O.C.G.A. § 10-5-21 — Filing of records

(a) With respect to a federal covered security, as deﬁned in Section 18(b)(2) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(2), that is not otherwise exempt under Code Sections 10-5-10 through 10-5-12, a rule adopted or order issued under this chapter may require the ﬁling of any or all of the following records: (1) Before the initial offer of a federal covered security in this state, all records that are part of a federal registration statement ﬁled with the Securities and Exchange Commission under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., and a consent to service of process complying with Code Section 10-5-80 signed by the issuer and the payment of a fee of $250.00; (2) After the initial offer of the federal covered security in this state, all records that are part of an amendment to a federal registration statement ﬁled with the Securities and Exchange Commission under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.; and (3) To the extent necessary or appropriate to compute fees, a report of the value of the federal covered securities sold or offered to persons present in this state, if the sales data are not included in records ﬁled with the Securities and Exchange Commission and payment of a fee of $250.00. (b) A notice ﬁling under subsection (a) of this Code section is effective for one year commencing on the later of the notice ﬁling or the effectiveness of the offering ﬁled with the Securities and Exchange 747 10-5-22 Commission. On or before expiration, the issuer may renew a notice ﬁling by ﬁling a copy of those records ﬁled by the issuer with the Securities and Exchange Commission that are required by rule adopted or order issued under this chapter to be ﬁled and by paying a renewal fee of $100.00. A previously ﬁled consent to service of process complying with Code Section 10-5-80 may be incorporated by reference in a renewal. A renewed notice ﬁling becomes effective upon the expiration of the ﬁling being renewed. (c) With respect to a security that is a federal covered security under Section 18(b)(4)(D) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(4)(D), a rule adopted under this chapter may require a notice ﬁling by or on behalf of an issuer to include a copy of Form D, including the Appendix, as promulgated by the Securities and Exchange Commission, and a consent to service of process complying with Code Section 10-5-80 signed by the issuer not later than 15 days after the ﬁrst sale of the federal covered security in this state and the payment of a fee of $250.00. (d) Except with respect to a federal security under Section 181(b)(1) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(1), if the Commissioner ﬁnds that there is a failure to comply with a notice or fee requirement of this Code section, the Commissioner may issue a stop order suspending the offer and sale of a federal covered security in this state. If the deﬁciency is corrected, the stop order is void as of the time of its issuance and no penalty may be imposed by the Commissioner. History. Code 1981, § 10-5-21, enacted by Ga. L. 2008, p. 381, § 1/SB 358. 10-5-22. Registration by coordination; additional records; effective date of federal registration statement. (a) A security for which a registration statement has been ﬁled under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., in connection with the same offering may be registered by coordination under this Code section. (b) A registration statement and accompanying records under this Code section must contain or be accompanied by the following records in addition to the information speciﬁed in Code Section 10-5-24 and a consent to service of process complying with Code Section 10-5-80: (1) A copy of the latest form of prospectus ﬁled under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.; (2) A copy of the articles of incorporation and bylaws or their substantial equivalents currently in effect; a copy of any agreement 748 10-5-22 with or among underwriters; a copy of any indenture or other instrument governing the issuance of the security to be registered; and a specimen, copy, or description of the security that is required by rule adopted or order issued under this chapter; (3) Copies of any other information or any other records ﬁled by the issuer under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., requested by the Commissioner; and (4) An undertaking to forward each amendment to the federal prospectus, other than an amendment that delays the effective date of the registration statement, promptly after it is ﬁled with the Securities and Exchange Commission. (c) A registration statement under this Code section becomes effective simultaneously with or subsequent to the federal registration statement when all the following conditions are satisﬁed: (1) A stop order issued under subsection (d) of this Code section or Code Section 10-5-25 or issued by the Securities and Exchange Commission is not in effect and a proceeding is not pending against the issuer under Code Section 10-5-41; and (2) The registration statement has been on ﬁle for at least 20 days or a shorter period provided by rule adopted or order issued under this chapter. (d) The registrant shall promptly notify the Commissioner in a record of the date when the federal registration statement becomes effective and the content of any price amendment and shall promptly ﬁle a record containing the price amendment. If the notice is not timely received, the Commissioner may issue a stop order, without prior notice or hearing, retroactively denying effectiveness to the registration statement or suspending its effectiveness until compliance with this Code section. The Commissioner shall promptly notify the registrant of an order by telephone or electronic means and promptly conﬁrm this notice by a record. If the registrant subsequently complies with the notice requirements of this Code section, the stop order is void as of the date of its issuance. (e) If the federal registration statement becomes effective before each of the conditions in this Code section is satisﬁed or is waived by the Commissioner, the registration statement is automatically effective under this chapter when all the conditions are satisﬁed or waived. If the registrant notiﬁes the Commissioner of the date when the federal registration statement is expected to become effective, the Commissioner shall promptly notify the registrant by telephone or electronic means and promptly conﬁrm this notice by a record, indicating whether all the conditions are satisﬁed or waived and whether the Commis749 10-5-23 sioner intends the institution of a proceeding under Code Section 10-5-25. The notice by the Commissioner does not preclude the institution of such a proceeding. History. Code 1981, § 10-5-22, enacted by Ga. L. 2008, p. 381, § 1/SB 358. 10-5-23. Registration by qualiﬁcation; additional information and records required; effective date. (a) A security may be registered by qualiﬁcation under this Code section. (b) A registration statement under this Code section must contain the information or records speciﬁed in Code Section 10-5-24, a consent to service of process complying with Code Section 10-5-80, and, if required by rule adopted under this chapter, the following information or records: (1) With respect to the issuer and any signiﬁcant subsidiary, its name, address, and form of organization; the state or foreign jurisdiction and date of its organization; the general character and location of its business; a description of its physical properties and equipment; and a statement of the general competitive conditions in the industry or business in which it is or will be engaged; (2) With respect to each director and officer of the issuer and other person having a similar status or performing similar functions, the person’s name, address, and principal occupation for the previous ﬁve years; the amount of securities of the issuer held by the person as of the thirtieth day before the ﬁling of the registration statement; the amount of the securities covered by the registration statement to which the person has indicated an intention to subscribe; and a description of any material interest of the person in any material transaction with the issuer or a signiﬁcant subsidiary effected within the previous three years or proposed to be effected; (3) With respect to persons covered by paragraph (2) of this subsection, the aggregate sum of the remuneration paid to those persons during the previous 12 months and estimated to be paid during the next 12 months, directly or indirectly, by the issuer and all predecessors, parents, subsidiaries, and affiliates of the issuer; (4) With respect to a person owning of record or owning beneﬁcially, if known, 10 percent or more of the outstanding shares of any class of equity security of the issuer, the information speciﬁed in paragraph (2) of this subsection other than the person’s occupation; (5) With respect to a promoter, if the issuer was organized within 750 10-5-23 the previous three years, the information or records speciﬁed in paragraph (2) of this subsection, any amount paid to the promoter within that period or intended to be paid to the promoter and the consideration for the payment; (6) With respect to a person on whose behalf any part of the offering is to be made in a nonissuer distribution, the person’s name and address; the amount of securities of the issuer held by the person as of the date of the ﬁling of the registration statement; a description of any material interest of the person in any material transaction with the issuer or any signiﬁcant subsidiary effected within the previous three years or proposed to be effected; and a statement of the reasons for making the offering; (7) The capitalization and long term debt, on both a current and pro forma basis, of the issuer and any signiﬁcant subsidiary, including a description of each security outstanding or being registered or otherwise offered, and a statement of the amount and kind of consideration, whether in the form of cash, physical assets, services, patents, good will, or anything else of value, for which the issuer or any subsidiary has issued its securities within the previous two years or is obligated to issue its securities; (8) The kind and amount of securities to be offered; the proposed offering price or the method by which it is to be computed; any variation at which a proportion of the offering is to be made to a person or class of persons other than the underwriters, with a speciﬁcation of the person or class; the basis on which the offering is to be made if otherwise than for cash; the estimated aggregate underwriting and selling discounts or commissions and ﬁnders’ fees, including separately cash, securities, contracts, or anything else of value to accrue to the underwriters or ﬁnders in connection with the offering or, if the selling discounts or commissions are variable, the basis of determining them and their maximum and minimum amounts; the estimated amounts of other selling expenses, including legal, engineering, and accounting charges; the name and address of each underwriter and each recipient of a ﬁnder’s fee; a copy of any underwriting or selling group agreement under which the distribution is to be made or the proposed form of any such agreement whose terms have not yet been determined; and a description of the plan of distribution of any securities that are to be offered otherwise than through an underwriter; (9) The estimated monetary proceeds to be received by the issuer from the offering; the purposes for which the proceeds are to be used by the issuer; the estimated amount to be used for each purpose; the order or priority in which the proceeds will be used for the purposes stated; the amounts of any funds to be raised from other sources to 751 10-5-23 achieve the purposes stated; the sources of the funds; and, if a part of the proceeds is to be used to acquire property, including good will, otherwise than in the ordinary course of business, the names and addresses of the vendors, the purchase price, the names of any persons that have received commissions in connection with the acquisition, and the amounts of the commissions and other expenses in connection with the acquisition, including the cost of borrowing money to ﬁnance the acquisition; (10) A description of any stock options or other security options outstanding or to be created in connection with the offering and the amount of those options held or to be held by each person required to be named in paragraph (2), (4), (5), (6), or (8) of this subsection and by any person that holds or will hold 10 percent or more in the aggregate of those options; (11) The dates of, parties to, and general effect concisely stated of each managerial or other material contract made or to be made otherwise than in the ordinary course of business to be performed in whole or in part at or after the ﬁling of the registration statement or that was made within the previous two years and a copy of the contract; (12) A description of any pending litigation, action, or proceeding to which the issuer is a party and that materially affects its business or assets and any litigation, action, or proceeding known to be contemplated by governmental authorities; (13) A copy of any prospectus, pamphlet, circular, form letter, advertisement, or other sales literature intended as of the effective date to be used in connection with the offering and any solicitation of interest used in compliance with subparagraph (B) of paragraph (17) of Code Section 10-5-11; (14) A specimen or copy of the security being registered, unless the security is uncertiﬁcated; a copy of the issuer’s articles of incorporation and bylaws or their substantial equivalents, in effect; and a copy of any indenture or other instrument covering the security to be registered; (15) A signed or conformed copy of an opinion of counsel concerning the legality of the security being registered, with an English translation if it is in a language other than English, which states whether the security when sold will be validly issued, fully paid, and nonassessable and, if a debt security, a binding obligation of the issuer; (16) A signed or conformed copy of a consent of any accountant, engineer, appraiser, or other person whose profession gives authority 752 10-5-23 for a statement made by the person if the person is named as having prepared or certiﬁed a public report or valuation, other than an official record, which is used in connection with the registration statement; (17) A balance sheet of the issuer as of a date within four months before the ﬁling of the registration statement; a statement of income and changes in ﬁnancial position for each of the three ﬁscal years preceding the date of the balance sheet and for any period between the close of the immediately previous ﬁscal year and the date of the balance sheet or for the period of the issuer’s and any predecessor’s existence if less than three years; and, if any part of the proceeds of the offering is to be applied to the purchase of a business, the ﬁnancial statements that would be required if that business were the registrant; and (18) Any additional information or records required by rule adopted or order issued under this chapter. (c) A registration statement under this Code section becomes effective 30 days after the date the registration statement or the last amendment other than a price amendment is ﬁled, unless any shorter period is provided by a rule adopted or order issued under this chapter, if: (1) A stop order is not in effect and a proceeding is not pending under Code Section 10-5-25; (2) The Commissioner has not issued an order under Code Section 10-5-25 delaying effectiveness; and (3) The applicant or registrant has not requested that effectiveness be delayed. (d) The Commissioner may delay effectiveness once for not more than 90 days if the Commissioner determines the registration statement is not complete in all material respects and promptly notiﬁes the applicant or registrant of that determination. The Commissioner may also delay effectiveness for a further period of not more than 30 days if the Commissioner determines that the delay is necessary or appropriate. (e) A rule adopted or order issued under this chapter may require as a condition of registration under this Code section that a prospectus containing a speciﬁed part of the information or record speciﬁed in subsection (b) of this Code section be sent or given to each person to which an offer is made before or concurrently with the earliest of: (1) The ﬁrst offer made in a record to the person, otherwise than by means of a public advertisement, by or for the account of the issuer 753 10-5-24 or another person on whose behalf the offering is being made or by an underwriter or broker-dealer that is offering part of an unsold allotment or subscription taken by the person as a participant in the distribution; (2) The conﬁrmation of a sale made by or for the account of the person; (3) Payment pursuant to such a sale; or (4) Delivery of the security pursuant to such a sale. History. Code 1981, § 10-5-23, enacted by Ga. L. 2008, p. 381, § 1/SB 358. 10-5-24. Filing of registration statement; conditions of registration; amendment.