IC 23-19-3
Chapter 3. Registration of Securities and Notice Filing of Federal
Covered Securities
IC 23-19-3-1 Unlawful acts
Sec. 1. It is unlawful for a person to offer or sell a security in this
state unless:
(1) the security is a federal covered security;
(2) the security, transaction, or offer is exempted from
registration under IC 23-19-2-1 through IC 23-19-2-3; or
(3) the security is registered under this article. As added by P.L.27-2007, SEC.23.
IC 23-19-3-2 Filing and fee requirements
Sec. 2. (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.
77r(b)(2)), that is not otherwise exempt under IC 23-19-2-1 through
IC 23-19-2-3, a rule adopted or order issued under this article 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 and a consent to service of process
complying with IC 23-19-6-11 signed by the issuer and the
payment of a fee of:
(A) five hundred dollars ($500) for an issuer with net assets
not exceeding ten million dollars ($10,000,000); or
(B) one thousand dollars ($1,000) for other issuers.
(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.
(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 five-hundredths of one
percent (0.05%) of the excess of the dollar amount of securities
sold during the fiscal year over the dollar amount of securities
redeemed, not to exceed two thousand dollars ($2,000) in any
one (1) year. The fee required in subdivision (1) shall be
applied as a credit against the fee required under this
subdivision.
(b) A notice filing under subsection (a) is effective for one (1)
year commencing on the later of the notice filing or the effectiveness
of the offering filed with the Securities and Exchange 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 or order under this
article to be filed and by paying a renewal fee of two hundred fifty
dollars ($250). A previously filed consent to service of process
complying with IC 23-19-6-11 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.
77r(b)(4)(D)), a rule under this article 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
IC 23-19-6-11 signed by the issuer not later than fifteen (15) days
after the first sale of the federal covered security in this state.
(d) Except with respect to a federal security under Section
18(b)(1) of the Securities Act of 1933 (15 U.S.C. 77r(b)(1)), if the
commissioner finds that there is a failure to comply with a notice or
fee requirement of this 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. As added by P.L.27-2007, SEC.23.
IC 23-19-3-3 Registration under Securities Act of 1933; registration by
coordination; registration statement; required information; notice
Sec. 3. (a) A security for which a registration statement has been
filed under the Securities Act of 1933 in connection with the same
offering may be registered by coordination under this section.
(b) A registration statement and accompanying records under this
section must contain or be accompanied by the following records in
addition to the information specified in section 5 of this chapter and
a consent to service of process complying with IC 23-19-6-11:
(1) A copy of the latest form of prospectus filed under the
Securities Act of 1933.
(2) A copy of the articles of incorporation and bylaws or their
substantial equivalents currently in effect; a copy of any
agreement 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
article.
(3) Copies of any other information or any other records filed
by the issuer under the Securities Act of 1933 requested by the
commissioner.
(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 section becomes effective
simultaneously with or subsequent to the federal registration
statement when all the following conditions are satisfied:
(1) A stop order under subsection (d) or section 6 of this chapter
or issued by the Securities and Exchange Commission is not in
effect and a proceeding is not pending against the issuer under
section 6 of this chapter.
(2) The registration statement has been on file for at least
twenty (20) days or a shorter period provided by rule adopted
or order issued under this article.
(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 section. The commissioner shall promptly
notify the registrant of an order by telegram, telephone, or electronic
means and promptly confirm this notice by a record. If the registrant
subsequently complies with the notice requirements of this 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 section is satisfied or is waived by the
commissioner, the registration statement is automatically effective
under this article 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 telegram,
telephone, or electronic means and promptly confirm this notice by
a record, indicating whether all the conditions are satisfied or waived
and whether the commissioner intends the institution of a proceeding
under section 6 of this chapter. The notice by the commissioner does
not preclude the institution of such a proceeding. As added by P.L.27-2007, SEC.23.
IC 23-19-3-4 Registration by qualification; registration statement; required
information; prospectus
Sec. 4. (a) A security may be registered by qualification under this
section.
(b) A registration statement under this section must contain the
information or records specified in section 5 of this chapter, a
consent to service of process complying with IC 23-19-6-11, and, if
required by rule adopted under this article, 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 (5) 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 (3) years or proposed to be effected.
(3) With respect to persons covered by subdivision (2), the
aggregate sum of the remuneration paid to those persons during
the previous twelve (12) months and estimated to be paid during
the next twelve (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, ten percent (10%) or more of the
outstanding shares of any class of equity security of the issuer,
the information specified in subdivision (2) other than the
person's occupation.
(5) With respect to a promoter, if the issuer was organized
within the previous three (3) years, the information or records
specified in subdivision (2), 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 (3) 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, goodwill, or anything else of value, for
which the issuer or any subsidiary has issued its securities
within the previous two (2) 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 achieve the purposes stated; the
sources of the funds; and, if a part of the proceeds is to be used
to acquire property, including goodwill, 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 subdivision (2), (4), (5), (6), or
(8) and by any person that holds or will hold ten percent (10%)
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
(2) 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
IC 23-19-2-2(17)(B).
(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 for a statement made by the person,
if the person is named as having prepared or certified a report
or valuation, other than an official record that is public, which
is used in connection with the registration statement.
(17) A balance sheet of the issuer as of a date within four (4)
months before the filing of the registration statement; a
statement of income and a statement of cash flows for each of
the three (3) 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 (3) 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.
(18) Any additional information or records required by rule
adopted or order issued under this article.
(c) A registration statement under this section becomes effective
thirty (30) days, or any shorter period provided by rule adopted or
order issued under this article, after the date the registration
statement or the last amendment other than a price amendment is
filed, if:
(1) a stop order is not in effect and a proceeding is not pending
under section 6 of this chapter;
(2) the commissioner has not issued an order under section 6 of
this chapter 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 ninety (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 thirty (30) days if the commissioner determines that the
delay is necessary or appropriate.
(e) A rule adopted or order issued under this article may require
as a condition of registration under this section that a prospectus
containing a specified part of the information or record specified in
subsection (b) 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 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 under such a sale; or
(4) delivery of the security under such a sale. As added by P.L.27-2007, SEC.23.
IC 23-19-3-5 Filing registration statement; fee; incorporation by reference;
nonissuer distribution; escrow and impoundment; effective period;
reports; amendment
Sec. 5. (a) A registration statement may be filed by the issuer, a
person on whose behalf the offering is to be made, or a broker-dealer
registered under this article.
(b) A person filing a registration statement shall pay a filing fee
of five-hundredths of one percent (0.05%) of the maximum aggregate
offering price at which the registered securities are to be offered in
Indiana, but the fee may not be less than two hundred fifty dollars
($250) and may not be more than one thousand dollars ($1,000). If
a registration statement is withdrawn before the effective date or a
preeffective stop order is issued under section 6 of this chapter, the
commissioner shall retain two hundred fifty dollars ($250) of the fee.
(c) A registration statement filed under section 3 or 4 of this
chapter must specify:
(1) the amount of securities to be offered in this state;
(2) the states in which a registration statement or similar record
in connection with the offering has been or is to be filed; and
(3) any adverse order, judgment, or decree issued in connection
with the offering by a state securities regulator, the Securities
and Exchange Commission, or a court.
(d) A record filed under this article or the 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 record is currently accurate.
(e) In the case of a nonissuer distribution, information or a record
may not be required under subsection (i) or section 4 of this chapter,
unless it is known to the person filing the registration statement or to
the person on whose behalf the distribution is to be made or unless
it can be furnished by those persons without unreasonable effort or
expense.
(f) A rule adopted or order issued under this article may require
as a condition of registration that a security issued within the
previous five (5) years or to be issued to a promoter for a
consideration substantially less than the public offering price or to a
person for a consideration other than cash be deposited in escrow and
that the proceeds from the sale of the registered security in this state
be impounded until the issuer receives a specified amount from the
sale of the security either in this state or elsewhere. The conditions
of any escrow or impoundment required under this subsection may
be established by rule adopted or order issued under this article, but
the commissioner may not reject a depository institution solely
because of its location in another state.
(g) A rule adopted or order issued under this article may require
as a condition of registration that a security registered under this
article be sold only on a specified form of subscription or sale
contract and that a signed or conformed copy of each contract be
filed under this article or preserved for a period specified by the rule
or order, which may not be longer than five (5) years.
(h) Except while a stop order is in effect under section 6 of this
chapter, a registration statement is effective for one (1) year after its
effective date, or for any longer period designated in an order under
this article during which the security is being offered or distributed
in a nonexempted transaction by or for the account of the issuer or
other person on whose behalf the offering is being made or by an
underwriter or broker-dealer that is still offering part of an unsold
allotment or subscription taken as a participant in the distribution.
For the purposes of a nonissuer transaction, all outstanding securities
of the same class identified in the registration statement as a security
registered under this article are considered to be registered while the
registration statement is effective. If any securities of the same class
are outstanding, a registration statement may not be withdrawn until
one (1) year after its effective date. A registration statement may be
withdrawn only with the approval of the commissioner.
(i) While a registration statement is effective, a rule adopted or
order issued under this article may require the person that filed the
registration statement to file reports, not more often than quarterly,
to keep the information or other record in the registration statement
reasonably current and to disclose the progress of the offering.
(j) A registration statement may be amended after its effective
date. The posteffective amendment becomes effective when the
commissioner so orders. If a posteffective amendment is made to
increase the number of securities specified to be offered or sold, the
person filing the amendment shall pay the greater of one hundred
dollars ($100) or the difference between the amount originally paid
and the amount the registration fee would have been if all the
securities to be offered had been registered. A posteffective
amendment relates back to the date of the offering of the additional
securities being registered if, within one (1) year after the date of the
sale, the amendment is filed and the additional registration fee is
paid. As added by P.L.27-2007, SEC.23.
IC 23-19-3-6 Stop orders; denial, suspension, or revocation of registration;
standards; postponement; hearing; process; modification or
vacating order
Sec. 6. (a) The commissioner may issue a stop order denying
effectiveness to, or suspending or revoking the effectiveness of, a
registration statement if the commissioner finds that the order is in
the public interest and that:
(1) the registration statement as of its effective date or before
the effective date in the case of an order denying effectiveness,
an amendment under section 5(j) of this chapter as of its
effective date, or a report under section 5(i) of this chapter, is
incomplete in a material respect or contains a statement that, in
the light of the circumstances under which it was made, was
false or misleading with respect to a material fact;
(2) this article, a rule adopted or order issued under this article,
or a condition imposed under this article has been willfully
violated, in connection with the offering, by the person filing
the registration statement; by the issuer, a partner, officer, or
director of the issuer or a person having a similar status or
performing a similar function; a promoter of the issuer; by a
person directly or indirectly controlling or controlled by the
issuer, but only if the person filing the registration statement is
directly or indirectly controlled by or acting for the issuer; or by
an underwriter;
(3) the security registered or sought to be registered is the
subject of a permanent or temporary injunction of a court with
jurisdiction or an administrative stop order or similar order
issued under any federal, foreign, or state law other than this
article applicable to the offering, but the commissioner may not
institute a proceeding against an effective registration statement
under this subdivision more than one (1) year after the date of
the order or injunction on which it is based, and the
commissioner may not issue an order under this subdivision on
the basis of an order or injunction issued under the securities act
of another state unless the order or injunction was based on
conduct that would constitute, as of the date of the order, a
ground for a stop order under this section;
(4) the issuer's enterprise or method of business includes or
would include activities that are unlawful where performed;
(5) with respect to a security sought to be registered under
section 3 of this chapter, there has been a failure to comply with
the undertaking required by section 3(b)(4) of this chapter;
(6) the applicant or registrant has not paid the filing fee, but the
commissioner shall void the order if the deficiency is corrected;
or
(7) the offering:
(A) will work or tend to work a fraud upon purchasers or
would so operate; or
(B) has been or would be made with unreasonable amounts
of underwriters' and sellers' discounts, commissions, or other
compensation, or promoters' profits or participations, or
unreasonable amounts or kinds of options.
(b) To the extent practicable, the commissioner by rule adopted
or order issued under this article shall publish standards that provide
notice of conduct that violates subsection (a)(7).
(c) The commissioner may not institute a stop order proceeding
against an effective registration statement on the basis of conduct or
a transaction known to the commissioner when the registration
statement became effective unless the proceeding is instituted within
thirty (30) days after the registration statement became effective.
(d) The commissioner may summarily revoke, deny, postpone, or
suspend the effectiveness of a registration statement pending final
determination of an administrative proceeding. Upon the issuance of
the order, the commissioner shall promptly notify each person
specified in subsection (e) that the order has been issued, the reasons
for the revocation, denial, postponement, or suspension, and that
within fifteen (15) days after the receipt of a request in a record from
the person the matter will be scheduled for a hearing. If a hearing is
not requested and none is ordered by the commissioner within thirty
(30) days after the date of service of the order, the order becomes
final. If a hearing is requested or ordered, the commissioner, after
notice of and opportunity for hearing for each person subject to the
order, may modify or vacate the order or extend the order until final
determination.
(e) A stop order may not be issued under this section without:
(1) appropriate notice to the applicant or registrant, the issuer,
and the person on whose behalf the securities are to be or have
been offered;
(2) an opportunity for hearing; and
(3) findings of fact and conclusions of law in a record.
(f) The commissioner may modify or vacate a stop order issued
under this section if the commissioner finds that the conditions that
caused its issuance have changed or that it is necessary or
appropriate in the public interest or for the protection of investors. As added by P.L.27-2007, SEC.23.
IC 23-19-3-7 Waiver or modification of requirements
Sec. 7. The commissioner may waive or modify, in whole or in
part, any or all of the requirements of sections 2, 3, and 4(b) of this
chapter or the requirement of any information or record in a
registration statement or in a periodic report filed under section 5(i)
of this chapter. As added by P.L.27-2007, SEC.23.
IC 23-19-3
Chapter 3. Registration of Securities and Notice Filing of Federal
Covered Securities
IC 23-19-3-1 Unlawful acts
Sec. 1. It is unlawful for a person to offer or sell a security in this
state unless:
(1) the security is a federal covered security;
(2) the security, transaction, or offer is exempted from
registration under IC 23-19-2-1 through IC 23-19-2-3; or
(3) the security is registered under this article. As added by P.L.27-2007, SEC.23.
IC 23-19-3-2 Filing and fee requirements
Sec. 2. (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.
77r(b)(2)), that is not otherwise exempt under IC 23-19-2-1 through
IC 23-19-2-3, a rule adopted or order issued under this article 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 and a consent to service of process
complying with IC 23-19-6-11 signed by the issuer and the
payment of a fee of:
(A) five hundred dollars ($500) for an issuer with net assets
not exceeding ten million dollars ($10,000,000); or
(B) one thousand dollars ($1,000) for other issuers.
(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.
(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 five-hundredths of one
percent (0.05%) of the excess of the dollar amount of securities
sold during the fiscal year over the dollar amount of securities
redeemed, not to exceed two thousand dollars ($2,000) in any
one (1) year. The fee required in subdivision (1) shall be
applied as a credit against the fee required under this
subdivision.
(b) A notice filing under subsection (a) is effective for one (1)
year commencing on the later of the notice filing or the effectiveness
of the offering filed with the Securities and Exchange 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 or order under this
article to be filed and by paying a renewal fee of two hundred fifty
dollars ($250). A previously filed consent to service of process
complying with IC 23-19-6-11 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.
77r(b)(4)(D)), a rule under this article 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
IC 23-19-6-11 signed by the issuer not later than fifteen (15) days
after the first sale of the federal covered security in this state.
(d) Except with respect to a federal security under Section
18(b)(1) of the Securities Act of 1933 (15 U.S.C. 77r(b)(1)), if the
commissioner finds that there is a failure to comply with a notice or
fee requirement of this 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. As added by P.L.27-2007, SEC.23.
IC 23-19-3-3 Registration under Securities Act of 1933; registration by
coordination; registration statement; required information; notice
Sec. 3. (a) A security for which a registration statement has been
filed under the Securities Act of 1933 in connection with the same
offering may be registered by coordination under this section.
(b) A registration statement and accompanying records under this
section must contain or be accompanied by the following records in
addition to the information specified in section 5 of this chapter and
a consent to service of process complying with IC 23-19-6-11:
(1) A copy of the latest form of prospectus filed under the
Securities Act of 1933.
(2) A copy of the articles of incorporation and bylaws or their
substantial equivalents currently in effect; a copy of any
agreement 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
article.
(3) Copies of any other information or any other records filed
by the issuer under the Securities Act of 1933 requested by the
commissioner.
(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 section becomes effective
simultaneously with or subsequent to the federal registration
statement when all the following conditions are satisfied:
(1) A stop order under subsection (d) or section 6 of this chapter
or issued by the Securities and Exchange Commission is not in
effect and a proceeding is not pending against the issuer under
section 6 of this chapter.
(2) The registration statement has been on file for at least
twenty (20) days or a shorter period provided by rule adopted
or order issued under this article.
(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 section. The commissioner shall promptly
notify the registrant of an order by telegram, telephone, or electronic
means and promptly confirm this notice by a record. If the registrant
subsequently complies with the notice requirements of this 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 section is satisfied or is waived by the
commissioner, the registration statement is automatically effective
under this article 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 telegram,
telephone, or electronic means and promptly confirm this notice by
a record, indicating whether all the conditions are satisfied or waived
and whether the commissioner intends the institution of a proceeding
under section 6 of this chapter. The notice by the commissioner does
not preclude the institution of such a proceeding. As added by P.L.27-2007, SEC.23.
IC 23-19-3-4 Registration by qualification; registration statement; required
information; prospectus
Sec. 4. (a) A security may be registered by qualification under this
section.
(b) A registration statement under this section must contain the
information or records specified in section 5 of this chapter, a
consent to service of process complying with IC 23-19-6-11, and, if
required by rule adopted under this article, 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 (5) 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 (3) years or proposed to be effected.
(3) With respect to persons covered by subdivision (2), the
aggregate sum of the remuneration paid to those persons during
the previous twelve (12) months and estimated to be paid during
the next twelve (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, ten percent (10%) or more of the
outstanding shares of any class of equity security of the issuer,
the information specified in subdivision (2) other than the
person's occupation.
(5) With respect to a promoter, if the issuer was organized
within the previous three (3) years, the information or records
specified in subdivision (2), 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 (3) 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, goodwill, or anything else of value, for
which the issuer or any subsidiary has issued its securities
within the previous two (2) 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 achieve the purposes stated; the
sources of the funds; and, if a part of the proceeds is to be used
to acquire property, including goodwill, 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 subdivision (2), (4), (5), (6), or
(8) and by any person that holds or will hold ten percent (10%)
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
(2) 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
IC 23-19-2-2(17)(B).
(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 for a statement made by the person,
if the person is named as having prepared or certified a report
or valuation, other than an official record that is public, which
is used in connection with the registration statement.
(17) A balance sheet of the issuer as of a date within four (4)
months before the filing of the registration statement; a
statement of income and a statement of cash flows for each of
the three (3) 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 (3) 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.
(18) Any additional information or records required by rule
adopted or order issued under this article.
(c) A registration statement under this section becomes effective
thirty (30) days, or any shorter period provided by rule adopted or
order issued under this article, after the date the registration
statement or the last amendment other than a price amendment is
filed, if:
(1) a stop order is not in effect and a proceeding is not pending
under section 6 of this chapter;
(2) the commissioner has not issued an order under section 6 of
this chapter 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 ninety (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 thirty (30) days if the commissioner determines that the
delay is necessary or appropriate.
(e) A rule adopted or order issued under this article may require
as a condition of registration under this section that a prospectus
containing a specified part of the information or record specified in
subsection (b) 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 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 under such a sale; or
(4) delivery of the security under such a sale. As added by P.L.27-2007, SEC.23.
IC 23-19-3-5 Filing registration statement; fee; incorporation by reference;
nonissuer distribution; escrow and impoundment; effective period;
reports; amendment
Sec. 5. (a) A registration statement may be filed by the issuer, a
person on whose behalf the offering is to be made, or a broker-dealer
registered under this article.
(b) A person filing a registration statement shall pay a filing fee
of five-hundredths of one percent (0.05%) of the maximum aggregate
offering price at which the registered securities are to be offered in
Indiana, but the fee may not be less than two hundred fifty dollars
($250) and may not be more than one thousand dollars ($1,000). If
a registration statement is withdrawn before the effective date or a
preeffective stop order is issued under section 6 of this chapter, the
commissioner shall retain two hundred fifty dollars ($250) of the fee.
(c) A registration statement filed under section 3 or 4 of this
chapter must specify:
(1) the amount of securities to be offered in this state;
(2) the states in which a registration statement or similar record
in connection with the offering has been or is to be filed; and
(3) any adverse order, judgment, or decree issued in connection
with the offering by a state securities regulator, the Securities
and Exchange Commission, or a court.
(d) A record filed under this article or the 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 record is currently accurate.
(e) In the case of a nonissuer distribution, information or a record
may not be required under subsection (i) or section 4 of this chapter,
unless it is known to the person filing the registration statement or to
the person on whose behalf the distribution is to be made or unless
it can be furnished by those persons without unreasonable effort or
expense.
(f) A rule adopted or order issued under this article may require
as a condition of registration that a security issued within the
previous five (5) years or to be issued to a promoter for a
consideration substantially less than the public offering price or to a
person for a consideration other than cash be deposited in escrow and
that the proceeds from the sale of the registered security in this state
be impounded until the issuer receives a specified amount from the
sale of the security either in this state or elsewhere. The conditions
of any escrow or impoundment required under this subsection may
be established by rule adopted or order issued under this article, but
the commissioner may not reject a depository institution solely
because of its location in another state.
(g) A rule adopted or order issued under this article may require
as a condition of registration that a security registered under this
article be sold only on a specified form of subscription or sale
contract and that a signed or conformed copy of each contract be
filed under this article or preserved for a period specified by the rule
or order, which may not be longer than five (5) years.
(h) Except while a stop order is in effect under section 6 of this
chapter, a registration statement is effective for one (1) year after its
effective date, or for any longer period designated in an order under
this article during which the security is being offered or distributed
in a nonexempted transaction by or for the account of the issuer or
other person on whose behalf the offering is being made or by an
underwriter or broker-dealer that is still offering part of an unsold
allotment or subscription taken as a participant in the distribution.
For the purposes of a nonissuer transaction, all outstanding securities
of the same class identified in the registration statement as a security
registered under this article are considered to be registered while the
registration statement is effective. If any securities of the same class
are outstanding, a registration statement may not be withdrawn until
one (1) year after its effective date. A registration statement may be
withdrawn only with the approval of the commissioner.
(i) While a registration statement is effective, a rule adopted or
order issued under this article may require the person that filed the
registration statement to file reports, not more often than quarterly,
to keep the information or other record in the registration statement
reasonably current and to disclose the progress of the offering.
(j) A registration statement may be amended after its effective
date. The posteffective amendment becomes effective when the
commissioner so orders. If a posteffective amendment is made to
increase the number of securities specified to be offered or sold, the
person filing the amendment shall pay the greater of one hundred
dollars ($100) or the difference between the amount originally paid
and the amount the registration fee would have been if all the
securities to be offered had been registered. A posteffective
amendment relates back to the date of the offering of the additional
securities being registered if, within one (1) year after the date of the
sale, the amendment is filed and the additional registration fee is
paid. As added by P.L.27-2007, SEC.23.
IC 23-19-3-6 Stop orders; denial, suspension, or revocation of registration;
standards; postponement; hearing; process; modification or
vacating order
Sec. 6. (a) The commissioner may issue a stop order denying
effectiveness to, or suspending or revoking the effectiveness of, a
registration statement if the commissioner finds that the order is in
the public interest and that:
(1) the registration statement as of its effective date or before
the effective date in the case of an order denying effectiveness,
an amendment under section 5(j) of this chapter as of its
effective date, or a report under section 5(i) of this chapter, is
incomplete in a material respect or contains a statement that, in
the light of the circumstances under which it was made, was
false or misleading with respect to a material fact;
(2) this article, a rule adopted or order issued under this article,
or a condition imposed under this article has been willfully
violated, in connection with the offering, by the person filing
the registration statement; by the issuer, a partner, officer, or
director of the issuer or a person having a similar status or
performing a similar function; a promoter of the issuer; by a
person directly or indirectly controlling or controlled by the
issuer, but only if the person filing the registration statement is
directly or indirectly controlled by or acting for the issuer; or by
an underwriter;
(3) the security registered or sought to be registered is the
subject of a permanent or temporary injunction of a court with
jurisdiction or an administrative stop order or similar order
issued under any federal, foreign, or state law other than this
article applicable to the offering, but the commissioner may not
institute a proceeding against an effective registration statement
under this subdivision more than one (1) year after the date of
the order or injunction on which it is based, and the
commissioner may not issue an order under this subdivision on
the basis of an order or injunction issued under the securities act
of another state unless the order or injunction was based on
conduct that would constitute, as of the date of the order, a
ground for a stop order under this section;
(4) the issuer's enterprise or method of business includes or
would include activities that are unlawful where performed;
(5) with respect to a security sought to be registered under
section 3 of this chapter, there has been a failure to comply with
the undertaking required by section 3(b)(4) of this chapter;
(6) the applicant or registrant has not paid the filing fee, but the
commissioner shall void the order if the deficiency is corrected;
or
(7) the offering:
(A) will work or tend to work a fraud upon purchasers or
would so operate; or
(B) has been or would be made with unreasonable amounts
of underwriters' and sellers' discounts, commissions, or other
compensation, or promoters' profits or participations, or
unreasonable amounts or kinds of options.
(b) To the extent practicable, the commissioner by rule adopted
or order issued under this article shall publish standards that provide
notice of conduct that violates subsection (a)(7).
(c) The commissioner may not institute a stop order proceeding
against an effective registration statement on the basis of conduct or
a transaction known to the commissioner when the registration
statement became effective unless the proceeding is instituted within
thirty (30) days after the registration statement became effective.
(d) The commissioner may summarily revoke, deny, postpone, or
suspend the effectiveness of a registration statement pending final
determination of an administrative proceeding. Upon the issuance of
the order, the commissioner shall promptly notify each person
specified in subsection (e) that the order has been issued, the reasons
for the revocation, denial, postponement, or suspension, and that
within fifteen (15) days after the receipt of a request in a record from
the person the matter will be scheduled for a hearing. If a hearing is
not requested and none is ordered by the commissioner within thirty
(30) days after the date of service of the order, the order becomes
final. If a hearing is requested or ordered, the commissioner, after
notice of and opportunity for hearing for each person subject to the
order, may modify or vacate the order or extend the order until final
determination.
(e) A stop order may not be issued under this section without:
(1) appropriate notice to the applicant or registrant, the issuer,
and the person on whose behalf the securities are to be or have
been offered;
(2) an opportunity for hearing; and
(3) findings of fact and conclusions of law in a record.
(f) The commissioner may modify or vacate a stop order issued
under this section if the commissioner finds that the conditions that
caused its issuance have changed or that it is necessary or
appropriate in the public interest or for the protection of investors. As added by P.L.27-2007, SEC.23.
IC 23-19-3-7 Waiver or modification of requirements
Sec. 7. The commissioner may waive or modify, in whole or in
part, any or all of the requirements of sections 2, 3, and 4(b) of this
chapter or the requirement of any information or record in a
registration statement or in a periodic report filed under section 5(i)
of this chapter. As added by P.L.27-2007, SEC.23.
IC 23-19-3
Chapter 3. Registration of Securities and Notice Filing of Federal
Covered Securities
IC 23-19-3-1 Unlawful acts
Sec. 1. It is unlawful for a person to offer or sell a security in this
state unless:
(1) the security is a federal covered security;
(2) the security, transaction, or offer is exempted from
registration under IC 23-19-2-1 through IC 23-19-2-3; or
(3) the security is registered under this article. As added by P.L.27-2007, SEC.23.
IC 23-19-3-2 Filing and fee requirements
Sec. 2. (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.
77r(b)(2)), that is not otherwise exempt under IC 23-19-2-1 through
IC 23-19-2-3, a rule adopted or order issued under this article 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 and a consent to service of process
complying with IC 23-19-6-11 signed by the issuer and the
payment of a fee of:
(A) five hundred dollars ($500) for an issuer with net assets
not exceeding ten million dollars ($10,000,000); or
(B) one thousand dollars ($1,000) for other issuers.
(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.
(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 five-hundredths of one
percent (0.05%) of the excess of the dollar amount of securities
sold during the fiscal year over the dollar amount of securities
redeemed, not to exceed two thousand dollars ($2,000) in any
one (1) year. The fee required in subdivision (1) shall be
applied as a credit against the fee required under this
subdivision.
(b) A notice filing under subsection (a) is effective for one (1)
year commencing on the later of the notice filing or the effectiveness
of the offering filed with the Securities and Exchange 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 or order under this
article to be filed and by paying a renewal fee of two hundred fifty
dollars ($250). A previously filed consent to service of process
complying with IC 23-19-6-11 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.
77r(b)(4)(D)), a rule under this article 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
IC 23-19-6-11 signed by the issuer not later than fifteen (15) days
after the first sale of the federal covered security in this state.
(d) Except with respect to a federal security under Section
18(b)(1) of the Securities Act of 1933 (15 U.S.C. 77r(b)(1)), if the
commissioner finds that there is a failure to comply with a notice or
fee requirement of this 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. As added by P.L.27-2007, SEC.23.
IC 23-19-3-3 Registration under Securities Act of 1933; registration by
coordination; registration statement; required information; notice
Sec. 3. (a) A security for which a registration statement has been
filed under the Securities Act of 1933 in connection with the same
offering may be registered by coordination under this section.
(b) A registration statement and accompanying records under this
section must contain or be accompanied by the following records in
addition to the information specified in section 5 of this chapter and
a consent to service of process complying with IC 23-19-6-11:
(1) A copy of the latest form of prospectus filed under the
Securities Act of 1933.
(2) A copy of the articles of incorporation and bylaws or their
substantial equivalents currently in effect; a copy of any
agreement 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
article.
(3) Copies of any other information or any other records filed
by the issuer under the Securities Act of 1933 requested by the
commissioner.
(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 section becomes effective
simultaneously with or subsequent to the federal registration
statement when all the following conditions are satisfied:
(1) A stop order under subsection (d) or section 6 of this chapter
or issued by the Securities and Exchange Commission is not in
effect and a proceeding is not pending against the issuer under
section 6 of this chapter.
(2) The registration statement has been on file for at least
twenty (20) days or a shorter period provided by rule adopted
or order issued under this article.
(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 section. The commissioner shall promptly
notify the registrant of an order by telegram, telephone, or electronic
means and promptly confirm this notice by a record. If the registrant
subsequently complies with the notice requirements of this 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 section is satisfied or is waived by the
commissioner, the registration statement is automatically effective
under this article 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 telegram,
telephone, or electronic means and promptly confirm this notice by
a record, indicating whether all the conditions are satisfied or waived
and whether the commissioner intends the institution of a proceeding
under section 6 of this chapter. The notice by the commissioner does
not preclude the institution of such a proceeding. As added by P.L.27-2007, SEC.23.
IC 23-19-3-4 Registration by qualification; registration statement; required
information; prospectus
Sec. 4. (a) A security may be registered by qualification under this
section.
(b) A registration statement under this section must contain the
information or records specified in section 5 of this chapter, a
consent to service of process complying with IC 23-19-6-11, and, if
required by rule adopted under this article, 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 (5) 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 (3) years or proposed to be effected.
(3) With respect to persons covered by subdivision (2), the
aggregate sum of the remuneration paid to those persons during
the previous twelve (12) months and estimated to be paid during
the next twelve (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, ten percent (10%) or more of the
outstanding shares of any class of equity security of the issuer,
the information specified in subdivision (2) other than the
person's occupation.
(5) With respect to a promoter, if the issuer was organized
within the previous three (3) years, the information or records
specified in subdivision (2), 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 (3) 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, goodwill, or anything else of value, for
which the issuer or any subsidiary has issued its securities
within the previous two (2) 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 achieve the purposes stated; the
sources of the funds; and, if a part of the proceeds is to be used
to acquire property, including goodwill, 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 subdivision (2), (4), (5), (6), or
(8) and by any person that holds or will hold ten percent (10%)
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
(2) 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
IC 23-19-2-2(17)(B).
(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 for a statement made by the person,
if the person is named as having prepared or certified a report
or valuation, other than an official record that is public, which
is used in connection with the registration statement.
(17) A balance sheet of the issuer as of a date within four (4)
months before the filing of the registration statement; a
statement of income and a statement of cash flows for each of
the three (3) 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 (3) 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.
(18) Any additional information or records required by rule
adopted or order issued under this article.
(c) A registration statement under this section becomes effective
thirty (30) days, or any shorter period provided by rule adopted or
order issued under this article, after the date the registration
statement or the last amendment other than a price amendment is
filed, if:
(1) a stop order is not in effect and a proceeding is not pending
under section 6 of this chapter;
(2) the commissioner has not issued an order under section 6 of
this chapter 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 ninety (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 thirty (30) days if the commissioner determines that the
delay is necessary or appropriate.
(e) A rule adopted or order issued under this article may require
as a condition of registration under this section that a prospectus
containing a specified part of the information or record specified in
subsection (b) 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 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 under such a sale; or
(4) delivery of the security under such a sale. As added by P.L.27-2007, SEC.23.
IC 23-19-3-5 Filing registration statement; fee; incorporation by reference;
nonissuer distribution; escrow and impoundment; effective period;
reports; amendment
Sec. 5. (a) A registration statement may be filed by the issuer, a
person on whose behalf the offering is to be made, or a broker-dealer
registered under this article.
(b) A person filing a registration statement shall pay a filing fee
of five-hundredths of one percent (0.05%) of the maximum aggregate
offering price at which the registered securities are to be offered in
Indiana, but the fee may not be less than two hundred fifty dollars
($250) and may not be more than one thousand dollars ($1,000). If
a registration statement is withdrawn before the effective date or a
preeffective stop order is issued under section 6 of this chapter, the
commissioner shall retain two hundred fifty dollars ($250) of the fee.
(c) A registration statement filed under section 3 or 4 of this
chapter must specify:
(1) the amount of securities to be offered in this state;
(2) the states in which a registration statement or similar record
in connection with the offering has been or is to be filed; and
(3) any adverse order, judgment, or decree issued in connection
with the offering by a state securities regulator, the Securities
and Exchange Commission, or a court.
(d) A record filed under this article or the 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 record is currently accurate.
(e) In the case of a nonissuer distribution, information or a record
may not be required under subsection (i) or section 4 of this chapter,
unless it is known to the person filing the registration statement or to
the person on whose behalf the distribution is to be made or unless
it can be furnished by those persons without unreasonable effort or
expense.
(f) A rule adopted or order issued under this article may require
as a condition of registration that a security issued within the
previous five (5) years or to be issued to a promoter for a
consideration substantially less than the public offering price or to a
person for a consideration other than cash be deposited in escrow and
that the proceeds from the sale of the registered security in this state
be impounded until the issuer receives a specified amount from the
sale of the security either in this state or elsewhere. The conditions
of any escrow or impoundment required under this subsection may
be established by rule adopted or order issued under this article, but
the commissioner may not reject a depository institution solely
because of its location in another state.
(g) A rule adopted or order issued under this article may require
as a condition of registration that a security registered under this
article be sold only on a specified form of subscription or sale
contract and that a signed or conformed copy of each contract be
filed under this article or preserved for a period specified by the rule
or order, which may not be longer than five (5) years.
(h) Except while a stop order is in effect under section 6 of this
chapter, a registration statement is effective for one (1) year after its
effective date, or for any longer period designated in an order under
this article during which the security is being offered or distributed
in a nonexempted transaction by or for the account of the issuer or
other person on whose behalf the offering is being made or by an
underwriter or broker-dealer that is still offering part of an unsold
allotment or subscription taken as a participant in the distribution.
For the purposes of a nonissuer transaction, all outstanding securities
of the same class identified in the registration statement as a security
registered under this article are considered to be registered while the
registration statement is effective. If any securities of the same class
are outstanding, a registration statement may not be withdrawn until
one (1) year after its effective date. A registration statement may be
withdrawn only with the approval of the commissioner.
(i) While a registration statement is effective, a rule adopted or
order issued under this article may require the person that filed the
registration statement to file reports, not more often than quarterly,
to keep the information or other record in the registration statement
reasonably current and to disclose the progress of the offering.
(j) A registration statement may be amended after its effective
date. The posteffective amendment becomes effective when the
commissioner so orders. If a posteffective amendment is made to
increase the number of securities specified to be offered or sold, the
person filing the amendment shall pay the greater of one hundred
dollars ($100) or the difference between the amount originally paid
and the amount the registration fee would have been if all the
securities to be offered had been registered. A posteffective
amendment relates back to the date of the offering of the additional
securities being registered if, within one (1) year after the date of the
sale, the amendment is filed and the additional registration fee is
paid. As added by P.L.27-2007, SEC.23.
IC 23-19-3-6 Stop orders; denial, suspension, or revocation of registration;
standards; postponement; hearing; process; modification or
vacating order
Sec. 6. (a) The commissioner may issue a stop order denying
effectiveness to, or suspending or revoking the effectiveness of, a
registration statement if the commissioner finds that the order is in
the public interest and that:
(1) the registration statement as of its effective date or before
the effective date in the case of an order denying effectiveness,
an amendment under section 5(j) of this chapter as of its
effective date, or a report under section 5(i) of this chapter, is
incomplete in a material respect or contains a statement that, in
the light of the circumstances under which it was made, was
false or misleading with respect to a material fact;
(2) this article, a rule adopted or order issued under this article,
or a condition imposed under this article has been willfully
violated, in connection with the offering, by the person filing
the registration statement; by the issuer, a partner, officer, or
director of the issuer or a person having a similar status or
performing a similar function; a promoter of the issuer; by a
person directly or indirectly controlling or controlled by the
issuer, but only if the person filing the registration statement is
directly or indirectly controlled by or acting for the issuer; or by
an underwriter;
(3) the security registered or sought to be registered is the
subject of a permanent or temporary injunction of a court with
jurisdiction or an administrative stop order or similar order
issued under any federal, foreign, or state law other than this
article applicable to the offering, but the commissioner may not
institute a proceeding against an effective registration statement
under this subdivision more than one (1) year after the date of
the order or injunction on which it is based, and the
commissioner may not issue an order under this subdivision on
the basis of an order or injunction issued under the securities act
of another state unless the order or injunction was based on
conduct that would constitute, as of the date of the order, a
ground for a stop order under this section;
(4) the issuer's enterprise or method of business includes or
would include activities that are unlawful where performed;
(5) with respect to a security sought to be registered under
section 3 of this chapter, there has been a failure to comply with
the undertaking required by section 3(b)(4) of this chapter;
(6) the applicant or registrant has not paid the filing fee, but the
commissioner shall void the order if the deficiency is corrected;
or
(7) the offering:
(A) will work or tend to work a fraud upon purchasers or
would so operate; or
(B) has been or would be made with unreasonable amounts
of underwriters' and sellers' discounts, commissions, or other
compensation, or promoters' profits or participations, or
unreasonable amounts or kinds of options.
(b) To the extent practicable, the commissioner by rule adopted
or order issued under this article shall publish standards that provide
notice of conduct that violates subsection (a)(7).
(c) The commissioner may not institute a stop order proceeding
against an effective registration statement on the basis of conduct or
a transaction known to the commissioner when the registration
statement became effective unless the proceeding is instituted within
thirty (30) days after the registration statement became effective.
(d) The commissioner may summarily revoke, deny, postpone, or
suspend the effectiveness of a registration statement pending final
determination of an administrative proceeding. Upon the issuance of
the order, the commissioner shall promptly notify each person
specified in subsection (e) that the order has been issued, the reasons
for the revocation, denial, postponement, or suspension, and that
within fifteen (15) days after the receipt of a request in a record from
the person the matter will be scheduled for a hearing. If a hearing is
not requested and none is ordered by the commissioner within thirty
(30) days after the date of service of the order, the order becomes
final. If a hearing is requested or ordered, the commissioner, after
notice of and opportunity for hearing for each person subject to the
order, may modify or vacate the order or extend the order until final
determination.
(e) A stop order may not be issued under this section without:
(1) appropriate notice to the applicant or registrant, the issuer,
and the person on whose behalf the securities are to be or have
been offered;
(2) an opportunity for hearing; and
(3) findings of fact and conclusions of law in a record.
(f) The commissioner may modify or vacate a stop order issued
under this section if the commissioner finds that the conditions that
caused its issuance have changed or that it is necessary or
appropriate in the public interest or for the protection of investors. As added by P.L.27-2007, SEC.23.
IC 23-19-3-7 Waiver or modification of requirements
Sec. 7. The commissioner may waive or modify, in whole or in
part, any or all of the requirements of sections 2, 3, and 4(b) of this
chapter or the requirement of any information or record in a
registration statement or in a periodic report filed under section 5(i)
of this chapter. As added by P.L.27-2007, SEC.23.
