Wyo. Code R. 002-0017-7
Effective Date: 01/11/1996 to 07/01/1997
Rule Type: Superceded Rules & Regulations
Reference Number: 002.0017.7.01111996
(a) Every person registering securities by coordination, W.S. §17-4-109, shall:
(i) utilize the electronic filing format, submit registration fees and follow procedures prescribed by SRD or similar electronic filing systems, when available.
(ii) if not electronically filed, shall file a fully executed Uniform Application to Register Securities, Form U-1, and all documents required by that form, except:
(A) a copy of an earning computation or similar document is not required;
(B) advertising material filed with the SEC or the NASD is not required.
(iii) include a filing fee as required by W.S. §17-4-111 (b). The fee may be paid with a check made payable to the Secretary of State. The check need not be certified or guaranteed. Upon withdrawal of the application prior to the effective date or being stop ordered, the Secretary of State shall retain one hundred dollars ($100) of the fee.
(iv) stipulate to the issuer's waiving its effectiveness in Wyoming concurrent with SEC effectiveness pursuant to W.S. §17-4-109(c) if the registration statement is already effective on the date of its filing with the Secretary of State. The Secretary of State may make the registration statement effective on its date of filing or at a later date when satisfied the offering has met all requirements.
(v) not be required to include any pamphlet, circular, form letter, advertisement, or other sales literature or advertising communication addressed to or intended for distribution to prospective investors if it has been or will be filed with the SEC or NASD. However copies of such material requested shall be furnished to the Secretary of State on demand.
(b) Each registration statement filed by coordination pursuant to W.S. §17-4-109 may be approved pending SEC effectiveness without being reviewed by the Secretary of State.
(a) Every person registering securities by qualification, W.S. §17-4-110, except applications made pursuant to Chapter 7, Section 3 (Small Corporate Offering Registration), shall file with the Secretary of State:
(i) a fully executed Uniform Application to Register Securities, Form U-1, and all documents required by that form, except:
(A) a copy of an earning computation or similar document is not required;
(B) advertising material filed with the SEC or the NASD is not required.
(ii) a filing fee as required by W.S. §17-4-111. The fee may be paid with a check made payable to the Secretary of State. The check need not be certified or guaranteed. Upon withdrawal of the application prior to the application being ordered effective or being stop ordered, the Secretary of State shall retain one hundred dollars ($100) of the fee.
(b) Every person registering securities by qualification shall:
(i) include disclosure in the registration statement or prospectus in accordance with Federal Regulation S-B [17 CFR §228.10 through 228.702]; Industry Specific Disclosure Requirements in Guide 7 [17 CFR §229.801 (g) and §802 (g)]; or other applicable Federal Disclosure Guideline and which complies with W.S. §17-4-110 (b);
(ii) include in the registration statement or prospectus financial statements prepared in accordance with generally accepted accounting principles in the United States pursuant to 17 CFR §228.310 including:
(A) an audited balance sheet as of the end of the most recent fiscal year, or as of a date within 135 days if the issuer existed for a period less than one fiscal year, and audited statements of income, cash flows and changes in stockholders' equity for each of the two fiscal years preceding the date of such audited balance sheet (or such shorter period as the registrant has been in business; and,
(B) interim financial statements, which may be unaudited, which shall include a balance sheet as of the end of the issuer's most recent fiscal quarter and income statements and statements of cash flows for the interim period up to the date of such balance sheet and the comparable period of the preceding fiscal year; but,
(C) the Secretary of State, where consistent with the premise of protection of investors, may permit the omission of one or more of the financial statements or the substitution of appropriate statements of comparable character; and
(D) the Secretary of State by informal written notice may require the filing of other financial statements, audited or unaudited, where necessary or appropriate of the issuer, subsidiaries, parent companies, affiliates, general partners, or for limited liability companies, members or managers.
(iii) subscribe investors in Wyoming once the offering is declared effective on a form acceptable to the Secretary of State. The issuer shall retain the executed subscription documents for three years following close of the offering.
(iv) deposit all monies received from the sale of securities from the offering in a segregated account exclusively for impoundment of offering proceeds at any financial institution(s) independent of the issuer, unless the Secretary of State determines deposit of offering proceeds in a segregated account would not provide added investor protection.
(A) The impounded proceeds shall not be removed from the segregated account until the minimum amount of offering proceeds subject to the registration statement or prospectus are deposited in the segregated account.
(B) If the minimum amount of offering proceeds subject to the registration are not received into the segregated account within the time frame established in the registration statement or prospectus, all offering proceeds shall be returned to the subscribers without deduction.
(C) Upon depositing at least the minimum amount of offering proceeds in the segregated account, the issuer may begin using the offering proceeds in a manner consistent with the 'Use of Proceeds' disclosures in the issuer's registration statement.
(D) The Secretary of State may require the issuer to provide bank statements, deposit slips, subscription agreements or other documentation as proof that the minimum sales proceeds were deposited in the segregated account.
(c) No distribution of a registration statement, delivery of a subscription agreement or any offer of a security being registered may occur in this state until the offering has been ordered effective by the Secretary of State, unless made in accordance with W.S. §17-4-114(b)(xiii) and rules relating to that section.
(d) The registration statement shall be supplied to every potential investor so that investors may have an opportunity to review the prospectus and make an informed determination whether or not to invest prior to subscribing or paying any money.
(e) Issuers which are general partnerships, limited partnerships, limited liability companies, trusts or other entities with unique characteristics different from corporations require specialized disclosure regarding such matters as their partnership agreement, operating agreement, tax consequences of investment, investor liability or other information necessary for an investor to make an informed decision whether or not to invest.
(f) The Secretary of State may utilize the following NASAA statements of policy as published in the CCH NASAA Reporter as standards of disclosure and fairness in review of securities registration statements or prospectuses for entities engaged in activities that follow:
Section 3. Small Corporate Offering Registration (SCOR).
(a) The requirements contained in this Section 3 shall apply to registrations by qualification, W.S. §17-4-110:
(i) not exceeding $1 million which are exempt from Federal registration pursuant to Rule 504 of Regulation D of the Securities Act of 1933 and which utilize Registration Form U-7, or
(ii) offerings not exceeding $5 million which are made pursuant to Regulation A of the Securities Act of 1933.
(b) In any registration by qualification filed pursuant to this Section 3, the issuer shall:
(i) Be a corporation organized under the laws of the United States or Canada, or any state, province, or territory or possession thereof, or the District of Columbia and have its principal place of business in one of the foregoing;
(ii) Not be required to file under the reporting requirements of §12 or 15(d) of the Securities Exchange Act of 1934;
(iii) Not be an investment company registered or be required to be registered under the Investment Company Act of 1940;
(iv) Not be engaged in or propose to be engaged in petroleum exploration and production, mining, or other extractive industry or activity listed in Rule Chapter 7, Section 2(f) which, because of its nature, requires unique or specialized disclosure to potential investors not contemplated by the Form U-7;
(v) Be a company with specified use of offering proceeds and not be an issuer which has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies or other entity or person;
(vi) Not be disqualified under subsection (h) of this Section 3.
(c) The offering price for common stock, the exercise price for options, warrants, or rights to common stock, or the conversion price for securities convertible into common stock must be greater than or equal to $1.00 (one dollar) per share unless good cause can be shown to the Secretary of State why a lessor amount should be allowed. The issuer must agree with the Secretary of State that as a condition of using this section that it will not split its common stock or declare a stock dividend for two years after the date of the registration. However, upon application to, and with the consent of the Secretary of State, the issuer may take such action in connection with a subsequent registered public offering.
(d) In connection with an offering under this Section 3, commissions, fees or other remuneration for soliciting or finding any prospective purchaser in this state may only be paid to persons who are appropriately registered with the Secretary of State.
(e) The issuer of any debt offering shall demonstrate to the Secretary of State the ability to service its debt, including any amount to be added as a result of this registration.
(f) The Secretary of State prescribes the following requirements for financial statements to be filed by issuers seeking registration of securities pursuant to this Section 3. The Secretary of State may permit the omission of one or more of the financial statements or the substitution of appropriate statements of comparable character. The Secretary of State may require the filing of other financial statements where necessary or appropriate. The Secretary of State may consider prior operating history of the issuer, previous securities offerings by the issuer, the dollar amount of securities proposed for sale by the issuer, or other circumstances deemed germane to granting a variance from these requirements:
(i) Issuers seeking aggregate offering amounts of $500,000 or less, shall prepare and file with the Secretary of State for inclusion in the registration statement or prospectus.
(A) A balance sheet and a statement of income both dated as of the issuer's last fiscal year end supplemented with the same financial information dated as of the most recent fiscal quarter. If the company has not conducted significant operations, a statement of receipts and disbursements shall be included in lieu of a statement of income;
(B) The balance sheet and statement of income shall be verified by the President or chief financial officer of the issuer as to accuracy and completeness;
(C) The balance sheet and statement of income shall be prepared in a format which fairly states the financial condition of the issuer. The Secretary of State may require other statements, notes to the financial statements, information or disclosures to be included which are deemed necessary so the disclosures are not misleading;
(ii) Issuers seeking aggregate offering amounts greater than $500,000 but equal to or less than one million dollars ($1,000,000) shall:
(A) Prepare and file with the Secretary of State for inclusion in the registration statement or prospectus a financial statement comprised of a balance sheet, a statement of income, a statement of cash flows and a statement of changes in stockholder's equity prepared in accordance with either American or Canadian generally accepted accounting principles depending upon the issuer's country of domicile. The financial statements shall be dated as of the last fiscal year ended and for the fiscal year preceding the date of such current financial statement;
(B) Prepare and file interim financial statements, which need not be reviewed or audited, dated as of the end of the issuer's most recent fiscal quarter ended;
(C) Cause the financial statement to be reviewed by an independent certified public accountant in accordance with the Accounting and Review Service Standards promulgated by the American Institute of Certified Public Accountants or the Canadian equivalent;
(D) Not have previously sold securities through an offering involving the general solicitation of prospective investors by means of advertising, mass mailings, public meetings, 'cold call' telephone solicitation, or any other method directed toward the public;
(E) Not have been previously required under federal, state, provincial or territorial securities laws to provide audited financial statements in connection with any sale of its securities;
(F) Not have sold an aggregate amount of securities (exclusive of debt financing with banks and similar commercial lenders) exceeding $1,000,000.
(iii) Issuers filing with the SEC under Federal Regulation A [15 USC §77c (b)] shall prepare and file with the Secretary of State for inclusion in the registration statement or prospectus:
(A) An audited balance sheet as of the end of the most recent fiscal year, or as of a date within 135 days if the issuers existed for a period of less than one fiscal year, and audited statements of income, cash flows and changes in stockholders' equity for each of the two fiscal years preceding the date of such audited balance sheet (or such shorter period as the registrant has been in business); and
(B) Interim financial statements, which may be unaudited, shall include a balance sheet as of the end of the issuer's most recent fiscal quarter and income statements and statements of cash flows for the interim period up to the date of such balance sheet and the comparable period of the preceding fiscal year; and,
(C) Financial statements of the issuer, its predecessors or any businesses to which the issuer is a successor shall be prepared in accordance with generally accepted accounting principles in the United States.
(g) deposit all monies received from the sale of securities from the offering sold in a segregated account exclusively for impoundment of offering proceeds at any financial institution(s) independent of the issuer, unless the Secretary of State determines deposit of offering proceeds in a segregated account would not provide added investor protection.
(i) The impounded proceeds shall not be removed from the segregated account until the minimum amount of offering proceeds subject to the registration statement or prospectus are deposited in the segregated account.
(ii) If the minimum amount of offering proceeds subject to the registration are not received into the segregated account within the time frame established in the registration statement or prospectus, all offering proceeds shall be returned to the subscribers without deduction.
(iii) Upon depositing at least the minimum amount of offering proceeds in the segregated account, the issuer may begin using the offering proceeds in a manner consistent with the 'Use of Proceeds' disclosures in the issuer's registration statement.
(iv) The Secretary of State may require the issuer to provide bank statements, deposit slips, subscription agreements or other documentation as proof that the minimum sales proceeds were deposited in the segregated account.
(h) Applications for registration referred to in this Section 3 shall be denied if the issuer; any of its officers, directors, ten percent or greater stockholders, promoters, or selling agents or, any officer, director or partner of any selling agent has met any of the conditions set forth in Chapter 6, Section 2(B)(I) of these rules, unless the Secretary of State determines that the disqualifications under this subsection not be applied.
(i) Every issuer, when filing pursuant to this Section 3, shall file with the Secretary of State the following:
(i) a fully executed Uniform Application to Register Securities, Form U-1. Any references in the Form U-1 to SEC registration and effectiveness should be disregarded and Questions 6 and 8(a) of the Form U-1 are deemed inapplicable.
(ii) include a filing fee as required by W.S. §17-4-111(b). The fee may be paid with a check made payable to the Secretary of State. The check need not be certified or guaranteed. Upon withdrawal of the application prior to the effective date or being stop ordered, the Secretary of State shall retain the allowable portion of the fee.
(iii) a properly completed Form U-2, Consent to Service of Process, appointing the Secretary of State as the issuer's agent in the State of Wyoming for service of process;
(iv) a properly completed Form U-2a, Corporate Resolution, authorizing a corporate officer to perform the acts necessary to effect issuance of securities by the corporation;
(v) a Form U-7 or format prescribed by Regulation A completed pursuant to the applicable instructions.
(A) If the offering is currently effective in any other jurisdiction, the effective date shall be listed on the bottom of the cover page of the Form U-7.
(B) Each question in each paragraph of the Form shall be answered unless it is inapplicable. If it is inapplicable, answer the question 'not applicable' (N/A). The Form U-7 contains multiple or compound questions and the answer shall clearly and concisely respond to all aspects of the question.
(C) If the space provided is insufficient to answer completely, additional space may be created. Care should be taken to assure the Form U-7 is accurately and completely reproduced. Smaller type size shall not be used, and script or italic type styles shall be avoided, however, the responses to questions may be bold-faced type to distinguish them from the questions.
(vi) A sample of the subscription agreement to be executed between the issuer and the investor. The Subscription Agreement may address matters of suitability, liquidity of the investment, acknowledgment of prospectus delivery and investor acknowledgment of risk factors disclosed in the Form U-7.
(j) The Form U-7 or disclosure document prescribed under Regulation A constitutes the offering circular or prospectus. The Form U-7 or applicable Regulation A form, once declared effective, may be reproduced by the issuer for dissemination to potential investors. (The issuer is cautioned to control the copying and distribution to prevent inaccurate or unreadable copies from being used and to prevent other unauthorized uses for which the issuer may nevertheless be held responsible.) The instructions are not part of the disclosure document and should not be included.
(k) The Secretary of State may issue comments, questions or orders concerning the Form U-7 or applicable Regulation A disclosure form and changes may be required before the Form is approved for use and declared effective. Comments and questions may either be included in a letter or made by telephone communication initiated by the Secretary of State in response to the filing. The disclosure form serves to protect the issuer if investors subsequently claim false statements and omissions were made to induce purchases of the security in addition to informing potential investors about the facts of the offering.
(l) No offers or sales may be made in this state until the registration statement has been declared effective by the Secretary of State. Making offers or sales before the registration statement is effective may lead to a stop order or other proceeding which would preclude use of the Form U-7 or Regulation A in this or any other state. It could also give rise to a right of recision by investors enforceable against management, principal stockholders and selling agents as well as the issuer. When the registration statement has been declared effective in this state, offers and sales may be made in this state even though registration in other states has not been declared effective. This disclosure document shall be delivered to each investor before the sale is made:
(m) After the registration statement has been declared effective, and while the offering is still in progress, the disclosure form shall be amended or supplemented to reflect material events concerning the issuer or the offering to make the disclosure form accurate and complete. A copy of the disclosure form as changed, revised or supplemented clearly marked to show changes from the previously filed version (including amendments to reflect registration effectiveness in other jurisdictions) shall be filed with the Secretary of State. If any of the revisions are of such significance as to materially change the terms of the offering or the financial condition of the company, the disclosure document on this Form as revised or supplemented shall be recirculated to persons in this state that have previously subscribed, and they shall be given the opportunity to rescind or reconfirm their investment.
(n) Options, warrants and similar rights to purchase securities constitute a continuous offering of the underlying securities during the exercise period. The securities shall remain registered and the disclosure document shall be kept continuously current throughout the exercise period through the use of the above amendment procedure or by means of a supplement, as appropriate. Upon any change, revision or supplement to the disclosure document, a copy shall be promptly furnished to the holders of options, warrants and similar rights.
(o) The registration statement shall be effective only for a period of not more than one year from its effective date unless renewed.
(p) Any and all supplemental selling literature or advertisements announcing the offering shall be filed by the issuer and be cleared with the securities administrator of each state prior to publication or circulation within that state. An announcement shall not be a sales motivation device and should normally contain no more than the following:
(i) the name of the issuer;
(ii) characterization of the issuer as indicated on the cover page of the disclosure document;
(iii) address and telephone number of the issuer;
(iv) a brief indication in ten words or less of the issuer's business or proposed business;
(v) the number and type of securities offered and the offering price per security;
(vi) the name address and telephone number of any selling agent authorized to sell the securities;
(vii) a statement that the announcement does not constitute an offer to sell or solicitation of an offer to purchase and that any such offer shall be made by official disclosure document;
(viii) how a copy of the disclosure document may be obtained;
(ix) the company's corporate logo;
(x) clip and return coupons requesting a copy of the disclosure document are permitted in printed announcements.
(q) The issuance of anything but routine press releases or the granting of interviews to news media during, or at about the same time of, an offering could constitute indirect advertising, which if not cleared with the securities administrator would be prohibited. Any unusual news article or news program featuring the issuer during this period, particularly if present or future earnings, or the pending offering, are mentioned, could delay or cause suspension of the effectiveness of the registration and disrupt the offering. Consequently any such news article or news program, no matter by whom it may be initiated, should generally be discouraged during this period.
(r) The Secretary of State may waive any standard set forth in this Section 3 or impose additional standards as deemed appropriate to further investor protection.
(a) After filing with the Secretary of State any offering not yet effective:
(i) May withdraw its application from registration unless the Secretary of State has initiated an action for entry of a stop order or has previously entered a stop order or similar action against the issuer. The Secretary of State shall retain one hundred dollars ($100) of the filing fee.
(ii) May be deemed abandoned by the Secretary of State if that application has been on file for one year or more without becoming effective. If no request for extension is received, or if no correspondence is received regarding the filing even after the Secretary of State notifies the correspondent, the offering will be deemed abandoned and the Secretary of State shall retain the entire filing fee.
(iii) Shall not become effective until comments directed to the issuer for resolution have been addressed to the satisfaction of the Secretary of State.
Section 5. Post Filing Requirements. All securities registration filings which have been declared effective shall:
(a) Renew registration within 60 days following the anniversary date of its effectiveness by:
(i) requesting renewal in a letter addressed to the Secretary of State identifying the registration by its Wyoming file number; and,
(ii) including fees as required in W.S. §17-4-111 (b); and,
(iii) filing all amendments necessary to keep the registration materials current; or
(b) Cancel effectiveness with the Secretary of State, without prejudice toward secondary trading as quickly as possible after the offering is completed or terminated by:
(i) requesting the effective registration status be canceled in a letter addressed to the Secretary of State specifying the name of the issuer, the Wyoming file number if known, and making clear whether the request is for cancellation of only a portion or the entire registration; or
(c) Have its effective registration status administratively revoked within 60 days following the registration's anniversary effective date if:
(i) no renewal is effected; or,
(ii) no letter requesting cancellation is received by the Secretary of State.