NEW MEXICO UNIFORM SECURITIES ACT

ARTICLE 3

Registration of Securities and Notice Filing of Federal Covered Securities

Section

58-13C-301   Securities registration requirement.

58-13C-302   Notice filing.

58-13C-303   Securities registration by coordination.

58-13C-304   Securities registration by qualification.

58-13C-305   Securities registration filings.

58-13C-306   Denial, suspension and revocation of securities registration.

58-13C-307   Waiver and modification.

58-13C-301. Securities registration requirement.  (2009) 

It is unlawful for a person to offer or sell a security in New Mexico unless:

A.   the security is a federal covered security;

B.   the security, transaction or offer is exempted from registration pursuant to Sections 201 [58-13C-201 NMSA 1978] through 203 [58-13C-203 NMSA 1978] of the New Mexico Uniform Securities Act; or 

C.   the security is registered pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978].

History: Laws 2009, ch. 82, § 301.

58-13C-302. Notice filing.  (2009) 

A.   With respect to a federal covered security, as defined in Section 18(b)(2) of the federal Securities Act of 1933 (15 U.S.C. Section 77r(b)(2)), that is not otherwise exempt pursuant to Sections 201 [58-13C-201 NMSA 1978] through 203 [58-13C-203 NMSA 1978] of the New Mexico Uniform Securities Act, a rule adopted or order issued pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] may require the filing of any or all of the following records:

(1)   before the initial offer of a federal covered security in New Mexico, all records that are part of a federal registration statement filed with the securities and exchange commission pursuant to the federal Securities Act of 1933 and a consent to service of process complying with Section 611 [58-13C-611 NMSA 1978] of the New Mexico Uniform Securities Act signed by the issuer and the payment of a fee of five hundred twenty-five dollars ($525) for all investment companies other than a unit investment trust or two hundred dollars ($200) for a unit investment trust; and

(2)   after the initial offer of the federal covered security in New Mexico, all records that are part of an amendment to a federal registration statement filed with the securities and exchange commission pursuant to the federal Securities Act of 1933.

B.   A notice filing pursuant to Subsection A of this section is effective for one year commencing on the later of the notice filing or the effectiveness of the offering filed with the securities and exchange 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 pursuant to the New Mexico Uniform Securities Act to be filed and by paying a renewal fee of five hundred twenty-five dollars ($525) for all investment companies other than a unit investment trust or two hundred dollars ($200) for a unit investment trust.  A previously filed consent to service of process complying with Section 611 of the New Mexico Uniform Securities Act 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 pursuant to Section 18(b)(4)(D) of the federal Securities Act of 1933 (15 U.S.C. Section 77r(b)(4)(D)), including Rule 506 of Regulation D (17 C.F.R. 230.506), a rule pursuant to the New Mexico Uniform Securities Act 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 Section 611 of the New Mexico Uniform Securities Act signed by the issuer not later than fifteen days after the first sale of the federal covered security in New Mexico and the payment of a fee of three hundred fifty dollars ($350) and the payment of a fee in an amount up to one thousand fifty dollars ($1,050) as specified by the director by rule for any late filing.

D.   Except with respect to a federal security pursuant to Section 18(b)(1) of the federal Securities Act of 1933 (15 U.S.C. Section 77r(b)(1)), if the director finds that there is a failure to comply with a notice or fee requirement of this section, the director may issue a stop order suspending the offer and sale of a federal covered security in New Mexico.  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 director.

History: Laws 2009, ch. 82, § 302.

58-13C-303. Securities registration by coordination.  (2009) 

A.   A security for which a registration statement has been filed pursuant to the federal Securities Act of 1933 in connection with the same offering may be registered by coordination pursuant to this section. 

B.   A registration statement and accompanying records pursuant to this section must contain or be accompanied by the following records in addition to the information specified in Section 305 [58-13C-305 NMSA 1978] of the New Mexico Uniform Securities Act and a consent to service of process complying with Section 611 [58-13C-611 NMSA 1978] of that act:

(1)   a copy of the latest form of prospectus filed pursuant to the federal 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 pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978];

(3)   copies of any other information or any other records filed by the issuer pursuant to the federal Securities Act of 1933 requested by the director; and

(4)   an undertaking to forward each amendment to the federal prospectus, other than an amendment that delays the effective date of the registration statement, promptly after it is filed with the securities and exchange commission.

C.   A registration statement pursuant to this section becomes effective simultaneously with or subsequent to the federal registration statement when all of the following conditions are satisfied:

(1)   a stop order pursuant to Subsection D of this section or Section 306 [58-13C-306 NMSA 1978] of the New Mexico Uniform Securities Act or issued by the securities and exchange commission is not in effect and a proceeding is not pending against the issuer pursuant to Section 306 of the New Mexico Uniform Securities Act; and

(2)   the registration statement has been on file for at least twenty days or a shorter period provided by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act.

D.   The registrant shall promptly notify the director in a record of the date when the federal registration statement becomes effective and of the content of any price amendment and shall promptly file a record containing the price amendment.  If the notice is not timely received, the director 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 director 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 director, the registration statement is automatically effective pursuant to the New Mexico Uniform Securities Act when all the conditions are satisfied or waived.  If the registrant notifies the director of the date when the federal registration statement is expected to become effective, the director 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 director intends the institution of a proceeding pursuant to Section 306 of the New Mexico Uniform Securities Act.  The notice by the director does not preclude the institution of such a proceeding.

History: Laws 2009, ch. 82, § 303.

58-13C-304. Securities registration by qualification.  (2009) 

A.   A security may be registered by qualification pursuant to this section.

B.   A registration statement pursuant to this section shall contain the information or records specified in Section 305 [58-13C-305 NMSA 1978] of the New Mexico Uniform Securities Act, a consent to service of process complying with Section 611 [58-13C-611 NMSA 1978] of that act and, if required by rule adopted pursuant to that act, the following information or records:

(1)   with respect to the issuer and any significant subsidiary, its name, address and form of organization; the state or foreign jurisdiction and date of its organization; the general character and location of its business; a description of its physical properties and equipment; and a statement of the general competitive conditions in the industry or business in which it is or will be engaged;

(2)   with respect to each director and officer of the issuer, and other person having a similar status or performing similar functions, the person's name, address and principal occupation for the previous five years; the amount of securities of the issuer held by the person as of the thirtieth day before the filing of the registration statement; the amount of the securities covered by the registration statement to which the person has indicated an intention to subscribe; and a description of any material interest of the person in any material transaction with the issuer or a significant subsidiary effected within the previous three years or proposed to be effected;

(3)   with respect to persons covered by Paragraph (2) of this subsection, the aggregate sum of the remuneration paid to those persons during the previous twelve months and estimated to be paid during the next twelve 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 or more of the outstanding shares of any class of equity security of the issuer, the information specified in Paragraph (2) of this subsection other than the person's occupation;

(5)   with respect to a promoter, if the issuer was organized within the previous three years, the information or records specified in Paragraph (2) of this subsection, any amount paid to the promoter within that period or intended to be paid to the promoter and the consideration for the payment;

(6)   with respect to a person on whose behalf any part of the offering is to be made in a nonissuer distribution, the person's name and address; the amount of securities of the issuer held by the person as of the date of the filing of the registration statement; a description of any material interest of the person in any material transaction with the issuer or any significant subsidiary effected within the previous three years or proposed to be effected; and a statement of the reasons for making the offering;

(7)   the capitalization and long-term debt, on both a current and pro forma basis, of the issuer and any significant subsidiary, including a description of each security outstanding or being registered or otherwise offered, and a statement of the amount and kind of consideration, whether in the form of cash, physical assets, services, patents, goodwill or anything else of value, for which the issuer or any subsidiary has issued its securities within the previous two years or is obligated to issue its securities;

(8)   the kind and amount of securities to be offered; the proposed offering price or the method by which it is to be computed; any variation at which a proportion of the offering is to be made to a person or class of persons other than the underwriters, with a specification of the person or class; the basis on which the offering is to be made if otherwise than for cash; the estimated aggregate underwriting and selling discounts or commissions and finder's 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 pursuant to 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 Paragraph (2), (4), (5), (6) or (8) of this subsection and by any person that holds or will hold ten percent or more in the aggregate of those options;

(11)   the dates of, parties to and general effect concisely stated of each managerial or other material contract made or to be made otherwise than in the ordinary course of business to be performed in whole or in part at or after the filing of the registration statement or that was made within the previous two years, and a copy of the contract;

(12)   a description of any pending litigation, action or proceeding to which the issuer is a party and that materially affects its business or assets and any litigation, action or proceeding known to be contemplated by governmental authorities;

(13)   a copy of any prospectus, pamphlet, circular, form letter, advertisement or other sales literature intended as of the effective date to be used in connection with the offering and any solicitation of interest used in compliance with Paragraph (2) of Subsection Q of Section 202 [58-13C-202 NMSA 1978] of the New Mexico Uniform Securities Act;

(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, that 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 months before the filing of the registration statement; a statement of income and a statement of cash flow for each of the three fiscal years preceding the date of the balance sheet and for any period between the close of the immediately previous fiscal year and the date of the balance sheet, or for the period of the issuer's and any predecessor's existence if less than three years; and, if any part of the proceeds of the offering is to be applied to the purchase of a business, the financial statements that would be required if that business were the registrant; and

(18)   any additional information or records required by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act.

C.   A registration statement pursuant to this section becomes effective thirty days, or any shorter period provided by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act, 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 pursuant to Section 306 [58-13C-306 NMSA 1978] of the New Mexico Uniform Securities Act;

(2)   the director has not issued an order pursuant to Section 306 of the New Mexico Uniform Securities Act delaying effectiveness; or

(3)   the applicant or registrant has not requested that effectiveness be delayed.

D.   The director may delay effectiveness once for not more than ninety days if the director determines the registration statement is not complete in all material respects and promptly notifies the applicant or registrant of that determination.  The director may also delay effectiveness for a further period of not more than thirty days if the director determines that the delay is necessary or appropriate.

E.   A rule adopted or order issued pursuant to the New Mexico Uniform Securities Act may require as a condition of registration pursuant to this section that a prospectus containing a specified part of the information or record specified in Subsection B of this section be sent or given to each person to which an offer is made, before or concurrently, with the earliest of:

(1)   the first offer made in a record to the person otherwise than by means of a public advertisement, by or for the account of the issuer or another person on whose behalf the offering is being made or by an underwriter or broker-dealer that is offering part of an unsold allotment or subscription taken by the person as a participant in the distribution;

(2)   the confirmation of a sale made by or for the account of the person; 

(3)   payment pursuant to such a sale; or

(4)   delivery of the security pursuant to such a sale.

History: Laws 2009, ch. 82, § 304.

58-13C-305. Securities registration filings.  (2009) 

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 pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978].

B.   A person filing a registration statement shall pay a filing fee of one-tenth of one percent of the maximum aggregate offering price at which the registered securities are to be offered in New Mexico, but not less than five hundred twenty-five dollars ($525) nor more than two thousand five hundred dollars ($2,500) or five hundred twenty-five dollars ($525) if the person is an issuer or a person acting on behalf of an issuer and is claiming an exemption from the registration requirements of federal law regarding small company offerings under Rule 504 of Regulation D (17 C.F.R. 230.504).  If a registration statement is withdrawn before the effective date or a preeffective stop order is issued pursuant to Section 306 [58-13C-306 NMSA 1978] of the New Mexico Uniform Securities Act, the director shall retain the fee set forth in this subsection.

C.   A registration statement filed pursuant to Section 303 [58-13C-303 NMSA 1978] or 304 [58-13C-304 NMSA 1978] of the New Mexico Uniform Securities Act shall specify:

(1)   the amount of securities to be offered in New Mexico; 

(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 pursuant to the New Mexico Uniform Securities Act or the predecessor act within five 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 pursuant to Subsection I of this section or Section 304 of the New Mexico Uniform Securities Act, 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 pursuant to the New Mexico Uniform Securities Act may require as a condition of registration that a security issued within the previous five 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 New Mexico be impounded until the issuer receives a specified amount from the sale of the security either in New Mexico or elsewhere.  The conditions of any escrow or impoundment required pursuant to this subsection may be established by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act, but the director shall not reject a depository institution solely because of its location in another state. 

G.   A rule adopted or order issued pursuant to the New Mexico Uniform Securities Act may require as a condition of registration that a security registered pursuant to that act be sold only on a specified form of subscription or sale contract and that a signed or conformed copy of each contract be filed pursuant to that act or preserved for a period specified by the rule or order, which shall not be longer than five years.

H.   Except while a stop order is in effect pursuant to Section 306 of the New Mexico Uniform Securities Act, a registration statement is effective for one year after its effective date, or for any longer period designated in an order pursuant to that act 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 pursuant to the New Mexico Uniform Securities Act are considered to be registered while the registration statement is effective.  If any securities of the same class are outstanding, a registration statement shall not be withdrawn until one year after its effective date.  A registration statement may be withdrawn only with the approval of the director.

I.   While a registration statement is effective, a rule adopted or order issued pursuant to the New Mexico Uniform Securities Act 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 director 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 an additional registration fee of three times the fee otherwise payable, calculated in the manner specified in Subsection B of this section, with respect to the additional securities to be offered and sold, unless the maximum filing fee has been paid.  If the maximum filing fee was paid at the time of filing the original registration statement, no additional filing fee is required to be paid with the amendment.  A posteffective amendment relates back to the date of the offering of the additional securities being registered if, within one year after the date of the sale, the amendment is filed and the additional registration fee is paid.

History: Laws 2009, ch. 82, § 305.

58-13C-306. Denial, suspension and revocation of securities registration.  (2009) 

A.   The director may issue a stop order denying effectiveness to, or suspending or revoking the effectiveness of, a registration statement if the director 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 pursuant to Subsection J of Section 305 [58-13C-305 NMSA 1978] of the New Mexico Uniform Securities Act as of its effective date or a report pursuant to Subsection I of Section 305 of that act, 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)   the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act or a condition imposed pursuant to that act 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; or 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 of competent jurisdiction or an administrative stop order or similar order issued pursuant to any federal, foreign or state law other than the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] applicable to the offering, but the director shall not institute a proceeding against an effective registration statement pursuant to this paragraph more than one year after the date of the order or injunction on which it is based, and the director shall not issue an order pursuant to this paragraph on the basis of an order or injunction issued pursuant to 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 pursuant to 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 pursuant to Section 303 [58-13C-303 NMSA 1978] of the New Mexico Uniform Securities Act, there has been a failure to comply with the undertaking required by Paragraph (4) of Subsection B of Section 303 of that act;

(6)   the applicant or registrant has not paid the filing fee, but the director 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;

(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; or

(c)   is being made on terms that are unfair, unjust or inequitable.

B.   To the extent practicable, the director by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act shall publish standards that provide notice of conduct that violates Paragraph (7) of Subsection A of this section.

C.   The director shall not institute a stop order proceeding against an effective registration statement on the basis of conduct or a transaction known to the director when the registration statement became effective unless the proceeding is instituted within thirty days after the registration statement became effective.

D.   The director 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 director shall promptly notify each person specified in Subsection E of this section that the order has been issued, the reasons for the revocation, denial, postponement or suspension and that within fifteen 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 director within thirty days after the date of service of the order, the order becomes final.  If a hearing is requested or ordered, the director, 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.   If a hearing is requested or ordered, such hearing shall be conducted pursuant to Subsection B of Section 604 [58-13C-604 NMSA 1978] of the New Mexico Uniform Securities Act.  A stop order shall not be issued pursuant to this section, except in accordance with Subsection D of 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)   opportunity for hearing; and

(3)   findings of fact and conclusions of law in a record.

F.   The director shall modify or vacate a stop order entered pursuant to this section if the director finds that the conditions that prompted entry have changed or that it is otherwise in the public interest or for the protection of investors.

History: Laws 2009, ch. 82, § 306.

58-13C-307. Waiver and modification.  (2009) 

The director may waive or modify, in whole or in part, any or all of the requirements of Sections 302 [58-13C-302 NMSA 1978] and 303 [58-13C-303 NMSA 1978] of the New Mexico Uniform Securities Act and Subsection B of Section 304 [58-13C-304 NMSA 1978] of that act or the requirement of any information or record in a registration statement or in a periodic report filed pursuant to Subsection I of Section 305 [58-13C-305 NMSA 1978] of that act.

History: Laws 2009, ch. 82, § 307.