust, as those persons are classified in the Investment Company Act of 1940 (15 U.S.C.A. §§ 80a-1--80a-64), shall file with the Commission an annual report on sales of securities in this Commonwealth on Form NF adopted by the North American Securities Administrators Association, Inc. (or a successor form thereto) within the following time periods:
(i) With respect to an open-end or closed-end investment company or face amount certificate company, the report required by this subsection shall be filed with the Commission within 120 days after its fiscal year end.
(ii) With respect to a unit investment trust, the report required by this subsection shall be filed with the Commission within 60 days after 1 year from the date the registration statement relating to the securities sold in this Commonwealth became effective with the United States Securities and Exchange Commission.
(3) The following issuers are not required to file the form in subsection (c) or Form NF (or successor form thereto):
(i) Issuers which are open-end or closed-end investment companies, face amount certificate companies or unit investment trusts, as those persons are classified in the Investment Company Act of 1940, that have paid the maximum fee specified in section 602(b.1)(iv) of the act (70 P. S. § 1-602 (b.1)(iv)).
(ii) Issuers with an effective registration statement for the offer and sale of securities in this Commonwealth under section 206 of the act (70 P. S. § 1-206) of the act which also have an effective registration statement under section 5 of the Securities Act of 1933 (15 U.S.C.A. § 77e) and have paid the maximum fee specified in section 602(b.1)(iii) of the act (70 P. S. § 1-602(b.1)(iii)).
(iii) Issuers with an effective registration statement for the offer and sale of securities in this Commonwealth under section 206 of the act which also have paid the maximum fee specified in section 602(b.1)(iii) of the act.
(c) The form for reports required in subsection (b), except for subsection (b)(2), shall be filed with the Commission on the following form, designated by the Commission as Form 209:
FORM 209
PENNSYLVANIA SECURITIES COMMISSION
REPORT ON SALES OF SECURITIES [AND DISPOSITION OF PROCEEDS]
General InstructionsWHO MUST FILE: Issuers which have sold securities in Pennsylvania [either
I.] Pursuant to registration by qualification under Section 206, EXCEPT where the offering is registered under Section 5 of the Securities Act of 1933 AND the maximum fee has been paid (see Section 602(b)(iii)),
[II. In reliance upon exemption from registration under Sections 203(d) or (p), EXCEPT for an offering where the TOTAL AGGREGATE dollar amount for the ENTIRE offering is $100,000 or less.]WHEN TO FILE:
[I. Registrations under Section 206:] File Form 209 within 420 days after the effective date of the registration statement in Pennsylvania.
[II. Exemptions under Sections 203(d) or (p):NOTE: ''Exemption Filing'' refers to the receipt by the Commission of Form 203-D or SEC Form D submitted with Commission Form D Supplement; or Commission Form 203-P.
A. NO SALES IN PA and the issuer has TERMINATED the Offering in PA within 12 months of the Exemption Filing:
1. File Form 209 within 60 days of termination of the offering.
2. Complete ONLY PART I and sign the Form. No further report need be filed thereafter.B. SALES IN PA and, within 12 months from the date of the Exemption Filing, the issuer has TERMINATED the offering in PA and utilized All of the Proceeds:
1. File Form 209 within 60 days of disposition of all offering proceeds.
2. No further report need be filed thereafter.C. SALES IN PA BUT, within 12 months from the date of the Exemption Filing, the issuer HAS NOT TERMINATED the offering in PA OR utilized all of the Proceeds:
1. File Form 209 within 60 days of disposition of all offering proceeds.
2. File a final Form 209 within 60 days of termination of the offering in PA and disposition of all proceeds. No further report need be filed thereafter.]* * * * * 7. [For Part III, the time period covered by this report should commence with the DATE Commission Form 203-D, SEC Form D and Commission Form D Supplement, or Form 203-P WAS FILED with the Commission with respect to securities sold under Section 203(d) or (p) of the Act.
8. In Item 13(B), compute all amounts from the DATE Commission Form 203-D, SEC Form D and Commission Form D Supplement or Commission Form 203-P WAS FILED with the Commission cumulatively to the final date of the reporting period for this Report. Round all amounts to the nearest dollar.
9. For items 10 and 11, state the cumulative amount of securities offered and sold in Pennsylvania from the date the securities INITIALLY were offered for sale in the Commonwealth.
10. NOTE: Regulation 606.011 requires issuers which have sold securities to Pennsylvania residents under Sections 203(d), 203(o)(ii), 203(r) (including Regulations 203.183 through 203.188), 205 and 206 of the 1972 Act to provide annual financial statements to all Pennsylvania investors within 120 days after the end of the issuer's fiscal year for as long as such securities are held of record by a Pennsylvania resident.
11.] Please remove instruction sheet before filing this Form.
FILE NO.: ______
FORM 209
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA SECURITIES COMMISSIONPART I Issuer Information
* * * * * [4. A. Is the offering continuing in Pennsylvania? [ ] YES [ ] NO
If NO, complete (B) below.NOTE: If an offering is continuing an update of the disclosure document may be required. If the issuer utilizes any updated or additional disclosure documents, the issuer must amend its filing with the Commission's Division of Corporation Finance in Harrisburg.
B. If the offering has terminated in Pennsylvania, did the issuer sell and securities in Pennsylvania? [ ] YES [ ] NO]
PART II Report of Sales of Securities Registered under Section 206.
[5.] 4. ***
[6.] 5. ***
* * * * * [PART III Report on Sales of Securities and Use of Proceeds under Sections 203(d) or 203(p).
7. Check the appropriate box(es) with respect to section(s) of the Act under which the securities covered in this report were sold:
[ ] Section 203(d) [ ] Section 203(p)8. Describe the type of security sold and the offering price per share or unit.
9. Total offering. (if offering was made ONLY in PA, omit and go directly to #10)
(A) Total number of shares or units offered for sale: _________________ .
(B) Total aggregate offering price of shares or units offered for sale: $ _________________ .10. Securities offered in Pennsylvania since inception of offering.
(A) Total number of shares or units offered for sale in Pennsylvania: _________________.
(B) Total aggregate offering price of shares or units offered for sale in Pennsylvania? $ ______ .
(C) Date Commission Form 203-D, SEC Form D and Commission Form D Supplement or Form 203-P was filed with the Commission ______19 ____ .11. Securities sold in Pennsylvania since inception of offering.
(A) Total number of shares or units sold in Pennsylvania: _________________.
(B) Total aggregate price of shares or units sold in Pennsylvania: $ _________________.
(C) Date first sale of securities occurred in Pennsylvania: _________________.
(D) Total number of persons of whom securities were sold in PA: _________________.12. If the response to Item 4(A) was YES, provide the following information. (If the response was NO, omit and proceed to item (13):
(A) Date the issuer's fiscal year ends: _________________ .
(B) Date the issuer sent its most recent annual financial statement to persons who were sold the issuer's securities in the offering that is the subject of this Report: _________________ . See General Instruction 10.13. Use of Proceeds.
The use of proceeds requested in item 13(B) may, at the option of the issuer, be reported on a combined basis with funds from other sources. If this option is selected, go directly to Item 13(A) and check all appropriate boxes. If this option is NOT being selected to report use of proceeds from PA sale, check one of the following lines indicating the section of the Report that relates and then proceeds directly to Item 13(B): ____ Section 203(d) or ____ Section 203(p).
(A) The following financial information may be presented on a consolidated basis including the proceeds received from all boxes checked.
[ ] Section 203(d)
[ ] Section 203(p)
[ ] Other PA Sales: Section of the Act relied upon _________________
Total amount received $ _________________.
[ ] Non-PA Sales and other sources of funds (e.g. bank financing).
Total amount received $ _________________.(B) State, or furnish a reasonable estimate of, the amount of offering proceeds to the issuer used for each of the purposes listed below. Do not include any amount in ''working capital'' to which a more specific category is applicable. Place an asterisk to the right of any amount that is an estimate.
Direct or indirect payments to directors, officers, general partners of the issuer or their associates, to persons owning ten percent or more of any class of equity securi- Direct or Indirect ties of the issuer; and to affiliates of the issuer Payment to others Underwriting discounts and commissions $ $ Finder's Fee $ $ Expenses paid to or for underwriters $ $ Other offering Expenses $ $ SUBTOTAL $ $ Construction of plant, building and facilities $ $ Purchase and installation of machinery and equipment $ $ Purchase of real estate $ $ Acquisition of other business(es) $ $ Repayment of indebtedness $ $ Working capital (incl. Salaries Expenses & Reimbursements) $ $ Temporary investment (specify) $ $ $ $ Other purposes (specify) $ $ $ $ NOTE: Specify under ''other purposes'' any purpose for which at least 5 percent of the issuer's total offering proceeds or $50,000, whichever is less, has been used, provided such amount has not been previously included or accounted for in any other item on this table.
14. Does the use of proceeds in item 13 represent a material change in the use of proceeds described in the offering material? [ ] YES [ ] NO If yes, explain.]
Each of the persons executing [Part I and ______ of] this report on behalf of the Issuer hereby affirms that the statements made herein, including all attachments hereto, are not incomplete in any material respect or false or misleading with respect to any material fact. Each of such persons further affirms that he is familiar with the penalties contained in the Pennsylvania Securities Act of 1972, and all regulations adopted thereunder for making any false or incomplete statement in connection with the sale of a security or in any filing with the Commission.
IN WITNESS WHEREOF, this report has been executed [this ______ day of ______ , 19 ____ .]
* * * * *
Subpart C. REGISTRATION OF BROKER-DEALERS, AGENTS AND INVESTMENT ADVISERS
CHAPTER 302. EXEMPTIONS § 302.065. Canadian broker-dealer exempt.
Under section 302(f) of the act (70 P. S. § 1-302(f)), the Commission deems it appropriate in the public interest to exempt Canadian broker-dealers and agents representing Canadian broker-dealers from the broker-dealer and agent registration provisions of section 301 of the act (70 P. S. § 1-301) when effecting transactions in securities in this Commonwealth with persons described in paragraph (1), if the broker-dealer meets the conditions of paragraph (2).
(1) The customer is one of the following:
(i) A person from Canada who temporarily is present in this Commonwealth with whom the Canadian broker-dealer had a bona fide business-customer relationship before the person entered this Commonwealth.
(ii) A person from Canada who is present in this Commonwealth whose only transactions with a Canadian broker-dealer in this Commonwealth relate to a self-directed, tax advantaged retirement plan in Canada as to which the person is the holder or contributor.
(2) The Canadian broker-dealer meets the following conditions:
(i) Is a member in good standing of a self-regulatory organization or stock exchange in Canada at the time it is effecting transactions into this Commonwealth in reliance on this section.
(ii) Is registered as a broker or dealer in good standing in the Province or Territory of Canada from which it is effecting transactions into this Commonwealth in reliance on this section.
(iii) Discloses to its customers in this Commonwealth at the time of a transaction made in reliance on this section that it is not registered under the act.
Subpart F. ADMINISTRATION
CHAPTER 606. MISCELLANEOUS POWERS OF COMMISSION § 606.011. Financial reports to security holders.
(a) In the case of securities issued under [the exemptions in sections] section 203(d) [,(o)(ii), (q) and (r)] of the act (70 P. S. §[§] 1-203(d) [, (o)(ii), (q) and (r)]), or registered under [sections] section 205 [and] or 206 of the act (70 P. S. §§ 1-205 [or] and 1-206), the issuer shall, so long as the securities are held of record by a Commonwealth resident, deliver its financial statements to each holder at least annually and within 120 days after the close of the fiscal year of the issuer [if the issuer is not, on the date of the close of that fiscal year, a reporting company as defined in section 102(q) of the act (70 P. S. § 1-102(q))].
(b) The financial statements shall comply with [the requirements of] section 609(c) of the act (70 P. S. § 1-609(c)) and the rules and regulations adopted thereunder[. If] , except that, if the securities were issued in a transaction subject to this section wherein none of the financial statements delivered to offerees were required to be audited or if no financial statements were required to be given to the offerees, the financial statements need not be audited.
(c) This section does not apply if, on the date of the close of the issuer's fiscal year, the issuer is subject to section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.A. §§ 78, 78m and 78o(d)) and, within 120 days of that date, has made a filing with the United States Securities and Exchange Commission in accordance with either of those sections.
CHAPTER 609. REGULATIONS, FORMS AND ORDERS § 609.011. [Amendment form] Amendments to filings with Commission.
Whenever an application, notice, statement, report or any other document (Document) has been filed with the Commission and the person [filing such application, notice, statement, report or other document] who filed the Document wishes to amend [such document] or otherwise ensure that [such document] the Document is current and accurate [, an amendment shall be made on the following form, designated by the Commission as Form AM:] in all material respects, the person shall make a filing with the Commission constituting the amendment which also shall identify the Document being amended including, with respect to an amendment to a form promulgated by the Commission, the name of the form, the date the form originally was filed with the Commission and the items or schedules of the form which are being amended.
(Editor's Note: As part of this proposal, the Commission is proposing to delete Form AM which appears at 64 Pa. Code pages 609-6--609-8, serial pages (148434)--(148436).)
[Pa.B. Doc. No. 97-877. Filed for public inspection May 30, 1997, 9:00 a.m.]
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