MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Business and Financial Institutions
By: Senator(s) Tollison
AN ACT TO AMEND SECTION 75-71-202, MISSISSIPPI CODE OF 1972, TO EXEMPT CERTAIN SMALL SECURITIES OFFERINGS FROM SECURITIES REGISTRATION REQUIREMENTS; TO CREATE NEW SECTION 75-17-202.1, MISSISSIPPI CODE OF 1972, TO CREATE THE INVEST MISSISSIPPI EXEMPTION TO ALLOW EQUITY CROWDFUNDING FOR CERTAIN SMALL SECURITY OFFERINGS; TO REQUIRE CERTAIN DISCLOSURES TO INVESTORS; TO REQUIRE PERIODIC REPORTING TO INVESTORS; TO AUTHORIZE THE SECRETARY OF STATE TO ADOPT RULES TO IMPLEMENT THE PROVISIONS OF THIS ACT AND TO PROTECT INVESTORS WHO PURCHASE SECURITIES UNDER THIS ACT; TO ESTABLISH A FILING FEE TO PAY THE COSTS INCURRED IN ADMINISTERING THE ACT; AND FOR RELATED PURPOSES.
WHEREAS, start-up companies play a critical role in creating new jobs and sources of revenue; and
WHEREAS, crowdfunding, or raising money through small contributions from a large number of investors, allows smaller enterprises in Mississippi to have access to the capital they need to initiate new business ventures; and
WHEREAS, by promoting crowd funding, the Legislature can give new businesses access to additional financing tools, can assist in democratizing start-up capital, and can facilitate investment by Mississippi residents in Mississippi start-ups; and
WHEREAS, by facilitating investment with appropriate restrictions to protect the interests of Mississippi investors, the Legislature can promote the formation and growth of smaller Mississippi enterprises, along with additional job formation, and can permit businesses to raise capital using crowd funding unencumbered by excessive government regulation; NOW, THEREFORE,
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 75-71-202, Mississippi Code of 1972, is amended as follows:
75-71-202. The following transactions are exempt from the requirements of Sections 75-71-301 through 75-71-306 and 75-71-504. The transactions listed below are self-actuating, are not conditioned by rule and require no pre-approval of the administrator, unless otherwise indicated below:
(1) An isolated nonissuer transaction, whether effected by or through a broker-dealer or not;
(2) A nonissuer transaction by or through a broker-dealer registered, or exempt from registration under this chapter, and a resale transaction by a sponsor of a unit investment trust registered under the Investment Company Act of 1940, in a security of a class that has been outstanding in the hands of the public for at least ninety (90) days, if, at the date of the transaction:
(A) The issuer of the security is engaged in business, the issuer is not in the organizational stage or in bankruptcy or receivership, and the issuer is not a blank check, blind pool, or shell company that has no specific business plan or purpose or has indicated that its primary business plan is to engage in a merger or combination of the business with, or an acquisition of, an unidentified person;
(B) The security is sold at a price reasonably related to its current market price;
(C) The security does not constitute the whole or part of an unsold allotment to, or a subscription or participation by, the broker-dealer as an underwriter of the security or a redistribution;
(D) A nationally recognized securities manual or its electronic equivalent designated by rule adopted or order issued under this chapter or a record filed with the Securities and Exchange Commission that is publicly available contains:
(i) A description of the business and operations of the issuer;
(ii) The names of the issuer's executive officers and the names of the issuer's directors, if any;
(iii) An audited balance sheet of the issuer as of a date within eighteen (18) months before the date of the transaction or, in the case of a reorganization or merger when the parties to the reorganization or merger each had an audited balance sheet, a pro forma balance sheet for the combined organization; and
(iv) An audited income statement for each of the issuer's two (2) immediately previous fiscal years or for the period of existence of the issuer, whichever is shorter, or, in the case of a reorganization or merger when each party to the reorganization or merger had audited income statements, a pro forma income statement; and
(E) Any one (1) of the following requirements is met:
(i) The issuer of the security has a class of equity securities listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934 or designated for trading on the National Association of Securities Dealers Automated Quotation System;
(ii) The issuer of the security is a unit investment trust registered under the Investment Company Act of 1940;
(iii) The issuer of the security, including its predecessors, has been engaged in continuous business for at least three (3) years; or
(iv) The issuer of the security has total assets of at least Two Million Dollars ($2,000,000.00) based on an audited balance sheet as of a date within eighteen (18) months before the date of the transaction or, in the case of a reorganization or merger when the parties to the reorganization or merger each had such an audited balance sheet, a pro forma balance sheet for the combined organization;
(3) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter in a security of a foreign issuer that is a margin security defined in regulations or rules adopted by the Board of Governors of the Federal Reserve System;
(4) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter in an outstanding security if the guarantor of the security files reports with the Securities and Exchange Commission under the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 (15 USC 78m or 78o(d));
(5) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter in a security that:
(A) Is rated at the time of the transaction by a nationally recognized statistical rating organization in one (1) of its four (4) highest rating categories; or
(B) Has a fixed maturity or a fixed interest or dividend, if:
(i) A default has not occurred during the current fiscal year or within the three (3) previous fiscal years or during the existence of the issuer and any predecessor if less than three (3) fiscal years, in the payment of principal, interest, or dividends on the security; and
(ii) The issuer is engaged in business, is not in the organizational stage or in bankruptcy or receivership, and is not and has not been within the previous twelve (12) months a blank check, blind pool, or shell company that has no specific business plan or purpose or has indicated that its primary business plan is to engage in a merger or combination of the business with, or an acquisition of, an unidentified person;
(6) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter effecting an unsolicited order or offer to purchase;
(7) A nonissuer transaction executed by a bona fide pledgee without the purpose of evading this chapter;
(8) A nonissuer transaction by a federal covered investment adviser with investments under management in excess of One Hundred Million Dollars ($100,000,000.00) acting in the exercise of discretionary authority in a signed record for the account of others;
(9) The following transaction requires approval of the administrator: a transaction in a security, whether or not the security or transaction is otherwise exempt, in exchange for one or more bona fide outstanding securities, claims, or property interests, or partly in such exchange and partly for cash, if the terms and conditions of the issuance and exchange or the delivery and exchange and the fairness of the terms and conditions have been approved by the administrator after a hearing;
(10) A transaction between the issuer or other person on whose behalf the offering is made and an underwriter, or among underwriters;
(11) A transaction in a note, bond, debenture, or other evidence of indebtedness secured by a mortgage or other security agreement if:
(A) The note, bond, debenture, or other evidence of indebtedness is offered and sold with the mortgage or other security agreement as a unit;
(B) A general solicitation or general advertisement of the transaction is not made; and
(C) A commission or other remuneration is not paid or given, directly or indirectly, to a person not registered under this chapter as a broker-dealer or as an agent;
(12) A transaction by an executor, administrator of an estate, sheriff, marshal, receiver, trustee in bankruptcy, guardian, or conservator;
(13) A sale or offer to sell to:
(A) An institutional investor;
(B) A federal covered investment adviser; or
(C) Any other person exempted by rule adopted or order issued under this chapter;
(14) A sale or offer to sell securities by or on behalf of an issuer, if the transaction is part of a single issue in which:
(A) Not more than ten (10) purchasers are present in this state during any twelve (12) consecutive months, other than those designated in paragraph (13);
(B) A general solicitation or general advertising is not made in connection with the offer to sell or sale of the securities;
(C) A commission or other remuneration is not paid or given, directly or indirectly, to a person other than a broker-dealer registered under this chapter or an agent registered under this chapter for soliciting a prospective purchaser in this state; and
(D) The issuer reasonably believes that all the purchasers in this state, other than those designated in paragraph (13), are purchasing for investment;
(15) A transaction under an offer to existing security holders of the issuer, including persons that at the date of the transaction are holders of convertible securities, options, or warrants, if a commission or other remuneration, other than a standby commission, is not paid or given, directly or indirectly, for soliciting a security holder in this state;
(16) An offer to sell, but not a sale, of a security not exempt from registration under the Securities Act of 1933 if:
(A) A registration or offering statement or similar record as required under the Securities Act of 1933 has been filed, but is not effective, or the offer is made in compliance with Rule 165 adopted under the Securities Act of 1933 (17 CFR 230.165); and
(B) A stop order of which the offeror is aware has not been issued against the offeror by the administrator or the Securities and Exchange Commission, and an audit, inspection, or proceeding that is public and that may culminate in a stop order is not known by the offeror to be pending;
(17) An offer to sell, but not a sale, of a security exempt from registration under the Securities Act of 1933 if:
(A) A registration statement has been filed under this chapter, but is not effective;
(B) A solicitation of interest is provided in a record to offerees in compliance with a rule adopted by the administrator under this chapter; and
(C) A stop order of which the offeror is aware has not been issued by the administrator under this chapter and an audit, inspection, or proceeding that may culminate in a stop order is not known by the offeror to be pending;
(18) A transaction involving the distribution of the securities of an issuer to the security holders of another person in connection with a merger, consolidation, exchange of securities, sale of assets, or other reorganization to which the issuer, or its parent or subsidiary and the other person, or its parent or subsidiary, are parties;
(19) A rescission offer, sale, or purchase under Section 75-71-510;
(20) An offer or sale of a security to a person not a resident of this state and not present in this state if the offer or sale does not constitute a violation of the laws of the state or foreign jurisdiction in which the offeree or purchaser is present and is not part of an unlawful plan or scheme to evade this chapter;
(21) Employees' stock purchase, savings, option, profit-sharing, pension, or similar employees' benefit plan, including any securities, plan interests, and guarantees issued under a compensatory benefit plan or compensation contract, contained in a record, established by the issuer, its parents, its majority-owned subsidiaries, or the majority-owned subsidiaries of the issuer's parent for the participation of their employees including offers or sales of such securities to:
(A) Directors; general partners; trustees, if the issuer is a business trust; officers; consultants; and advisors;
(B) Family members who acquire such securities from those persons through gifts or domestic relations orders;
(C) Former employees, directors, general partners, trustees, if the issuer is a business trust, officers, consultants, and advisors if those individuals were employed by or providing services to the issuer when the securities were offered; and
(D) Insurance agents who are exclusive insurance agents of the issuer, or the issuer's subsidiaries or parents, or who derive more than fifty percent (50%) of their annual income from those organizations;
(22) A transaction involving:
(A) A stock dividend or equivalent equity distribution, whether the corporation or other business organization distributing the dividend or equivalent equity distribution is the issuer or not, if nothing of value is given by stockholders or other equity holders for the dividend or equivalent equity distribution other than the surrender of a right to a cash or property dividend if each stockholder or other equity holder may elect to take the dividend or equivalent equity distribution in cash, property, or stock;
(B) An act incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims, or property interests, or partly in such exchange and partly for cash; or
(C) The
solicitation of tenders of securities by an offeror in a tender offer in
compliance with Rule 162 adopted under the Securities Act of 1933 (17 CFR
230.162); * * *
(23) A nonissuer
transaction in an outstanding security by or through a broker-dealer registered
or exempt from registration under this chapter, if the issuer is a reporting
issuer in a foreign jurisdiction designated by this paragraph or by rule
adopted or order issued under this chapter; has been subject to continuous
reporting requirements in the foreign jurisdiction for not less than one
hundred eighty (180) days before the transaction; and the security is listed on
the foreign jurisdiction's securities exchange that has been designated by this
paragraph or by rule adopted or order issued under this chapter, or is a
security of the same issuer that is of senior or substantially equal rank to
the listed security or is a warrant or right to purchase or subscribe to any of
the foregoing. For purposes of this paragraph, Canada, together with its
provinces and territories, is a designated foreign jurisdiction and The Toronto
Stock Exchange, Inc., is a designated securities exchange. After an
administrative hearing in compliance with Section 75-71-604, the administrator,
by rule adopted or order issued under this chapter, may revoke the designation
of a securities exchange under this paragraph, if the administrator finds that
revocation is necessary or appropriate in the public interest and for the
protection of investors * * *.; or
(24) Any offer or sale of a security by an issuer if the offer or sale is conducted in accordance with Section 75-71-202.1.
SECTION 2. The following shall be codified as Section 75-17-202.1, Mississippi Code of 1972:
75-17-202.1. Invest Mississippi exemption. (a) Exemption. Except as otherwise provided in this chapter, an offer or sale of a security by an issuer is exempt from Section 75-71-301 if the offer or sale is conducted in accordance with each of the following requirements:
(1) The issuer of the security is a business entity formed under the laws of the state and registered with the Secretary of State.
(2) The transaction meets the requirements of the federal exemption for intrastate offerings in Section 3(a)(11) of the Securities Act of 1933, 15 USC Section 77c(a)(11), and SEC rule 147, 17 CFR Section 230.147.
(3) The sum of all cash and other consideration to be received for all sales of the security in reliance upon this exemption does not exceed the cap provided in this subsection.
(A) One Million Dollars ($1,000,000.00), less the aggregate amount received for all sales of securities by the issuer within the twelve (12) months before the first offer or sale made in reliance upon this exemption, if the issuer has not undergone and provided the documentation resulting from a financial audit performed the previous year and meeting generally accepted accounting principles.
(B) Two Million Dollars ($2,000,000.00), less the aggregate amount received for all sales of securities by the issuer within the twelve (12) months before the first offer or sale made in reliance upon this exemption, if the issuer has undergone and provided the documentation resulting from a financial audit performed the previous year and meeting generally accepted accounting principles.
(4) The issuer has not accepted more than Two Thousand Dollars ($2,000.00) from any single purchaser unless the purchaser is an accredited investor as defined by Rule 501 of SEC regulation D, 17 CFR Section 230.501.
(5) Not less than ten (10) days prior to the commencement of an offering of securities in reliance on this exemption, the issuer shall file a notice with the administrator, in writing or in electronic form as specified by the administrator, containing the following:
(A) A notice specifying that the issuer will be conducting an offering in reliance upon this exemption, accompanied by the filing fee as specified in this section.
(B) A copy of the disclosure statement to be provided to investors in connection with the offering, containing information material to the offering, including the following subjects:
(i) A description of the company, its history, its business plan, and the intended use of the offering proceeds.
(ii) The principal owners of the company.
(iii) The managers of the company, their titles, and their prior experience.
(iv) The terms and conditions of the securities being offered and of any outstanding securities of the company.
(v) The identity of any person who will be offering and selling the securities, including any websites.
(vi) Any litigation or legal proceedings involving the company or its management.
(vii) The risk factors and any other material information, either adverse or favorable, that will or could affect the company or its business, or any material information which would tend to make any representations about the company or investment misleading or incomplete.
(C) An escrow agreement with a bank or other depository institution located within this state in which the investor funds will be deposited, providing that all offering proceeds will be released to the issuer only when the aggregate capital raised from all investors is equal to or greater than the minimum target offering amount specified in the business plan as necessary to implement the business plan, and that all investors may cancel their commitments to invest if that target offering amount is not raised by the time stated in the disclosure document.
(6) The issuer is not, either before or as a result of the offering, an investment company, as defined in Section 3 of the Investment Company Act of 1940, 15 USC Section 8a-3, or subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, 15 USC Section 78m and 78o(d).
(7) The issuer shall inform all purchasers under this section that the securities have not been registered under federal or state securities law and that the securities are subject to limitations on resale. The issuer shall display the following legend conspicuously on the cover page of the disclosure document:
"IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED BY SUBSECTION (E) OF SEC RULE 147, 17 CFR SECTION 230.147(E) AS PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME."
(8) If the offer and sale of securities is made through an Internet website, the following requirements apply:
(A) Prior to the offer of an investment opportunity to residents of this state through a website, the issuer shall provide to the website and to the administrator evidence that the issuer is organized under Mississippi law and that it is authorized to do business within the state.
(B) The issuer shall obtain from each purchaser of a security under this section evidence that the purchaser is a resident of Mississippi and, if applicable, an accredited investor.
(C) The website operator shall provide to the administrator evidence that it is a business entity that is organized under Mississippi law and that it is authorized to do business within the state and that it is being utilized to offer and sell securities pursuant to this exemption. The website shall notify the administrator of its and the issuer's identity, location and contact information.
(D) The issuer and the website must keep and maintain records of the offers and sales of securities effected through the website and must provide ready access to the records to the administrator, upon request. The administrator may access, inspect, and review any website and its records.
(E) All payments for purchase of securities must be directed to and held by the bank or depository institution subject to the provisions of subsection (a)(5)(C) of this section. The bank or depository institution shall notify the administrator of the receipt of payments for securities and the identity and residence of the investors. The information shall be confidential and considered trade secrets within the scope of Section 75-71-607 while in the possession of the administrator.
(9) The website shall not be subject to the registration provisions of Sections 75-71-401, 75-71-402, 75-71-403, 75-71-404, 75-71-405 and 75-71-406, provided that all of the following apply:
(A) It does not offer investment advice or recommendations.
(B) It does not solicit purchases, sales, or offers to buy the securities offered or displayed on the website.
(C) It does not compensate employees, agents, or other persons for the solicitation or based on the sale of securities displayed or referenced on the website.
(D) It does not hold, manage, possess, or otherwise handle investor funds or securities.
(E) It does not engage in such other activities as the administrator, by rule, determines appropriate.
(10) An executive officer, director, managing member, or person occupying a similar status or performing similar functions in the name of and on behalf of the issuer shall be exempt from the registration provisions of Sections 75-71-401, 75-71-402, 75-71-403, 75-71-404, 75-71-405 and 75-71-406, provided that the person does not receive, directly or indirectly, any commission or remuneration for offering and selling securities of the issuer pursuant to this exemption.
(b) Indexing. The caps provided in subsection (a)(3) of this section shall be cumulatively adjusted for inflation every fifth year.
(c) Report. An issuer of a security, the offer and sale of which is exempt under this section, shall provide a quarterly report to the issuer's investors until no securities issued under this section are outstanding. The report required by this subsection shall be free of charge. An issuer may satisfy the reporting requirement of this subsection by making the information available on an Internet website address if the information is made available within forty-five (45) days of the end of each fiscal quarter and remains available until the succeeding quarterly report is issued. An issuer must provide a written copy of the report to any investor upon request. The report must contain each of the following:
(1) Compensation received by each director and executive officer, including cash compensation earned since the previous report and on an annual basis and any bonuses, stock options, other rights to receive securities of the issuer or any affiliate of the issuer, or other compensation received.
(2) An analysis by management of the issuer of the business operations and financial condition of the issuer. The issuer shall file each such quarterly report with the administrator.
(d) Offers and sales to controlling persons. The exemption provided in this section shall not be used in conjunction with any other exemption under this chapter, except for offers and sales to controlling persons shall not count toward the limitation in paragraph (3) of subsection (a) of this section. A controlling person is an officer, director, partner, trustee, or individual occupying similar status or performing similar functions with respect to the issuer or to a person owning ten percent (10%) or more of the outstanding shares of any class or classes of securities of the issuer.
(e) Disqualification. The exemption allowed by this section shall not apply if an issuer or person affiliated with the issuer or offering is subject to any disqualification contained in Rule 262 as promulgated under the Securities Act of 1933 (17 CFR Section 230.262). The provisions of this subsection shall not apply if (1) upon a showing of good cause and without prejudice to any other action by the administrator, the administrator determines that it is not necessary under the circumstances that an exemption be denied; and (2) the issuer establishes that it made factual inquiry into whether any disqualification existed under this subsection but did not know, and in the exercise of reasonable care could not have known, that a disqualification existed under this subsection. The nature and scope of the requisite inquiry will vary based on the circumstances of the issuer and the other offering participants.
(f) Rules. The administrator may adopt rules to implement the provisions of this section and to protect investors who purchase securities under this section.
(g) Fee. The administrator shall charge a nonrefundable filing fee of One Hundred Fifty Dollars ($150.00) for filing an exemption notice required by subsection (a) of this section. The fees paid to the administrator pursuant to this subsection shall be used to pay the costs incurred in administering and enforcing this chapter. The revenue derived from the fee shall be credited to a nonreverting agency revenue account.
SECTION 4. This act shall take effect and be in force from and after July 1, 2014.