2006 Code of Virginia § 13.1-510 - Registration by qualification

13.1-510. Registration by qualification.

(a) Any security may be registered by qualification.

(b) A registration statement under this section shall contain that part ofthe following information as required by the Commission:

(1) With respect to the issuer and any significant subsidiary: its name,address and form of organization; the state (or foreign jurisdiction) anddate of its organization; the general character of its business; and adescription of its physical properties and equipment; and a statement of thegeneral competitive conditions in the industry or business in which it is orwill be engaged;

(2) With respect to every director and officer of the issuer (or personoccupying a similar status or performing similar functions): his name,address and principal occupation for the past five years; the amount ofsecurities of the issuer held by him as of a specified date within ninetydays of the filing of the registration statement; the amount of thesecurities covered by the registration statement to which he has indicatedhis intention to subscribe; and a description of any material interest in anymaterial transaction with the issuer or any significant subsidiary effectedwithin the past three years or proposed to be effected;

(3) With respect to persons covered by subdivision (2) of this subsection:the remuneration paid during the past twelve months and estimated to be paidduring the ensuing twelve months, directly or indirectly, by the issuer(together with all predecessors, parents, subsidiaries and affiliates) to allsuch persons in the aggregate;

(4) With respect to any person owning of record, or beneficially if known,ten percent or more of the outstanding shares of any class of equity securityof the issuer: the information specified in subdivision (2) of thissubsection other than his occupation;

(5) With respect to every promoter if the issuer was organized within thepast three years: the information specified in subdivision (2) of thissubsection, any amount paid to him within such period or intended to be paidto him and the consideration for any such payment;

(6) With respect to any person other than the issuer on whose behalf any partof the offering is to be made: his name and address; the amount of securitiesof the issuer held by him as of the date of the filing of the registrationstatement; a description of any material interest in any material transactionwith the issuer or any subsidiary effected within the past three years orproposed to be effected; and a statement of his reasons for making theoffering;

(7) The capitalization and long term debt (on both a current and a pro formabasis) of the issuer and any subsidiary, including (i) a description of eachclass of security outstanding or being registered or otherwise offered, and(ii) a statement of the amount and kind of consideration (whether in the formof cash, physical assets, services, patents, goodwill or anything else) forwhich the issuer or any such subsidiary has issued any of its securitieswithin the past two years or is obligated to issue any of its securities;

(8) The kind and amount of securities to be offered; the proposed offeringprice or the method by which it is to be computed; any variation therefrom atwhich any portion of the offering is to be made to any person or class ofpersons other than the underwriters, with a specification of any such personor class; the basis upon which the offering is to be made if otherwise thancash; the estimated aggregate underwriting and selling discounts orcommissions and finder's fees (including separately cash, securities,contracts or anything else of value to accrue to the underwriters inconnection with the offering) or, if such discounts or commissions arevariable, the basis of determining them and their maximum and minimumamounts; the estimated amounts of other selling expenses, including legal,engineering and accounting charges; the name and address of every underwriterand every recipient of a finders' fee; a copy of any underwriting orselling-group agreement pursuant to which the distribution is to be made, orthe proposed form of any such agreement whose terms have not yet beendetermined; and a description of the plan of distribution of any securitieswhich are to be offered otherwise than through an underwriter;

(9) The estimated cash proceeds to be received by the issuer from theoffering; the purposes for which such proceeds are to be used by the issuer;the amount to be used for each purpose; the order of priority in which theproceeds will be used for the purposes stated; the amounts of any funds to beraised from other sources to achieve such purposes; the sources of any suchfunds; and, if any part of the proceeds is to be used to acquire any property(including goodwill) otherwise than in the ordinary course of business, thenames and addresses of the vendors, the purchase price, the names of anypersons who have received commissions in connection with such acquisition andthe amounts of such commissions and any other expense in connection with suchacquisition (including the cost of borrowing money to finance suchacquisition);

(10) A description of any stock options (or other security options)outstanding, or to be created in connection with the offering, together withthe amount of any such options held or to be held by every person required tobe named in subdivisions (2), (4), (5), (6) or (8) of this subsection and byany person who holds or will hold ten percent or more in the aggregate of anysuch options;

(11) The dates of, parties to and general effect concisely stated of, everymanagement or other material contract made or to be made otherwise than inthe ordinary course of business if it is to be performed in whole or in partat or after the filing of the registration statement or was made within thepast two years, together with a copy of every such contract; and adescription of any pending litigation or proceeding to which the issuer is aparty and which materially affects its business or assets (including any suchlitigation or proceeding known to be contemplated by governmentalauthorities);

(12) A copy of any prospectus, pamphlet, circular, form letter, advertisementor sales literature intended as of the effective date to be used inconnection with the offering;

(13) A specimen of the security being registered; a copy of the issuer'sarticles of incorporation and bylaws (or their substantial equivalents) ascurrently in effect; and a copy of any indenture or other instrument coveringthe security to be registered;

(14) An opinion of counsel as to the legality of the security beingregistered which shall state whether the security when sold will be legallyissued, fully paid and nonassessable, and, if a debt security, a bindingobligation of the issuer;

(15) A balance sheet of the issuer as of a date within four months prior tothe filing of the registration statement; a profit and loss statement andanalysis of surplus for each of the three fiscal years preceding the date ofthe balance sheet and for any period between the close of the last fiscalyear and the date of the balance sheet, or for the period of the issuer's andany predecessor's existence if less than three years; and if any part of theproceeds of the offering is to be applied to the purchase of any business,the same financial statements which would be required if such business werethe registrant;

(16) Such additional information as the Commission may require.

(c) A registration statement shall state the amount of securities to beoffered in this Commonwealth and shall be accompanied by a filing fee ofone-tenth of one percent of the maximum aggregate offering price at which thesecurities are proposed to be offered in this Commonwealth; provided that thefee shall not be less than $250 nor more than $500.

(d) A registration statement under this section shall become effective whenthe Commission so orders.

(e) It shall be unlawful to sell any security registered under this sectionthat constitutes the whole or a part of an unsold allotment or subscriptionby a broker-dealer as a participant in the underwriting of such securitiesexcept upon delivery to the purchaser of a prospectus. The prospectus shallcontain such part of the information specified in subsection (b) as may bedesignated by the Commission as necessary for the protection of investors.

(f) The Commission shall have authority in its discretion to require thatsales be made only pursuant to a subscription contract the form of whichshall have been filed as an exhibit to the registration statement. If theCommission requires a subscription contract, it shall be unlawful to sell anysecurity registered under this section except pursuant to such a subscriptioncontract duly signed by the purchaser, a copy of which shall be delivered tohim.

(g) [Repealed.]

(h) If any prospectus, document or exhibit filed as provided in this sectiondiscloses that any of the securities sought to be registered byqualification, or as much as twenty-five percent of any class of thesecurities of the issuer to be outstanding, were or are intended to be issuedfor any patent right, copyright, trademark, process, formula, goodwill orother intangible assets, or for organization or promotion fees or expenses,the Commission may require that such securities shall be delivered in escrowto some satisfactory depository under an escrow agreement. The owners of suchsecurities shall not be entitled to sell or transfer such securities or towithdraw such securities from escrow until the issuer in any period ofthirty-six consecutive months earns an annual average of six percent of thepublic offering price times all shares of common stock then outstanding plusthose to be outstanding through the exercise of warrants or options ascomputed under normal and customary accounting procedures or upon order ofthe Commission, when no circumstance is apparent which, in the opinion of theCommission, would warrant continuation of the escrow. In case of dissolutionor insolvency during the time such securities are held in escrow, the ownersof such securities shall not participate in the assets until after the ownersof all other securities shall have been paid in full. If any securitiessought to be registered by qualification are to be sold for the account ofthe issuer, and not by underwriters who have or at the time of offering shallhave purchased such securities from the issuer, the Commission may requirethat the proceeds from the sale of such securities be delivered in escrow tosome satisfactory depository until all or a reasonable portion of the totalsecurities originally proposed to be offered and sold shall have been soldand paid for.

For the purposes of this section, such securities shall be deemed to havebeen sold and paid for at such time as the subscribers therefor deliver to,or for the benefit of, the issuer, an amount equal to the purchase pricespecified for such securities either in cash, a draft, check or note (otherthan any such instrument which is drawn without recourse) or any combinationthereof.

(1956, c. 428; 1982, c. 362; 1983, c. 517; 1984, c. 771; 1993, c. 180.)

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