Administrative Code

Virginia Administrative Code
2/26/2024

Chapter 45. Federal Covered Securities

21VAC5-45-10. Investment company notice filing requirements.

A. An investment company that is registered or that has filed a registration statement under the Investment Company Act of 1940 (the 1940 Act) shall make a notice filing with the commission prior to the initial offer in this Commonwealth of a security which is a federal covered security under § 18(b)(2) of the Securities Act of 1933 (15 USC § 77 r(b)(2)). Notice filings shall be effective upon receipt or, if requested by the issuer, concurrent with SEC effectiveness. A notice filing for a unit investment trust or a closed-end management company is effective for an indefinite period of time from the date of its effectiveness. With respect to an open-end management company or a face-amount certificate company, as those terms are defined in the 1940 Act, the effectiveness of a notice filing, and any renewal thereof, shall expire at midnight on the annual date of its effectiveness in Virginia. The effectiveness of such notice may be renewed annually for an additional one-year period by filing a renewal notice prior to the expiration date. Requirements for investment company filings are set forth below:

1. An initial notice filing shall contain the following:

a. A copy of each document which is part of a current federal registration statement as filed with the SEC or a Form NF.

b. An executed consent to service of process (Form U-2) appointing the Clerk of the Commission, unless a currently effective consent to service of process is on file with the commission.

c. A fee payable to the Treasurer of Virginia in the amount of 1/20 of 1.0% of the maximum aggregate offering price of the securities to be offered in this Commonwealth; provided that the fee shall not be less than $200 nor more than $700, except that in the case of a unit investment trust, as that term is defined in the 1940 Act, the fee shall not be less than $400 nor more than $1000.

2. A renewal notice filing of an open-end management company or face-amount certificate company shall contain the following:

a. A copy of each document which is part of a current federal registration statement as filed with the SEC or a Form NF.

b. An executed consent to service of process (Form U-2) appointing the Clerk of the Commission, unless a currently effective consent to service of process is on file with the Commission.

c. A fee of $300 payable to the Treasurer of Virginia.

3. An amendment filing of an investment company shall contain a copy of the amended documents filed with the SEC or a revised Form NF. No fee is required for an amendment. "Amendment filing" means an administrative change, an amendment to a portfolio name, termination of portfolio effectiveness, or a change to a share class. The addition of a portfolio requires an initial notice filing.

4. A notice filing may be terminated by providing notice to the commission of such termination. The termination is effective upon receipt by the commission of the notice of termination or at a later date specified in the notice.

B. An investment company that is registered under the 1940 Act or that has filed a registration statement under the 1933 Act shall file, upon written request of the commission and within the time period set forth in the request, a copy of any document identified in the request that is part of the federal registration statement filed with the SEC or part of an amendment to such federal registration statement.

Statutory Authority

§§ 12.1-13 and 13.1-523.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 23, eff. July 1, 2003.

21VAC5-45-20. Offerings conducted pursuant to Rule 506 of federal Regulation D (17 CFR 230.506): filing requirements and issuer-agent exemption.

A. An issuer offering a security that is a covered security under § 18 (b)(4)(D) of the Securities Act of 1933 (15 USC § 77r(b)(4)(D)) shall file with the commission no later than 15 days after the first sale of such federal covered security in this Commonwealth:

1. A notice on SEC Form D (17 CFR 239.500), as filed with the SEC.

2. A filing fee of $250 payable to the Treasurer of Virginia.

B. An amendment filing shall contain a copy of the amended SEC Form D. No fee is required for an amendment.

C. For the purpose of this chapter, SEC "Form D" is the document, as adopted by the SEC entitled "Form D, Notice of Exempt Offering of Securities."

D. Pursuant to § 13.1-514 B 13 of the Act, an agent of an issuer who effects transactions in a security exempt from registration under the Securities Act of 1933 pursuant to rules and regulations promulgated under § 4(2) thereof (15 USC § 77d(2)) is exempt from the agent registration requirements of the Act.

Statutory Authority

§§ 12.1-13 and 13.1-523 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 23, eff. July 1, 2003; amended, Virginia Register Volume 25, Issue 22, eff. July 1, 2009; Volume 29, Issue 20, eff. June 3, 2013; Volume 31, Issue 25, eff. July 31, 2015; Volume 36, Issue 2, eff. September 16, 2019.

21VAC5-45-30. Federal Regulation A Tier 2 offerings.

A. An issuer planning to offer and sell securities in this Commonwealth in an offering exempt under Tier 2 of federal Regulation A (17 CFR 230.251 through 17 CFR 230.263) and § 18(b)(3) or 18(b)(4) of the Securities Act of 1933 (15 USC § 77a) shall submit the following at least 21 calendar days prior to the initial sale in this Commonwealth:

1. A completed Regulation A – Tier 2 notice filing form or copies of all documents filed with the U.S. Securities and Exchange Commission;

2. A consent to service of process on Form U-2 if not filing on the Regulation A – Tier 2 notice filing form; and

3. A filing fee of $500 payable the Treasurer of Virginia.

B. The initial notice filing is effective for 12 months from the date of the filing with this Commonwealth. For each additional 12-month period in which the same offering is continued, an issuer conducting a Tier 2 offering under federal Regulation A may renew its notice filing by filing the following on or before the expiration of the notice filing:

1. The Regulation A – Tier 2 notice filing form marked "renewal" or a cover letter or other document requesting renewal; and

2. A renewal fee in the amount of $250 payable to the Treasurer of Virginia.

C. An issuer may increase the amount of securities offered in this Commonwealth by submitting a Regulation A – Tier 2 notice filing form marked "amendment" or other document describing the transaction.

Statutory Authority

§§ 12.1-13 and 13.1-523 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 33, Issue 12, eff. February 1, 2017.

21VAC5-45-40. Federal crowdfunding offerings.

A. An issuer that offers and sells securities in the Commonwealth in an offering exempt under federal Regulation Crowdfunding (17 CFR 227.100 through 17 CFR 227.503) and §§ 4(a)(6) and 18(b)(4)(c) of the Securities Act of 1933 (15 USC § 77a), and that either (i) has its principal place of business in the Commonwealth or (ii) sells 50% or greater of the aggregate amount of the offering to residents of the Commonwealth, shall file the following with the commission:

1. A completed Uniform Notice of Federal Crowdfunding Offering form or copies of all documents filed with the Securities and Exchange Commission (SEC); and

2. A consent to service of process on Form U-2 if not filing on the Uniform Notice of Federal Crowdfunding form.

B. If the issuer has its principal place of business in the Commonwealth, the filing required under subsection A of this section shall be filed with the commission when the issuer makes its initial Form C filing concerning the offering with the SEC. If the issuer does not have its principal place of business in the Commonwealth but residents of the Commonwealth have purchased 50% or greater of the aggregate amount of the offering, the filing required under subsection A of this section shall be filed when the issuer becomes aware that such purchases have met this threshold and in no event later than 30 days from the date of completion of the offering.

C. The initial notice filing is effective for 12 months from the date of the filing with the commission.

D. For each additional 12-month period in which the same offering is continued, an issuer conducting an offering under federal Regulation Crowdfunding may renew its notice filing by filing on or before the expiration of the notice filing a completed Uniform Notice of Federal Crowdfunding Offering form marked "renewal" or a cover letter or other document requesting renewal.

E. An issuer may increase the amount of securities offered in the Commonwealth by submitting a completed Uniform Notice of Federal Crowdfunding Offering form marked "amendment" or other document describing the transaction.

Statutory Authority

Statutory Authority §§ 12.1-13 and 13.1-523 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 34, Issue 9, eff. December 1, 2017.

FORMS (21VAC5-45).

Form D, Notice of Exempt Offering of Securities, U.S. Securities and Exchange Commission, SEC1972 (rev. 5/2017)

Uniform Consent to Service of Process, Form U-2 (rev. 7/2017)

Uniform Notice of Regulation A - Tier 2 Offering (undated, filed 10/2016)

Form NF - Uniform Investment Company Notice Filing (4/1997)

Uniform Notice of Federal Crowdfunding Offering, Form U-CF (undated, filed 9/2017)

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