23-42-404. Registration statements generally.

23-42-404. Registration statements generally. (a) A registration statement may be filed by the issuer, any other person on whose behalf the offering is to be made, or a registered broker-dealer. (b)(1) Every person filing a registration statement shall pay a filing fee of one-tenth percent (0.1%) of the maximum aggregate offering price at which the registered securities are to be offered in this state, but the fee shall in no case be less than one hundred fifty dollars ($150) nor more than two thousand dollars ($2,000). Any portion of the fee in excess of one thousand dollars ($1,000) shall be designated as special revenues and shall be deposited into the Securities Department Fund. When a registration statement is withdrawn before the effective date or a preeffective stop order is entered under § 23-42-405, the Securities Commissioner shall retain one hundred fifty dollars ($150) of the filing fee. (2) Sales of securities in excess of the amount of securities to have been offered in this state shall require the person filing the registration statement to pay a filing fee, calculated in the manner specified in subdivision (b)(1) of this section, for all securities sold. In addition, if the sales are in excess of one hundred five percent (105%) of the amount to have been offered, the person filing the registration statement shall pay a penalty fee of two hundred dollars ($200). (c) Every registration statement shall specify: (1) The amount of securities to be offered in this state; (2) The states in which a registration statement or similar document in connection with the offering has been or is to be filed; and (3) Any adverse order, judgment, or decree entered in connection with the offering by the regulatory authorities in each state or by any court or the Securities and Exchange Commission. (d) Any document filed under this chapter or a predecessor act, within five (5) years preceding the filing of a registration statement, may be incorporated by reference in the registration statement to the extent that the document is currently accurate. (e) The commissioner may by rule or otherwise permit the omission of any item of information or document from any registration statement. (f) In the case of a nonissuer distribution, information may not be required under § 23-42-403 or subsection (m) of this section unless it is known to the person filing the registration statement or to the persons on whose behalf the distribution is to be made, or can be furnished by them without unreasonable effort or expense. (g)(1) The commissioner may, by rule or order, require as a condition of registration by qualification or coordination that: (A) Any security issued within the past three (3) years or to be issued to a promoter for a consideration substantially different from the public offering price, or to any person for a consideration other than cash, be deposited in escrow; (B) The proceeds from the sale of the registered security be impounded until the issuer receives a specified amount. (2) The commissioner may by rule or order determine the conditions of any escrow or impounding required hereunder, but he or she may not reject a depository solely because of location in another state. (h) The commissioner may require the issuer, as a condition of registration by qualification, to escrow up to ten percent (10%) of the maximum aggregate price of the offering, from the offering proceeds under such terms and conditions as he or she deems appropriate for up to three (3) years from the date of termination of the offering, or to post a corporate surety bond for up to ten percent (10%) of the maximum aggregate price of the offering for up to (3) years from the date of termination of the offering. Any security holder having a right under this chapter against the issuer shall have a right of action against the escrow or corporate surety bond. (i) The commissioner may by rule or order require as a condition of registration that any security registered by qualification or coordination be sold only on an approved form of subscription or sale contract and that a signed or conformed copy of each subscription or sale contract be filed with the commissioner or preserved for any period up to three (3) years specified in the rule or order. (j) Every registration statement is effective for one (1) year from its effective date and, upon renewal, for any longer period during which the security is being offered or distributed in a nonexempted transaction, except during the time a stop order is in effect. (k) Renewal registration for the succeeding twelve-month period may be issued upon written application and upon payment of fees as provided by this section for original registration, even though the maximum fee was paid the preceding period, without filing of further statements or furnishing any further information except as requested by the commissioner. All applications for renewal received after the expiration of the previous registration shall be treated as original applications. (l)(1) All outstanding securities of the same class as a registered security are considered to be registered for the purpose of any nonissuer transactions: (A) So long as the registration statement is effective, whether by original or renewal registration; and (B) Between the thirtieth day after the entry of any stop order suspending or revoking the effectiveness of the registration statement under § 23-42-405, if the registration statement did not relate in whole or in part to a nonissuer distribution, and one (1) year from the effective date of the registration statement. (2) A registration statement may not be withdrawn for one (1) year from its effective date if any securities of the same class are outstanding. A registration statement may be withdrawn otherwise only in the discretion of the commissioner. (m) So long as a registration statement is effective, the commissioner may by rule or order require the person who filed the registration to keep reasonably current the information contained in the registration statement and to disclose the progress of the offering. (n) A registration statement relating to a security may be amended after its effective date so as to increase the securities specified as proposed to be offered. The amendment becomes effective when the commissioner so orders. Every person filing such an amendment shall pay a filing fee, calculated in the manner specified in subsection (b) of this section, with respect to the additional securities proposed to be offered. (o) The State Securities Department is hereby authorized to promulgate such rules necessary to administer the fees, rates, tolls, or charges for services established by this section and § 23-42-304 and is directed to prescribe and collect the fees, rates, tolls, or charges for the services by the department in the manner that may be necessary to support the programs of the department as directed by the Governor and the General Assembly. (p) The commissioner may consider a registration statement abandoned and withdrawn by the applicant if the: (1) Registration statement has not been completed within one hundred eighty (180) days after filing with the commissioner; and (2) Applicant has been notified of the deficiencies in the application and provided a reasonable opportunity to correct the deficiencies.