517.061 Exempt transactions.—Except as otherwise provided in subsection (11), the exemptions provided herein from the registration requirements of s. 517.07 are self-executing and do not require any filing with the office before being claimed. Any person who claims entitlement to an exemption under this section bears the burden of proving such entitlement in any proceeding brought under this chapter. The registration provisions of s. 517.07 do not apply to any of the following transactions; however, such transactions are subject to s. 517.301:
(1)(a) Any judicial sale or any sale by an executor, an administrator, a guardian, or a conservator; any sale by a receiver or trustee in insolvency or bankruptcy; any sale by an assignee as defined in s. 727.103, with respect to an assignment as defined in that section; or any transaction incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims, or property interests.
(b) Except for a security exchanged in a case brought under Title 11 of the United States Code, a security issued 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 such issuance and exchange are approved:
1. By a court, an official or agency of the United States, a banking or insurance commission of a state or territory of the United States, or another governmental authority expressly authorized by law to grant such approval.
2. After a hearing upon the fairness of such terms and conditions and at which all persons to whom issuance of securities in such exchange is proposed have the right to appear.
(2) The issuance of notes or bonds in connection with the acquisition of real property or renewals thereof, if such notes or bonds are issued to the sellers of, and are secured by all or part of, the real property so acquired.
(3) A transaction involving a stock dividend or equivalent equity distribution, regardless of whether the business entity distributing the dividend or equivalent equity distribution is the issuer, 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 in the event that each stockholder or other equity holder may elect to take the dividend or equivalent equity distribution in cash, property, or stock.
(4) 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 is not paid or given, directly or indirectly, for soliciting a security holder in this state.
(5) The issuance of securities to such equity security holders or creditors of a business entity in the process of a reorganization of such business entity, made in good faith and not for the purpose of evading this chapter, either in exchange for the securities of such equity security holders or claims of such creditors or partly for cash and partly in exchange for the securities or claims of such equity security holders or creditors.
(6) 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 the issuer’s parent or subsidiary, and the other person, or the person’s parent or subsidiary, are parties.
(7) The offer or sale of securities, solely in connection with the transfer of ownership of an eligible privately held company, through a merger and acquisition broker in accordance with s. 517.12(22).
(8) The offer or sale of securities under a bona fide employee stock purchase, savings, option, profit-sharing, pension, or similar employee 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 the issuer’s employees, directors, managers, managing members, general partners, trustees, officers, consultants, or advisors, and their family members who acquire such securities from such persons through gifts or domestic relations orders. This includes offers or sales of such securities to all of the following persons:
(a) Former employees, directors, managers, managing members, general partners, trustees, officers, consultants, or advisors, provided that the securities are issued to such persons in connection with their prior employment by or services provided to the issuer.
(b) Insurance agents who are exclusive insurance agents of the issuer, or of the issuer’s parents or subsidiaries, or who derive more than 50 percent of their annual income from such persons.
(9) The offer or sale of securities to:
(a) A bank, trust company, savings institution, insurance company, dealer, investment company as defined in the Investment Company Act of 1940, 15 U.S.C. s. 80a-3, as amended, pension or profit-sharing trust, or qualified institutional buyer, whether any of such entities is acting in its individual or fiduciary capacity.
(b) A savings and loan association, building and loan association, cooperative bank, or credit union, which is supervised and examined by a state or federal authority having supervision over any such institution.
(c) A federal covered adviser; investment adviser registered pursuant to the laws of a state; exempt reporting adviser or private fund adviser as those terms are defined in s. 517.12(23)(a)2. and 3., respectively; investment adviser relying on the exemption from registering with the Securities and Exchange Commission under s. 203(l) or (m) of the Investment Advisers Act of 1940, as amended; business development company as defined in s. 2(a)(48) of the Investment Company Act of 1940, as amended; or business development company as defined in s. 202(a)(22) of the Investment Advisers Act of 1940, as amended.
(d) A small business investment company licensed by the Small Business Administration under s. 301(c) of the Small Business Investment Act of 1958, as amended, or rural business investment company as defined in s. 384A of the Consolidated Farm and Rural Development Act.
(e) A plan established and maintained by a state, a political subdivision thereof, or any agency or instrumentality of a state or a political subdivision, for the benefit of its employees, if such plan has total assets in excess of $5 million, an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as described in s. 3(21) of such act, which is a bank, savings and loan association, insurance company, or federal covered adviser, or if the employee benefit plan has total assets in excess of $5 million or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors.
(f) An organization described in s. 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts trust or similar business trust, partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5 million.
(g) A trust, with total assets in excess of $5 million, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Securities and Exchange Commission Rule 506(b)(2)(ii), 17 C.F.R. s. 230.506(b)(2)(ii), as amended.
(h) An entity of a type not listed in paragraphs (a)-(g) or paragraph (j) which owns investments as defined in Securities and Exchange Commission Rule 2a51-1(b), 17 C.F.R. s. 270.2a51-1(b), as amended, in excess of $5 million and is not formed for the specific purpose of acquiring the securities offered.
(i) A family office as defined in Securities and Exchange Commission Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, 17 C.F.R. s. 275.202(a)(11)(G)-1, as amended, provided that:
1. The family office has assets under management in excess of $5 million;
2. The family office is not formed for the specific purpose of acquiring the securities offered; and
3. The prospective investment of the family office is directed by a person who has knowledge and experience in financial and business matters that the family office is capable of evaluating the merits and risks of the prospective investment.
(j) An entity in which all of the equity owners are described in paragraphs (a)-(i).
(10)(a) The offer or sale, by or on behalf of an issuer, of its own securities if the offer or sale is part of an offering made in accordance with all of the following conditions:
1. There are no more than 35 purchasers, or the issuer reasonably believes that there are no more than 35 purchasers, of the securities of the issuer in this state during an offering made in reliance upon this subsection or, if such offering continues for a period in excess of 12 months, in any consecutive 12-month period.
2. Neither the issuer nor any person acting on behalf of the issuer offers or sells securities pursuant to this subsection by means of any form of general solicitation or general advertising in this state.
3. Before the sale, each purchaser or the purchaser’s representative, if any, is provided with, or given reasonable access to, full and fair disclosure of all material information, which must include written notification of a purchaser’s right to void the sale under subparagraph 4.
4. Any sale made pursuant to this subsection is voidable by the purchaser within 3 days after the first tender of consideration is made by such purchaser to the issuer by notifying the issuer that the purchaser expressly voids the purchase. The purchaser’s notice to the issuer must be sent by e-mail to the issuer’s e-mail address set forth in the disclosure document provided to the purchaser or purchaser’s representative or by hand delivery, courier service, or other method by which written proof of delivery to the issuer of the purchaser’s election to rescind the purchase is evidenced.
(b) The following purchasers are excluded from the calculation of the number of purchasers under subparagraph (a)1.:
1. Any spouse or child of the purchaser or any related family member who has the same principal residence as such purchaser.
2. A trust or estate in which a purchaser, any of the persons related to such purchaser specified in subparagraph 1., and any business entity specified in subparagraph 3., collectively, have more than 50 percent of the beneficial interest, excluding any contingent interest.
3. A business entity in which a purchaser, any of the persons related to such purchaser specified in subparagraph 1., and any trust or estate specified in subparagraph 2., collectively, are beneficial owners of more than 50 percent of the equity securities or equity interest.
4. An accredited investor.
A business entity must be counted as one purchaser. However, if the business entity is organized for the specific purpose of acquiring the securities offered and is not an accredited investor, each beneficial owner of equity securities or equity interests in the business entity must be counted as a separate purchaser. A noncontributory employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 must be counted as one purchaser if the trustee makes all investment decisions for the plan.
(11) Offers or sales of securities by an issuer in a transaction that meets all of the following conditions:
(a) The offers or sales of securities are made only to persons who are, or who the issuer reasonably believes are, accredited investors.
(b) The issuer is not a business entity that has an undefined business operation, lacks a business plan, lacks a stated investment goal for the funds being raised, or plans to engage in a merger or acquisition with an unspecified business entity.
(c) The issuer reasonably believes that all purchasers are purchasing for investment and not with the view to or for sale in connection with a distribution of the security. Any resale of a security sold in reliance on this exemption within 12 months after sale is presumed to be with a view to distribution and not for investment, except a resale pursuant to a registration statement effective under this chapter or pursuant to an exemption available under this chapter, the Securities Act of 1933, as amended, or the rules and regulations adopted thereunder.
(d)1. A general announcement of the proposed offering, made by any means, includes only the following information:
a. The name, address, and telephone number of the issuer of the securities.
b. The name, a brief description, and price, if known, of any security to be issued.
c. A brief description of the business.
d. The type, number, and aggregate amount of securities being offered.
e. The name, address, and telephone number of the person to contact for additional information.
f. A statement that:
(I) Sales will be made only to accredited investors;
(II) Money or other consideration is not being solicited and will not be accepted by way of this general announcement; and
(III) The securities have not been registered with or approved by any state securities agency or the Securities and Exchange Commission and are being offered and sold pursuant to an exemption from registration.
2. The issuer may, in connection with an offer, provide information in addition to the information provided in the general announcement as specified in subparagraph 1. if such information is delivered:
a. Through an electronic database that is restricted to persons who have been prequalified as accredited investors; or
b. After the issuer reasonably believes that the prospective purchaser is an accredited investor.
(e) The issuer does not use telephone solicitation unless, before placing the call, the issuer reasonably believes that the prospective purchaser to be solicited is an accredited investor.
(f) The issuer files with the office a notice of transaction on a form prescribed by commission rule, an irrevocable written consent to service of civil process in accordance with s. 517.101, and a copy of the general announcement within 15 days after the first sale is made in this state. The commission may adopt by rule procedures for filing documents by electronic means.
(g) Dissemination of the general announcement of the proposed offering to persons who are not accredited investors does not disqualify the issuer from claiming the exemption under this subsection.
(12) The isolated sale or offer for sale of securities when made by or on behalf of a bona fide owner, not the issuer or underwriter, of the securities, who disposes of such securities for the owner’s own account, and such sale is not made directly or indirectly for the benefit of the issuer or an underwriter of such securities or for the direct or indirect promotion of any scheme or enterprise with the intent of violating or evading this chapter. For purposes of this subsection, isolated offers or sales include, but are not limited to, an isolated offer or sale made by or on behalf of a bona fide owner, rather than the issuer or underwriter, of the securities if:
(a) The offer or sale of securities is in a transaction satisfying all of the conditions specified in paragraphs (10)(a) and (b); or
(b) The offer or sale of securities is in a transaction exempt under s. 4(a)(1) of the Securities Act of 1933, as amended, or under Securities and Exchange Commission rules or regulations.
(13) By or for the account of a pledgeholder, a secured party as defined in s. 679.1021(1), or a mortgagee selling or offering for sale or delivery in the ordinary course of business and not for the purposes of avoiding this chapter, to liquidate a bona fide debt, a security pledged in good faith as security for such debt.
(14) An unsolicited purchase or sale of securities on order of, and as the agent for, another solely and exclusively by a dealer registered pursuant to s. 517.12; provided that this exemption applies solely and exclusively to such registered dealers and does not authorize or permit the purchase or sale of securities at the direction of, and as agent for, another by any person other than a dealer so registered; and provided further that such purchase or sale may not be directly or indirectly for the benefit of the issuer or an underwriter of such securities or for the direct or indirect promotion of any scheme or enterprise with the intent of violating or evading this chapter.
(15) A nonissuer transaction with a federal covered adviser with investments under management in excess of $100 million acting in the exercise of discretionary authority in a signed record for the account of others.
(16) The sale by or through a registered dealer of any securities option if, at the time of the sale of the option:
(a) The performance of the terms of the option is guaranteed by any dealer registered under the Securities Exchange Act of 1934, as amended, which guaranty and dealer are in compliance with such requirements or rules as may be approved or adopted by the commission; or
(b)1. Such options transactions are cleared by the Options Clearing Corporation or any other clearinghouse recognized by commission rule;
2. The option is not sold by or for the benefit of the issuer of the underlying security; and
3. The underlying security may be purchased or sold on a recognized securities exchange registered under the Securities Exchange Act of 1934, as amended.
(17)(a) The offer or sale of securities, as agent or principal, by a dealer registered pursuant to s. 517.12, when such securities are offered or sold at a price reasonably related to the current market price of such securities, provided that such securities are:
1. Securities of an issuer for which reports are required to be filed by s. 13 or s. 15(d) of the Securities Exchange Act of 1934, as amended;
2. Securities of a company registered under the Investment Company Act of 1940, as amended;
3. Securities of an insurance company, as that term is defined in s. 2(a)(17) of the Investment Company Act of 1940, as amended; or
4. Securities, other than any security that is a federal covered security and is not subject to any registration or filing requirements under this chapter, that have been listed or approved for listing upon notice of issuance by a securities exchange registered under the Securities Exchange Act of 1934, as amended; and all securities senior to any securities so listed or approved for listing upon notice of issuance, or represented by subscription rights which have been so listed or approved for listing upon notice of issuance, or evidences of indebtedness guaranteed by an issuer with a class of securities listed or approved for listing upon notice of issuance by such securities exchange, such securities to be exempt only so long as such listings or approvals remain in effect. The exemption provided in this subparagraph does not apply when the securities are suspended from listing approval for listing or trading.
(b) The exemption provided in this subsection does not apply if the sale is made for the direct or indirect benefit of an issuer or a control person of such issuer or if such securities constitute the whole or part of an unsold allotment to, or subscription or participation by, a dealer as an underwriter of such securities.
(c) The exemption provided in this subsection is not available for any securities that have been denied registration pursuant to s. 517.111. Additionally, the office may deny this exemption with reference to any particular security, other than a federal covered security, by order published in such manner as the office finds proper.
(18) Any nonissuer transaction by a registered dealer, and any resale transaction by a sponsor of a unit investment trust registered under the Investment Company Act of 1940, as amended, in a security of a class that has been outstanding in the hands of the public for at least 90 days; provided that, at the time of the transaction, the following conditions in paragraphs (a)-(c) and either paragraph (d) or paragraph (e) are met:
(a) The issuer of the security is actually engaged in business and is not in the organizational stage or in bankruptcy or receivership and is not a blank check, blind pool, or shell company whose primary plan of business 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 the current market price of the security.
(c) The security does not constitute the whole or part of an unsold allotment to, or a subscription or participation by, the dealer as an underwriter of the security.
(d) The security is listed in a nationally recognized securities manual designated by rule of the commission or a document filed with and publicly viewable through the Securities and Exchange Commission electronic data gathering and retrieval system and contains:
1. A description of the business and operations of the issuer.
2. The names of the issuer’s officers and directors, if any, or, in the case of an issuer not domiciled in the United States, the corporate equivalents of such persons in the issuer’s country of domicile.
3. An audited balance sheet of the issuer as of a date within 18 months before such transaction or, in the case of a reorganization or merger in which parties to the reorganization or merger had such audited balance sheet, a pro forma balance sheet.
4. An audited income statement for each of the issuer’s immediately preceding 2 fiscal years, or for the period of existence of the issuer, if in existence for less than 2 years or, in the case of a reorganization or merger in which the parties to the reorganization or merger had such audited income statement, a pro forma income statement.
(e)1. The issuer of the security has a class of equity securities listed on a national securities exchange registered under the Securities Exchange Act of 1934, as amended;
2. The class of security is quoted, offered, purchased, or sold through an alternative trading system registered under Securities and Exchange Commission Regulation ATS, 17 C.F.R. s. 242.301, as amended, and the issuer of the security has made current information publicly available in accordance with Securities and Exchange Commission Rule 15c2-11, 17 C.F.R. s. 240.15c2-11, as amended;
3. The issuer of the security is a unit investment trust registered under the Investment Company Act of 1940, as amended;
4. The issuer of the security has been engaged in continuous business, including predecessors, for at least 3 years; or
5. The issuer of the security has total assets of at least $2 million based on an audited balance sheet as of a date within 18 months before such transaction or, in the case of a reorganization or merger in which parties to the reorganization or merger had such audited balance sheet, a pro forma balance sheet.
(19) The offer or sale of any security effected by or through a person in compliance with s. 517.12(17).
(20)(a) A nonissuer transaction in an outstanding security by or through a dealer registered or exempt from registration under this chapter, if, at the time of the transaction, all of the following conditions are met:
1. The issuer is a reporting issuer in a foreign jurisdiction, and the issuer has been subject to continuous reporting requirements in such foreign jurisdiction for not less than 180 days before the transaction.
2. The security is listed on a foreign securities exchange or foreign securities market designated by commission rule, is a security of the same issuer which is of senior or substantially equal rank to the listed security, or is a warrant or right to purchase or subscribe to any such security.
(b) The commission shall consider all of the following in designating a foreign securities exchange or foreign securities market for purposes of this subsection:
1. Organization under foreign law.
2. Association with a community of dealers, financial institutions, or other professional intermediaries with an established operating history.
3. Oversight by a governmental or self-regulatory body.
4. Oversight standards set by general law.
5. Reporting of securities transactions on a regular basis to a governmental or self-regulatory body.
6. A system for exchange of price quotations through common communications media.
7. An organized clearance and settlement system.
8. Listing in Securities and Exchange Commission Regulation S Rule 902, 17 C.F.R. s. 230.902, as amended.
If, after an administrative hearing in compliance with ss. 120.569 and 120.57, the office finds that revocation is necessary or appropriate in furtherance of the public interest and for the protection of investors, it may revoke the designation of a foreign securities exchange or foreign securities market.
(21) Other transactions exempted by commission rule upon a finding by the office that the application of s. 517.07 to a particular transaction is not necessary or appropriate in furtherance of the public interest and for the protection of investors due to the small dollar amount of the securities involved or the limited character of the offering. In conjunction with its adoption by rule of such exemptions, the commission may exempt persons selling or offering for sale securities in such a transaction from the registration requirements of s. 517.12. A rule adopted by the commission under this subsection may not have the effect of narrowing or limiting any exemption specified in this section.
Cited 229 times | Published | Supreme Court of Florida | 2002 WL 1290902
...Trinh's agents were not required to be licensed securities brokers within the State of Florida to legally offer the loans evidenced by those instruments. Moreover, Horowitz advised that, even if the notes and certificates were deemed to be securities, they were exempt from registration under section 517.051(8) or section 517.061(11)(a), Florida Statutes (1993), or both....
...and in particular the Florida Securities Act. Professor Mofsky's affidavit specifically addressed the issue of whether or not Plaintiff John Miller was properly notified of his right to void this security purchase within three (3) days, pursuant to Section 517.061(11)(a)(5), Florida Statutes (1987). Plaintiffs assert that the affidavit does not present admissible evidence, in that the affidavit is an attempt to instruct the Court on the application of the law, Section 517.061, to the undisputed facts of this case and the consequent ultimate conclusion as to whether or not the statutory requirements have been satisfied....
...of all Plaintiffs on or about June 18, 1981. 2. At the time of Plaintiffs subscribing, Florida law provided for exemption from the registration requirements of Section 517.07, Fla.Stat. for certain transactions. Relevant to the securities herein was Section 517.061(12), Fla.Stat. (1981), [recodified as Section 517.061(11)] [hereinafter reference will be to Section 517.061(12) only] which read in relevant part: (a) The offer or sale, by or on behalf of an issuer, of its own securities that is part of an offering made in accordance with all of the following conditions: 1....
...rities Division of the Controller's Office. The rule required private offering memoranda, such as in the VEMCO 1981 program, contain "[a] statement indicating that the sale shall be voidable by the purchaser within three days of sale, as required by Section 517.061(12)(a)(5)." 4....
...1. 8. The VEMCO 1981 program units were not registered under the Florida Securities Act at the time of their offer and sale to Plaintiffs. Defendants assert that the offer and sale were exempt from registration by virtue of the exemption provided by Section 517.061(12)....
...There are no other statements, either oral or written, asserted by Defendants to be sufficient to meet the statutory notification requirement as to voidability. DISCUSSION To be entitled to the exemption for non-registered securities, the offer and sale herein had to comply with all five of the conditions set forth in Section 517.061(12). In the instant motions for summary judgment, the condition discussed is 517.061(12)(a)(5), hereinafter the fifth condition....
...e in writing, the Court does not find that requirement necessitates finding that the provision does not meet statutory requirements. The only thing required by the statute is that the purchaser be notified of his right to void a purchase pursuant to Section 517.061(12)(a)(5)....
...[who] participated or aided in making the sale." Section 517.07 simply provides that it is unlawful to sell an unregistered security, unless the sale is exempt from registration. It provides: No security ... unless sold in any transaction exempt under any of the provisions of s. 517.061 shall be sold or offered for sale within this state unless such securities have been registered....
...ssues pertinent to Plaintiffs' Count I. Even as to the exemption defenses, there is a substantial parallel between the facts pertinent to the Oklahoma exemption and those pertinent to the Florida exemption. The Florida exemption claimed in F.S.A. 517.061(12) and one of the conditions to that exemption (compliance with which is in dispute here) is: 3....
...Both prohibit use of "general advertising or general solicitation." Both limit the number of purchasers. Both prohibit payment of a commission to a party who is not a registered broker/dealer. Cf., Okla. Stat. tit. 71 401(b)(9)C2 and F.S. (1981) 517.061(12)(a)(2) [general advertisements]. Cf., Okla.Stat. tit. 71 401(b)(9)C2 and F.S. (1981) 517.061(12)(a)(4) [prohibited commissions to non-broker/dealers]....
...ting Rule 146 private placement exemption under the Securities Act of 1933. The only point upon which the Florida exemption differs from the Oklahoma exemption in any material respect is the "Fifth Condition" of the Florida exemption. F.S. (1981) 517.061(12)(a)(5)....
...Thus, the Court must consider whether Florida law is preempted by NSMIA. As amended in 1997, Florida law provides, "It is unlawful and a violation of this chapter for any person to sell or offer to sell a security within this state unless the security is exempt under § 517.051, is sold in a transaction under § 517.061, is a federal covered security, or is registered pursuant to this chapter." FLA.STAT....
Cited 13 times | Published | Court of Appeals for the Eleventh Circuit
...purchased between October, 1980, and March, 1985, were sold in violation of the registration requirements of Sec. 517.07. 2 As an affirmative defense the Fund asserted that the transactions in question were exempt from registration according to Sec. 517.061(19), Fla.Stat....
...equirements. By September 1, 1979, the Florida Department of Banking and Finance, Division of Securities and Investor Protection (the Division) had received from the Fund, in addition to a $750.00 filing fee, all of the documents required under Sec. 517.061(19), Fla.Stat....
...the initial registration statement and prospectus filed with the SEC and an irrevocable consent to service of process. On October 12, 1979, the Division issued to the Fund a "Notification of Exemption" certifying that the Fund had complied with Sec. 517.061(19)....
...4 In 1979, the Florida Legislature amended the original statute, adding a requirement that issuers of securities registered with the SEC and exempt from Florida registration pay a $750.00 nonreturnable fee to the Division for each 36-consecutive-month period in which the securities are offered and sold in Florida. Sec. 517.061(19), Fla.Stat....
...The relevant statutory language is: "The fee required by this paragraph shall be paid to the department for each 36-consecutive-month period in which the securities are offered and sold. The 36-consecutive-month period shall commence upon receipt by the department of the notice of intention to sell." Sec. 517.061(19)(b), Fla.Stat....
...ce." Id. 8 15 We believe that the words used in the amended statute convey a plain and obvious meaning, admitting no ambiguity. A close reading of the amended statute reveals that to maintain the effectiveness of an exemption from registration under section 517.061(19), subsection (b) requires only that an issuer pay the prescribed fee after three years of selling securities in Florida....
...ers the precise issue presented here. We therefore certify the following question to the Supreme Court of Florida pursuant to Rule 9.150, Fla.R.App.P.: 17 WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO Sec. 517.061(19), Fla.Stat. (1978 Supp.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, Sec. 517.061(19)(b), FLA.STAT....
...It acknowledges that exemption from registration was a privilege which the legislature had the power to revoke or modify. The Fund's position is that the legislature chose not to exercise that power in enacting the amended statute 6 The rule provides: (1) Notices of Intention to Sell pursuant to Section 517.061(19), F.S., shall be filed on the forms prescribed by the Department and shall include: (a) one (1) copy of the cover page of the initial registration statement as filed with the United States Securities and Exchange Commission, unless effective with the S.E.C. upon filing with this Department; (b) an irrevocable written consent to service as required by Section 517.101, F.S.; (c) payment of the statutory fee as required by Section 517.061(19)(d) [sic], F.S....
...(2) Exhibits which are required by the Notice of Intention to Sell form may not be incorporated by reference to previous filings. (3) In addition to the requirements of subsection (1) of this rule, prior to the confirmation by the Department of a claim of exemption by the notifier pursuant to Section 517.061(19), F.S., the notifier shall provide the Department one (1) copy of the final definitive prospectus as per the effective registration with the [SEC]....
...See Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994); Lopez v. First Union National Bank of Florida, 129 F.3d 1186 (11th Cir.1997). [2] Plaintiffs contend that the sale of BAOA and Cash 4 Titles securities are not exempt transactions pursuant to section 517.061, Florida Statutes....
Cited 7 times | Published | Florida 1st District Court of Appeal | 2003 WL 1086514
...reet stock and asserted revised claims as creditors. The trial court allowed the appellees' claims as unsecured, nonpriority claims based on its finding that the appellees had timely rescinded their purchases of First Street common stock pursuant to section 517.061(11)(a)5, Florida Statutes (1997)....
...Moecker asserts that the trial court erred in allowing the appellees' claims, arguing that the appellees' rescission claims arose after the date of assignment and were therefore not allowable under section 727.112(1), Florida Statutes (1997), and that the appellees' rescission under section 517.061(11)(a)5 was untimely....
...ntributions to First Street, not loans, they were not creditors. In October 2001, the Antoines and the Matthews filed in the circuit court proceeding notices of the rescission of their stock purchases pursuant to the rescission privilege provided by section 517.061(11)(a)5, Florida Statutes....
...rder allowing the appellees' claims. In the order under review, the trial court found that the October 2001 rescissions by the Antoines and Matthews were timely "because First Street Mortgage Corporation never communicated the right to rescind under § 517.061(11)(a)5, Fla. Stat., to the Claimants." The trial court reasoned that, because First Street had not informed the *907 Matthews and the Antoines of their rights to rescind the stock purchase pursuant to section 517.061(11)(a)5, their right to rescind had not expired. The trial court further ruled that, even though the Matthews and Antoines eventually gained actual knowledge of a rescission right, such knowledge, by itself, was not a sufficient basis for commencing the three day rescission period provided by section 517.061(11)(a)5....
...Thus, the claims were allowed as unsecured, nonpriority claims. The issues presented in this appeal are issues of law. Thus, the standard of review is de novo. See Walter v. Walter, 464 So.2d 538 (Fla.1985); Rittman v. Allstate Ins. Co., 727 So.2d 391 (Fla. 1st DCA 1999). Rescission under Section 517.061(11)(a)5 The federal Securities Act of 1933 requires that all securities sold or offered for sale in interstate commerce or through the mail must be registered with the United States Securities and Exchange Commission, 15 U.S.C....
...[2] Under the Florida blue sky laws, the Florida Securities and Investor Protection Act provides: It is unlawful and a violation of this chapter to any person to sell or offer to sell a security within this state unless the security is exempt under s. 517.051, is sold in a transaction exempt under s. 517.061, is a federal covered security, or is registered pursuant to this chapter....
...(1997). It is without dispute that First Street did not register its offer or sale of common stock to the appellees and that the only issue raised here with respect to the offering concerns the rescission privilege included in the exemption provided by section 517.061(11)(a), Florida Statutes (1997)....
...bear the burden of proof." Weinberg v. Pennington, 462 So.2d 862, 863 (Fla. 3d DCA 1985); see also § 517.171, Fla. Stat. (1997). When sales of securities are made to five or more persons in Florida, a fact not in dispute here, subparagraph 5 of subsection 517.061(11)(a) makes the purchase voidable "either within 3 days after the tender of consideration [was] made by the purchaser to the issuer, an agent of the issuer, or an escrow agent or within 3 days after the availability of that privilege is communicated to such purchaser, whichever occurs later." § 517.061(11)(a)5 (emphasis added)....
...[4] The trial court found that the appellees "had actual knowledge of their right to rescind their stock purchase more than one year in advance of their rescissions...." The trial court further concluded, though, that the "actual knowledge" possessed by the appellees was "not enough to trigger the three day period under § 517.061(11)(a)5, Fla....
...ocent purchasers of securities. Henderson v. Hayden, Stone Inc., 461 F.2d 1069, 1072 (5th Cir.1972). As did the trial court, we find the reasoning of the court in Barnebey v. E.F. Hutton & Co . persuasive. As the court there explained, the intent of section 517.061(11)(a)5, in part, is to provide purchasers with a fixed event from which to calculate the time available for voiding a purchase under the statute....
...he conditions necessary for claiming an exemption from registration of securities. Id. Here, the trial court found, and Moecker does not dispute, that First Street failed to communicate to appellees their right to rescind the purchase of stock under section 517.061(11)(a)5....
...Matthews as an attorney, there is no evidence in the record that either of them possessed specialized professional expertise or knowledge with respect to the rescission provisions of chapter 517. While we agree with Moecker that a person with actual and complete knowledge of the rescission rights under section 517.061(11)(a)5 in a particular offering, including when the rescission period commences, should not be able to sit on his or her knowledge and play "gotcha" with the rescission right, those facts do not exist in this record....
...giving rise to the alleged liability were performed.... In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986). As discussed above, the appellees rescinded their purchases of First Street stock based upon the rescission rights provided by section 517.061(11)(a)(5). [11] That statute makes an applicable unregistered purchase voidable within three days after the tender of consideration by the purchaser or within three days after the availability of the rescission privilege is communicated to the purchaser. § 517.061(11)(a)(5)....
...Accordingly, for the reasons discussed above, we affirm. PADOVANO, J., CONCURS AND WEBSTER, J., DISSENTS WITH WRITTEN OPINION. WEBSTER, J., dissenting. I find myself constrained to dissent because I am unable to reconcile the majority's decision with the clear language of section 517.061(11)(a)5, Florida Statutes (1997)....
...nce to the language used. When that language is clear and unambiguous, there is nothing for us to construe. In such a case, our job consists of nothing more than applying the plain meaning of the statute to the facts presented. I am of the view that section 517.061(11)(a)5 is such a piece of legislation. Reduced to its essentials, section 517.061(11)(a)5 says that "any sale ......
...22 (1958)("the term `blue sky' was first used to describe the business practices of promoters and securities salesmen in Kansas at the turn of the century. The activities of these individuals, it was claimed, bordered on the sale of building lots in the blue sky in fee simple."). [3] Section 517.061 provides that the registration requirements of section 517.07 do not apply to, among other transactions, to: (11)(a) The offer or sale, by or on behalf of an issuer, of its own securities, which offer or sale is part of an offering made in accordance with all of the following conditions: 1....
...Wittner, Blue Sky Prac.App. 9F¶ 1352 (2002). [6] The record on appeal is very limited as to facts relating to the appellees' knowledge of their rescission rights. The only record evidence of the appellees' knowledge is a bare admission of knowledge of section 517.061(11)(a)5 contained in the appellees' rescission notice filed below....
Cited 6 times | Published | Florida 5th District Court of Appeal
...ler up to a maximum of $100,000. Stottler put $153,000 into the venture but Argo failed to pay any part of his commitment which precipitated this litigation. The issue here is whether the October 27, 1977 agreement was exempt under the provisions of section 517.061, Florida Statutes (1977) and sections 4(1), (2) [2] of the Federal Securities Act of 1933, as amended....
...A private offering is exempt if the purchasers (1) are limited in number, (2) are sophisticated, and (3) have a relationship with the issuer enabling them to command access to information that would otherwise be contained in a registration statement. Cook v. Avien, Inc., 573 F.2d 685 (1st Cir.1978). See also section 517.061(3), Florida Statutes (1977)....
Cited 6 times | Published | Florida 1st District Court of Appeal | 1995 WL 592308
...As an example of this recognition, the United States and the states govern the raising of capital through this "medium for investment" by the regulation of private offerings of securities of small businesses. See, e.g., 15 U.S.C. § 77d(2); 17 C.F.R. §§ 230.501-230.505; § 517.061, Fla....
Cited 4 times | Published | Florida 3rd District Court of Appeal
...overy, the cause proceeded to a non-jury trial against the individual defendants. The trial court found that no fraud of any variety had been established and that the transaction in question was exempted from the registration requirement pursuant to § 517.061(12)(a), Fla....
...While the evidence supports and we thus may not disturb the trial court's findings against the plaintiff as to fraud, Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982), we find otherwise on the unregistered securities count. The exemption contained in § 517.061(12)(a) applies only if all five specified statutory conditions are established, an issue upon which the parties relying upon the exemption, the appellees, bear the burden of proof....
...Jennings, 90 Fla. 234, 107 So. 175 (1925). Second, where a party not under a duty to disclose undertakes to do so, but does so with half-truths. Vokes v. Arthur Murray, Inc., 212 So.2d 906 (Fla. 2d DCA 1968). Third, when a statute imposes the duty. See, e.g., § 517.061(11)(a)3., Fla....
...Accordingly, we do not reach Wood Gundy's claim that it is entitled to counsel fees for defending the claims on which it prevailed 7 FIPA provides that "[n]o securities except of a class exempt under any of the provisions of § 517.051 or unless sold in any transaction exempt under any of the provisions of § 517.061 shall be sold or offered for sale within this state unless such securities have been registered...." Fla.Stat.Ann....
...The United States Court of Appeals for the Eleventh Circuit, in Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335 (11th Cir.1989), has certified the following question to this Court: WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO § 517.061(19), Fla. Stat. (1978 Supp.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, § 517.061(19)(b), FLA....
...h he purchased between October, 1980, and March, 1985, were sold in violation of the registration requirements of § 517.07. [2] As an affirmative defense the Fund asserted that the transactions in question were exempt from registration according to § 517.061(19), Fla....
...ion requirements. By September 1, 1979, the Florida Department of Banking and Finance, Division of Securities and Investor Protection (the Division) had received from the Fund, in addition to a $750.00 filing fee, all of the documents required under § 517.061(19), Fla....
...y of the initial registration statement and prospectus filed with the SEC and an irrevocable consent to service of process. On October 12, 1979, the Division issued to the Fund a "Notification of Exemption" certifying that the Fund had complied with § 517.061(19)....
...In 1979, the Florida Legislature amended the original statute, adding a requirement that issuers of securities registered with the SEC and exempt from Florida registration pay a $750.00 nonreturnable fee to the Division for each 36-consecutive-month period in which the securities are offered and sold in Florida. § 517.061(19), Fla....
...d by this paragraph shall be paid to the department for each 36-consecutive-month period in which the securities are offered and sold. The 36-consecutive-month period shall commence upon receipt by the department of the notice of intention to sell." § 517.061(19)(b), Fla....
...... . *1132 We believe that the words used in the amended statute convey a plain and obvious meaning, admitting no ambiguity. A close reading of the amended statute reveals that to maintain the effectiveness of an exemption from registration under section 517.061(19), subsection (b) requires only that an issuer pay the prescribed fee after three years of selling securities in Florida....
...To avoid duplication of work, the statute provides exceptions to registration when a company demonstrates that it has fully complied with the appropriate federal securities laws. In the instant case, the fund paid a $750 filing fee and filed each of the required documents pursuant to section 517.061(19), Florida Statutes (1979)....
...s are offered and sold. The 36-consecutive-month period shall commence upon receipt by the department of the notice of intention to sell." [*] Rule 3E-500.09, Florida Administrative Code (1979), provided: (1) Notices of Intention to Sell pursuant to Section 517.061(19), Florida Statutes, shall be filed on the forms prescribed by the Department and shall include: (a) one (1) copy of the cover page of the initial registration statement as filed with the United States Securities and Exchange Commission, unless effective with the S.E.C. upon filing with this Department; (b) an irrevocable written consent to service as required by Section 517.101, Florida Statutes; (c) payment of the statutory fee as required by Section 517.061(19)(d), Florida Statutes....
...(2) Exhibits which are required by the Notice of Intention to Sell form may not be incorporated by reference to previous filings. (3) In addition to the requirements of subsection (1) of this rule, prior to the confirmation by the Department of a claim of exemption by the notifier pursuant to Section 517.061(19), Florida Statutes, the notifier shall provide the Department one (1) copy of the final definitive prospectus as per the effective registration with the United States Securities and Exchange Commission.
Published | Court of Appeals for the Eleventh Circuit | 1993 WL 488586
...Accordingly, we do not reach Wood Gundy’s claim that it is entitled to counsel fees for defending the claims on which it prevailed. . FIPA provides that "[n]o securities except of a class exempt under any of the provisions of § 517.051 or unless sold in any transaction exempt under any of the provisions of § 517.061 shall be sold or offered for sale within this state unless such securities have been registered....” Fla.Stat.Ann....
...of the partnership agreement legal, and, hence, enforceable. However, the record does not support a finding that these exemptions would redeem the partnership agreement from the illegality realm. We consider each exemption in turn. Umbel argues that section 517.061(11) renders the partnership agreement legal and enforceable....
...This section exempts from registration offers for sale by or on behalf of an issuer of its own securities under certain enumerated conditions. This exemption does not help Umbel because the exemption only applies where there is no commission or compensation for the sale, or the seller is a registered dealer. § 517.061(ll)(a)4, Fla....
...Count V made similar factual claims,
alleging a cause of action for negligent misrepresentation.
Finally, count VI alleged an action for recission against Venn,
claiming that Venn failed to inform the Appellees of their right to void
their investments pursuant to section 517.061(11)(a)5.
We conclude that the claims alleged in the complaint are
inextricably intertwined with the contracts and arise from the formation
of the contracts....
...Count V made similar factual claims,
alleging a cause of action for negligent misrepresentation.
Finally, count VI alleged an action for recission against Venn,
claiming that Venn failed to inform the Appellees of their right to void
their investments pursuant to section 517.061(11)(a)5.
We conclude that the claims alleged in the complaint are
inextricably intertwined with the contracts and arise from the formation
of the contracts....
Published | Court of Appeals for the Eleventh Circuit | 1990 WL 77591
...and Finance, Division of Securities and Investor Protection (the “Division”), for each 36-consecutive-month period in which the securities are offered and sold in Florida. Birnholz v. 44-Wall Street Fund, Inc., 880 F.2d 335 (11th Cir.1989); see § 517.061(19), Fla.Stat. (1978 Supp.) (the original statute), and § 517.061(19), Fla.Stat....
...Because we could find no controlling precedent to answer the precise issue of whether this technical violation should be excused, we certified the following question to the Supreme Court of Florida pursuant to Rule 9.150, Fla.R. App.P: WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO § 517.061(19), FLA.STAT. (1978 SUPP.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, § 517.061(19)(b), FLA.STAT....
...The United States Court of Appeals for the Eleventh Circuit, in Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335 (11th Cir.1989), has certified the following question to this Court: WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO § 517.061(19), Fla.Stat. (1978 Supp.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, § 517.061(19)(b), FLA.STAT....
...hich he purchased between October, 1980, and March, 1985, were sold in violation of the registration requirements of § 517.07.2 As an affirmative defense the Fund asserted that the transactions in question were exempt from registration according to § 517.061(19), Fla.Stat....
...ion requirements. By September 1, 1979, the Florida Department of Banking and Finance, Division of Securities and Investor Protection (the Division) had received from the Fund, in addition to a $750.00 filing fee, all of the documents required under § 517.061(19), Fla.Stat....
...the initial registration statement and prospectus filed with the SEC and an irrevocable consent to service of process. On October 12, 1979, the Division issued to the Fund a “Notification of Exemption” certifying that the Fund had complied with § 517.061(19)....
...In 1979, the Florida Legislature amended the original statute, adding a requirement that issuers of securities registered with the SEC and exempt from Florida registration pay a $750.00 nonreturnable fee to the Division for each 36-consecutive-month period in which the securities are offered and sold in Florida. § 517.061(19), Fla.Stat....
...paragraph shall be *571 paid to the department for each 36-con-secutive-month period in which the securities are offered and sold. The 36-con-secutive-month period shall commence upon receipt by the department of the notice of intention to sell.” § 517.061(19)(b), Fla.Stat....
...position.... We believe that the words used in the amended statute convey a plain and obvious meaning, admitting no ambiguity. A close reading of the amended statute reveals that to maintain the effectiveness of an exemption from registration under section 517.061(19), subsection (b) requires only that an issuer pay the prescribed fee after three years of selling securities in Florida....
...To avoid duplication of work, the statute provides exceptions to registration when a company demonstrates that it has fully complied with the appropriate federal securities laws. In the instant case, the fund paid a $750 filing fee and filed each of the required documents pursuant to section 517.061(19), Florida Statutes (1978 Supp.)....
...entitled to relief, because there was substantial compliance by the Fund with the terms of the amended statute.” Birnholz, 880 F.2d at 338 . Rule 3E-500.09, Florida Administrative Code (1979), provided: (1)Notices of Intention to Sell pursuant to Section 517.061(19), Florida Statutes, shall be filed on the forms prescribed by the Department and shall include: (a) one (1) copy of the cover page of the initial registration statement as filed with the United States Securities and Exchange Commission, unless effective with the S.E.C. upon filing with this Department;. (b) an irrevocable written consent to service as required by Section 517.101, Florida Statutes; (c) payment of the statutory fee as required by Section 517.061(19)(d), Florida Statutes....
...and Finance, Division of Securities and Investor Protection (the "Division"), for each 36-consecutive-month period in which the securities are offered and sold in Florida. Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335 (11th Cir.1989); see Sec. 517.061(19), Fla.Stat. (1978 Supp.) (the original statute), and Sec. 517.061(19), Fla.Stat....
...her this technical violation should be excused, we certified the following question to the Supreme Court of Florida pursuant to Rule 9.150, Fla.R.App.P: 3 WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO Sec. 517.061(19), FLA.STAT. (1978 SUPP.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, Sec. 517.061(19)(b), FLA.STAT....
...11 The United States Court of Appeals for the Eleventh Circuit, in Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335 (11th Cir.1989), has certified the following question to this Court: 12 WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO Sec. 517.061(19), Fla.Stat. (1978 Supp.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, Sec. 517.061(19)(b), FLA.STAT....
...purchased between October, 1980, and March, 1985, were sold in violation of the registration requirements of Sec. 517.07. 2 As an affirmative defense the Fund asserted that the transactions in question were exempt from registration according to Sec. 517.061(19), Fla.Stat....
...equirements. By September 1, 1979, the Florida Department of Banking and Finance, Division of Securities and Investor Protection (the Division) had received from the Fund, in addition to a $750.00 filing fee, all of the documents required under Sec. 517.061(19), Fla.Stat....
...the initial registration statement and prospectus filed with the SEC and an irrevocable consent to service of process. On October 12, 1979, the Division issued to the Fund a "Notification of Exemption" certifying that the Fund had complied with Sec. 517.061(19)....
...18 In 1979, the Florida Legislature amended the original statute, adding a requirement that issuers of securities registered with the SEC and exempt from Florida registration pay a $750.00 nonreturnable fee to the Division for each 36-consecutive-month period in which the securities are offered and sold in Florida. Sec. 517.061(19), Fla.Stat....
...this paragraph shall be paid to the department for each 36-consecutive-month period in which the securities are offered and sold. The 36-consecutive-month period shall commence upon receipt by the department of the notice of intention to sell." Sec. 517.061(19)(b), Fla.Stat....
..... 23 .... 24 We believe that the words used in the amended statute convey a plain and obvious meaning, admitting no ambiguity. A close reading of the amended statute reveals that to maintain the effectiveness of an exemption from registration under section 517.061(19), subsection (b) requires only that an issuer pay the prescribed fee after three years of selling securities in Florida....
...To avoid duplication of work, the statute provides exceptions to registration when a company demonstrates that it has fully complied with the appropriate federal securities laws. 27 In the instant case, the fund paid a $750 filing fee and filed each of the required documents pursuant to section 517.061(19), Florida Statutes (1978 Supp.)....
...as substantial compliance by the Fund with the terms of the amended statute." Birnholz, 880 F.2d at 338 .renewal fee, pursuant to a subsequently enacted amendment, does not void the exemption in this case (1) Notices of Intention to Sell pursuant to Section 517.061(19), Florida Statutes, shall be filed on the forms prescribed by the Department and shall include: (a) one (1) copy of the cover page of the initial registration statement as filed with the United States Securities and Exchange Commission, unless effective with the S.E.C. upon filing with this Department; (b) an irrevocable written consent to service as required by Section 517.101, Florida Statutes; (c) payment of the statutory fee as required by Section 517.061(19)(d), Florida Statutes....
...(2) Exhibits which are required by the Notice of Intention to Sell form may not be incorporated by reference to previous filings. (3) In addition to the requirements of subsection (1) of this rule, prior to the confirmation by the Department of a claim of exemption by the notifier pursuant to Section 517.061(19), Florida Statutes, the notifier shall provide the Department one (1) copy of the final definitive prospectus as per the effective registration with the United States Securities and Exchange Commission....
...ies are offered and sold. The 36-consecutive-month period shall commence upon receipt by the department of the notice of intention to sell." * Rule 3E-500.09, Florida Administrative Code (1979), provided: (1) Notices of Intention to Sell pursuant to Section 517.061(19), Florida Statutes, shall be filed on the forms prescribed by the Department and shall include: (a) one (1) copy of the cover page of the initial registration statement as filed with the United States Securities and Exchange Commission, unless effective with the S.E.C. upon filing with this Department; (b) an irrevocable written consent to service as required by Section 517.101, Florida Statutes; (c) payment of the statutory fee as required by Section 517.061(19)(d), Florida Statutes....
...(2) Exhibits which are required by the Notice of Intention to Sell form may not be incorporated by reference to previous filings. (3) In addition to the requirements of subsection (1) of this rule, prior to the confirmation by the Department of a claim of exemption by the notifier pursuant to Section 517.061(19), Florida Statutes, the notifier shall provide the Department one (1) copy of the final definitive prospectus as per the effective registration with the United States Securities and Exchange Commission.
Published | United States Bankruptcy Court, M.D. Florida | 20 Fla. L. Weekly Fed. B 467, 2007 Bankr. LEXIS 2147
...Section 517.07, Florida Statutes, further provides in pertinent part: (1) It is unlawful and a violation of this chapter for any person to sell or offer to sell a security within this state unless the security is exempt under s. 517.051, is sold in a transaction exempt under s. 517.061, is a federal covered security, or is registered pursuant to this chapter....
...Securities Transaction. After a review of § 517.051, Florida Statutes, the Court concludes that the Securities issued were not exempt under the terms of those exemptions. In addition, the Securities were not a federal covered security. According to § 517.061, Florida Statutes, a securities transaction is exempt from any registration with the state of Florida, so long as the “issuer []or any person acting on behalf of the issuer [does *401 not] offer or sell [its own] securities ... by means of any form of general solicitation or general advertising in this state.” Fla. Stat. Ann. § 517.061 (11)(a)(2) (West 2005). In addition, under § 517.061, “[p]rior to the sale [of the issuer’s own securities], each purchaser ......
...e purchased between October, 1980, and March, 1985, were sold in violation of *337 the registration requirements of § 517.07. 2 As an affirmative defense the Fund asserted that the transactions in question were exempt from registration according to § 517.061(19), Fla.Stat....
...ion requirements. By September 1, 1979, the Florida Department of Banking and Finance, Division of Securities and Investor Protection (the Division) had received from the Fund, in addition to a $750.00 filing fee, all of the documents required under § 517.061(19), Fla.Stat....
...the initial registration statement and prospectus filed with the SEC and an irrevocable consent to service of process. On October 12, 1979, the Division issued to the Fund a “Notification of Exemption” certifying that the Fund had complied with § 517.061(19)....
...In 1979, the Florida Legislature amended the original statute, adding a requirement that issuers of securities registered with the SEC and exempt from Florida registration pay a $750.00 nonreturnable fee to the Division for each 36-consecutive-month period in which the securities are offered and sold in Florida. § 517.061(19), Fla.Stat....
...The relevant statutory language is: “The fee required by this paragraph shall be paid to the department for each 36-eonsecutive-month period in which the securities are offered and sold. The 36-consecutive-month period shall commence upon receipt by the department of the notice of intention to sell.” § 517.061(19)(b), Fla.Stat....
...ace.” Id. 8 We believe that the words used in the amended statute convey a plain and obvious meaning, admitting no ambiguity. A close reading of the amended statute reveals that to maintain the effectiveness of an exemption from registration under section 517.061(19), subsection (b) requires only that an issuer pay the prescribed fee after three years of selling securities in Florida....
...urt answers the precise issue presented here. We therefore certify the following question to the Supreme Court of Florida pursuant to Rule 9.150, Fla.R.App.P.: WHETHER AN ISSUER THAT PROPERLY OBTAINED AN EXEMPTION FROM STATE REGISTRATION PURSUANT TO § 517.061(19), Fla.Stat. (1978 Supp.), BUT FAILED, AFTER 36 CONSECUTIVE MONTHS OF SELLING ITS SHARES IN FLORIDA, TO FORWARD THE $750.00 FEE PROVIDED FOR IN THE AMENDED STATUTE, § 517.061(19)(b), FLA.STAT....
...It acknowledges that exemption from registration was a privilege which the legislature had the power to revoke or modify. The Fund’s position is that the legislature chose not to exercise that power in enacting the amended statute. . The rule provides: (1) Notices of Intention to Sell pursuant to Section 517.061(19), F.S., shall be filed on the forms prescribed by the Department and shall include: (a) one (1) copy of the cover page of the initial registration statement as filed with the United States Securities and Exchange Commission, unless effective with the S.E.C. upon filing with this Department; (b) an irrevocable written consent to service as required by Section 517.101, F.S.; (c) payment of the statutory fee as required by Section 517.061(19)(d) [sic], F.S....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
