002-6 Wyo. Code R. §§ 6-1 - Exemptions
The following rules correspond with provisions of W.S. § 17-4-201 and 202 for further clarification of securities and transactions exempt from registration.
(a) Isolated non-issuer transaction as used
in W.S. §
17-4-202(a)(i) shall mean a
single transaction involving one buyer and one seller.
(b) Mergent or Fitch securities manuals, and
the OTCQX and OTCQB markets containing information specified by the statutory
exemption are designated as "nationally recognized securities manuals" for the
purpose of claiming exemption under W.S. §
17-4-202(a)(ii)(D).
(c) The wording of W.S. §
17-4-202(a)(xv) does not
restrict existing security holders only to persons who are holders of
convertible securities, options or warrants.
(d) Offers, but not sales, of securities made
pursuant to W.S. §
17-4-202(a)(xvii) pursuant
to Chapter 7, Section
3 of these rules:
(i) If made pursuant to the following
conditions:
(A) Ten (10) business days prior
to the initial solicitation of interest under this rule, the offeror files with
the Secretary of State a "Solicitation of Interest Form" along with any other
materials to be used to conduct solicitations of interest, including, but not
limited to, the script of any broadcast to be made, a copy of any video
materials intended for broadcast and a copy of any notice to be published. The
Solicitation of Interest Form may be obtained from the Secretary of State's
website at http://sos.wyo.gov.
(B) Five (5) business days prior to usage,
the offeror files with the Secretary of State any amendments to the foregoing
materials or additional materials to be used to conduct solicitations of
interest, except for materials provided to a particular offeree pursuant to a
request by that offeree.
(C)
Solicitation of Interest Forms, advertisements and other solicitation materials
shall not be distributed unless approved by the Secretary of State.
(D) Except for scripted broadcasts and
published notices, the offeror supplies the offeree with the most current
Solicitation of Interest Form at or before the time of the communication or
within five (5) days of the initial communication.
(E) During the solicitation of interest
period, the offeror does not solicit or accept money or a commitment to
purchase securities.
(F) No sale is
made until the offeree has received and had an opportunity to read a currently
effective prospectus. No sale may occur based upon the delivery of a
preliminary prospectus until a final prospectus is received.
(G) No exemption shall be available to any
person who, directly or indirectly, as part of this exempt transaction:
(I) Has filed a registration statement which
is currently the subject of an effective registration stop order entered
pursuant to any state's securities laws within five years prior to the filing
of the notice required under this exemption;
(II) Has, within five (5) years prior to the
filing of the notice required under this exemption, been convicted of any
felony or misdemeanor in connection with the offer, purchase or sale of any
security or of any felony involving fraud or deceit, including but not limited
to forgery, embezzlement, obtaining money under false pretenses, larceny,
conspiracy to defraud, money laundering, or tax evasion;
(III) Is currently subject to any state or
province of Canada administrative enforcement order or judgment entered by that
state or province's securities administrator within five years prior to the
filing of the notice required under this exemption, or is subject to any state
or provincial administrative enforcement order or judgment in which fraud or
deceit, including but not limited to making untrue statements or material facts
and omitting to state material facts;
(IV) Is subject to any state or province of
Canada administrative enforcement order or judgment which prohibits, denies or
revokes the use of any exemption from registration in connection with the
offer, purchase or sale of securities;
(V) Is currently subject to any order,
judgment, or decree of any court of competent jurisdiction that temporarily,
preliminarily, or permanently restrains or enjoins such party from engaging in,
or continuing, any conduct or practice in connection with the purchase or sale
of any security or involving the making of any false filing with the state or
province entered within five years prior to the filing of the notice required
under this exemption;
(VI) The
prohibitions of paragraphs I-III and V above shall not apply if the person
subject to the disqualification is duly licensed or registered to conduct
securities related business in the state or province in which the
administrative order or judgment was entered against such person or if the
broker-dealer employing such party is licensed or registered in this state and
the Form BD filed with this state discloses the order, conviction, judgment or
decree relating to such person. No person disqualified under this subsection
shall act in a capacity other than that for which the person is licensed or
registered;
(VII) Any
disqualification caused by this section is automatically waived if the state or
province's securities administrator or agency of the state or province which
created the basis for disqualification determines upon a showing of good cause
that it is not necessary under the circumstances that the exemption be
denied;
(VIII) It is a defense to
an alleged violation of this subsection if the issuer sustains the burden of
proof to establish that he or she did not know and in the exercise of
reasonable care could not have known that a disqualification under this
subsection existed.
(H)
Any published notice or script for broadcast exempt hereunder shall contain at
least the identity of the chief executive officer of the issuer, a brief and
general description of its business and products, and the following legends:
(I) No Money of other consideration is being
solicited and none will be accepted;
(II) No Sales of the securities shall be made
or commitment to purchase accepted until delivery of an offering circular that
includes complete information about the issuer and the offering is
made;
(III) An indication of
interest made by a prospective investor involves no obligation or commitment of
any kind; and
(IV) No sale may be
made until the offering statement is qualified by the SEC and is registered in
this state.
(ii) All communications with prospective
investors made in reliance on this rule must cease after a registration
statement is filed in this state, and no sale may be made until at least twenty
(20) calendar days after the last communication with a prospective investor
under this exemption.
(iii) A
failure to comply with any condition of section (G) of this rule will not
result in the loss of the exemption from the registration or literature filing
requirements of the Act for any offer to a particular individual or entity if
the offeror shows:
(A) the failure to comply
did not pertain to a material condition intended to protect that particular
individual or entity; and
(B) the
failure to comply was not material with respect to the offering as a whole;
and
(C) a good faith and reasonable
attempt was made to comply with all applicable conditions;
(D) Loss of this exemption for a specified
security or transaction may occur if the issuer fails to comply with the
requirements of subparagraph (ii).
(iv) No waiver of this rule shall be assumed
or confirmed except by written action of the Secretary of State in response to
a written application by the offeror showing good cause for the departure from
this rule.
(v) Offers made in
reliance on this rule will not result in a violation of the registration
provisions of the Act by virtue of being integrated with subsequent offers or
sales of securities unless such subsequent offers and sales would be integrated
under federal securities laws.
(vi)
Issuers on whose behalf indications of interest are solicited under this rule
may not make offers or sales in reliance on W.S. §
17-4-202(a)(xiv) until
twelve (12) months after the last communication with a prospective investor
made under this exemption.
(e) Nothing in these rules requires an
investment company to make any filings with or pay any fees to the Secretary of
State if the investment company may avail itself of exemptions available to
other issuers of securities found in W.S. §
17-4-201 or -202, unless otherwise required
by statute.
Notes
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