Securities Offerings/Issuers

Note: Sections of the Official Code of Georgia Annotated referenced in this document are available online at http://www.legis.state.ga.us -- select "Georgia Code" and search for the desired section.

The Commissioner regulates the registration and licensing of securities offerings.  Before a security can be sold in Georgia, the security must be either registered or exempt from registration under Georgia law.  See O.C.G.A. § 10-5-5, § 10-5-6 and Georgia Regulation 590-4-5-.01 et. seq.. The Securities Division performs a disclosure review on certain types of securities offerings and has notice filing procedures for other types of securities filings.  Generally, filings under O.C.G.A. § 10-5-5(b), (d), (e) and (f) are subjected to disclosure reviews.  Other types of securities offerings are permitted after a basic notice filing. Georgia accepts certain notice filings for mutual funds, unit investment trusts and Regulation D Rule 506 issues pursuant to O.C.G.A. § 10-5-5(g)(1) and (2), Georgia Regulation 590-4-5-.04.  The Commissioner also allows notice filings for SEC-registered securities, O.C.G.A. § 10-5-9(5) and Georgia Regulation 590-4-2-.02; SEC Regulation A, B, E and F filings, O.C.G.A. § 10-5-9(5) and Georgia Regulation 590-4-5-.02; and Uniform Limited Offering Exemption (ULOE) Regulation D Rule 505 filings, O.C.G.A § 10-5-9(16) and Georgia Regulation 590-4-5-.01. Generally, transactions involving securities offered and sold in compliance with federal rule 701, adopted under subsection 3(b) of the Securities Act of 1933, 17 CFR § 230.701 (2004) are exempt from the registration provisions of O.C.G.A. § 10-5-5, provided certain conditions and limitations are met, Georgia Regulation 590-4-5-.03. ALL REFERENCES TO THE SECURITIES DIVISION MEAN THE GEORGIA SECURITIES DIVISION.

Security Offerings/Disclosure Review

Registration by Qualification
Registration by Notification
Small Issue Registration
Nonprofit Issuer Registration


Notice Filings/No Disclosure Review

Federal Covered Securities Mutual Funds & Unit Investment Trusts
Federal Covered Securities Regulation D Rule 506


Other Types of Securities Filings

SEC Registered/Coordinated Securities
SEC Exempt/Coordinated Securities (Regulation A,B,E,F)
Uniform Limited Offering Exemption (ULOE) (Regulation D Rule 505)
Limited Compensatory Benefit Plan (Rule 701)
Exempt Securities and Transactions


Additional Items of Interest

 Statutes and Regulations
Frequently Asked Questions

Security Offerings/Disclosure Review

In Georgia, the following types of registration are subjected to disclosure review: Registration by Qualification [O.C.G.A. § 10-5-5(b),(c)]; Registration by Notification [O.C.G.A. § 10-5-5(d)]; Small Issue Registration [O.C.G.A § 10-5-5(e)]; and Nonprofit Issuer Registration [O.C.G.A. § 10-5-5(f).]


Registration by Qualification [O.C.G.A. § 10-5-5(b),(c)]: A security may be registered by qualification under the terms provided in O.C.G.A. § 10-5-5(b) by filing a registration statement and the necessary supporting documentation. The registration statement shall be deemed effective only as to the securities specified. The requirements for filing a registration by qualification are listed in O.C.G.A. § 10-5-5(b),(c) and §10-5-6. The filing fee is one-twentieth of one percent of the maximum aggregate offering price of the registered securities offered in Georgia, but the fee shall not be less than $250.00. O.C.G.A. § 10-5-6(a).  Below is a list of certain document forms that are provided by the Commissioner for the user’s convenience, and that must be filed in a Registration by Qualification issue.  Additional documents such as financial statements, prospectus or offering memorandum, professional consents, material contracts, securities specimen, escrow agreements must be prepared and submitted with the filing. Please consult O.C.G.A. § 10-5-5  and § 10-5-6 for filing requirements.

 

  • Please be aware that an escrow agreement may be necessary. See Georgia Regulation 590-4-3-.01. Financial statements prepared in accordance with generally accepted accounting principles are required as part of the prospectus or offering memorandum. One should review the financial statement requirements under O.C.G.A. § 10-5-5(c)(1)(o).

  • Every renewal shall be treated as a new filing. Accordingly, every renewal shall require the same documentation as required for an additional filing, along with a renewal fee of $100.00.


Registration by Notification [O.C.G.A. §10-5-5 (d)]: Any issuer of securities that has been in continuous operation for at least five (5) years may register securities by notification, subject to meeting the statutory requirements under O.C.G.A. § 10-5-5(d).  Issuers with a proven track record in relation to the amount of securities offered may register by notification. The requirements for filing a registration by notification are listed in O.C.G.A. § 10-5-5(d). The filing fee is one-twentieth of one percent of the maximum aggregate offering price of the registered securities offered in Georgia, but the fee shall not be less than $250.00, O.C.G.A. § 10-5-6(a). Below is a list of certain form documents that are provided by the Commissioner for the issuer’s convenience and that must be filed in a Registration by Notification issue.  Additional documents such as financial statements, stock specimen, professional consents, and prospectus or offering memorandum must also be filed. Please consult O.C.G.A. § 10-5-3(d) for more information.

 

  • Financial statements prepared in accordance with generally accepted accounting principles are required as part of the prospectus or offering memorandum. One should review the financial statement requirements under O.C.G.A. § 10-5-5(d).

  • Every renewal shall be treated as a new filing. Accordingly, every renewal shall require the same documentation as required for an additional filing, along with a renewal fee of $100.00.


Small Issue Registration [O.C.G.A. §10-5-5 (e)]: This type of registration is used to register securities which meet the following requirements: (1) the aggregate amount of the total offering price is less than one million dollars as calculated under Georgia Regulation 590-4-3-.12; or (2) the aggregate number of purchasers does not exceed fifty for any twelve month period. The filing fee is one-twentieth of one percent of the maximum aggregate offering price of the registered securities offered in Georgia, but the fee shall not be less than $250.00. O.C.G.A. § 10-5-6(a).  An additional requirement could be the filing of an escrow agreement with the Commissioner. See Georgia Regulation 590-4-3-.01.  Below is a list of certain form documents that are provided by the Commissioner for the issuer’s convenience and that must be filed in a Small Issue Registration.  Additional documents such as financial statements, stock specimen, professional consents, and prospectus or offering memorandum must also be filed. Please consult O.C.G.A. § 10-5-5(d) for more information.

 

  • Additional documents such as financial statements, prospectus or offering memorandum, securities specimen, professional consents, material contracts, escrow agreements and underwriting agreements must be prepared and filed with the Commissioner.

  • Financial statements prepared in accordance with generally accepted accounting principles are required as part of the prospectus (offering memorandum). One should review the financial statement requirements under O.C.G.A. § 10-5-5(e).

  • Every renewal shall be treated as a new filing. Accordingly, every renewal shall require the same documentation as required for an additional filing, along with a renewal fee of $100.00.


Nonprofit Issuer Registration [O.C.G.A. §10-5-5 (f)]: Nonprofit issuers are persons or firms operating not for private profit or operating such that no part of the net earnings goes to the benefit of any person, private stockholder, or individual. A nonprofit issuer may register its securities, provided it meets the statutory requirements  under O.C.G.A. §10-5-5(f). There is no filing fee for nonprofit registration. In addition, an escrow agreement may need to be filed with the Commissioner. See Georgia Regulation 590-4-3-.07. In most instances a recorded trust indenture is required to be filed with the Commissioner prior to the securities issue becoming effective. See Georgia Regulation 590-4-3-.07(3). Additional documents such as financial statements, stock specimen, professional consents, and prospectus or offering memorandum must also be filed with the Commissioner. Please consult O.C.G.A § 10-5-5(f) for more information. Additionally, appraisal use related to real property securing mortgage bonds, is restricted pursuant to Georgia Regulation 590-4-3-.07(5).

 

  • Financial statements prepared in accordance with generally accepted accounting principles are required as part of the prospectus or offering memorandum. One should review the financial statement requirements under O.C.G.A. § 10-5-5(f).

  • Every renewal shall be treated as a new filing. Accordingly, every renewal shall require the same documentation as required for an additional filing.

 

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Notice Filings/No Disclosure Review


Federal Covered Securities: Mutual Funds or Unit Investment Trusts / Federal Securities Act of 1933 Section 18(b)(2): [O.C.G.A. §10-5-5(g)(1)]: A mutual fund or unit investment trust offered by an investment company is a federally covered security under Section 18(b)(2) of the federal Securities Act of 1933. The registration statement, exhibits, prospectus, and fiscal year information are not required to be filed with the Commissioner. The notice filing is effective for a period of fourteen (14) months and may be renewed by filing, prior to expiration, the renewal notice form (sent from the Commissioner) together with a renewal fee of $100.00 for each mutual fund or unit investment trust renewed. A cover letter referencing the name of the issuer and the state identification number is accepted in lieu of returning the renewal notification form. See O.C.G.A. §10-5-5(g)(1)(a).

Mutual Fund/Unit Investment Trust Notice Filing Requirements are:

  • Filing Fee of $250.00 (pre-printed check payable to Secretary of State)

  • Completed Form “NF” as filed with the SEC (stamped signatures are acceptable)

  • Manually signed consent form (Consent to Service of Process (Form 6 or U-2))

  • NOTE: Georgia is a “Trust” state and does not need information on addition, deletion, or name change for a “portfolio”, “class”, or “series”.


Federal Covered Securities: Regulation D Rule 506 / Federal Securities Act of 1933 Section 18(b)(3), (4) [O.C.G.A. §10-5-5 (g)(2) and Georgia Regulation 590-4-5-.04]: Issuers using the private offering exemption of Rule 506 of Regulation D must submit a notice filing to the Commissioner. With respect to a Regulation D Rule 506 offering, all of the above-referenced items must be received by the Commissioner not later than 15 days after the first sale of securities in Georgia. The notice filing is effective for a period of 12 months and may be renewed by filing, prior to expiration, a renewal notice form (sent from the Commissioner) together with a renewal fee of $100.00. A cover letter referencing the name of the issuer and the state identification number is accepted in lieu of returning the renewal notification form. See O.C.G.A. §10-5-5(g)(2)and Georgia Regulation 590-4-5-.04.

The Regulation D Rule 506 Notice Filing Requirements are:

  • Filing Fee of $250.00 (pre-printed check payable to Secretary of State)

  • Copy of Form D as filed with the SEC (original signatures NOT required)

  • Manually signed consent form (Consent to Service of Process (Form 6 or U-2))

  • NOTE: Issuer name must be consistent on all documents filed.

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Other Types of Securities Filings
 

SEC Registered/Coordinated Securities [O.C.G.A. §10-5-9(5)]: Transactions in securities with statements registered effectively with the SEC under the federal Securities Act of 1933 may be notice filed in Georgia under O.C.G.A. §10-5-9(5) and Georgia Regulation 590-4-5-.02. Except as noted below, all requirements set forth in O.C.G.A. 10-5-9(5) and Rule 590-4-5-.02 must be met for a valid notice filing. The Commissioner will issue acknowledgement of the filing, which will expire in fourteen (14) months. The SEC registered security may be renewed, prior to its expiration, by paying a filing fee of $100.00 and returning the renewal notification form (sent from the Commissioner). A cover letter referencing the name of the issuer and the state identification number is accepted in lieu of returning the renewal notification form.  Exhibits, articles of incorporation, and by-laws of the issuer are not required for filing.

SEC Registered/Coordinated Securities Filing Requirements are:


SEC Exempt/Coordinated Securities (A, B, E, F) [O.C.G.A. § 10-5-9-(5)]: SEC exempt securities [O.C.G.A. §10-5-9 (5)]. Transactions in securities exempt from registration under the federal Securities Act of 1933, Regulation A, B, E, or F may be notice filed in Georgia under O.C.G.A. §10-5-9(5) and Georgia Regulation 590-4-5-.02. Except as noted below, all requirements set forth in Georgia under O.C.G.A. §10-5-9(5) and Georgia Regulation 590-4-5-.02 must be met for a valid notice filing. The non-refundable filing fee is $250.00. The Commissioner will issue acknowledgement of the filing, which will expire in fourteen (14) months. The SEC exempt security may be renewed, prior to its expiration, by paying a filing fee of $100.00 and returning the renewal notification form (sent from the Commissioner.) A cover letter referencing the name of the issuer and the state identification number is accepted in lieu of returning the renewal notification form.  Exhibits, articles of incorporation, and by-laws of the issuer are not required for filing.

SEC Exempt/Coordinated Securities (A,B,E,F) Filing Requirements are:


Uniform Limited Offering Exemption (ULOE) Regulation D Rule 505 [O.C.G.A §10-5-9(16)]: Transactions involving securities sold in compliance with Rules 501, 502, 503,and 505, of the Securities and Exchange Commission Regulation D are exempt from registration in Georgia under O.C.G.A. §10-5-9(16). However, a notice filing must be made with the Commissioner prior to sale in Georgia. Except as noted below, all requirements set forth in O.C.G.A. §10-5-9(16) and Georgia Regulation 590-4-5-.01 must be met for a valid notice filing. The non-refundable filing fee is $250.00. The notice filing is effective for a period of 12 months and may be renewed by filing, prior to expiration, the renewal notice form (sent from the Commissioner) together with a renewal few of $100.00. A cover letter referencing the name of the issuer and the state identification number is accepted in lieu of returning the renewal notification form. See Georgia Regulation 590-4-5-.01.

The Rule "505" Notice Filing Requirements are:

  • "Pre-register" - must be filed prior to any sales made in Georgia

  • Filing Fee of $250.00 (pre-printed check payable to Secretary of State)

  • Completed Form "D" (Note: State Signature Page must be manually signed and page seven (7), the "Appendix," must be completed for Georgia)

  • Manually signed consent form (Consent to Service of Process (Form 6 or U-2))

    •

  • If sales will be made to "Non-accredited" Investors, a copy of the Private Placement Memorandum is required

  • NOTE: Issuer name must be consistent on all documents filed

Regulation D Rule 504 Filings are not covered by ULOE. Regulation D, Rule 504 issues must be filed for registration under O.C.G.A §10-5-5(e) and are subject to full disclosure review.


Limited Compensatory Benefit Plan Generally, transactions involving securities offered and sold in compliance with federal rule 701, adopted under subsection 3(b) of the Securities Act of 1933, 17 CFR § 230.701 (2004) are exempt from the registration provisions of O.C.G.A. § 10-5-5, provided certain conditions and limitations are met, Georgia Regulation 590-4-5-.03. ALL REFERENCES TO THE SECURITIES DIVISION MEAN THE GEORGIA SECURITIES DIVISION.

Effective January 10, 2005, Rule 701 (Limited Compensatory Benefit Plan) filings are no longer required in the state of Georgia if stated conditions are met pursuant to Rule 590-4-5-.03.


Exempt Securities (O.C.G.A. § 10-5-8)/Transactions (O.C.G.A. §10-5-9): As previously noted, some securities may be sold in Georgia without a registration requiring a disclosure review or without a notice filing. These securities and transactions are called exempt securities or transactions. The exempt securities and exempt transaction provisions are contained in O.C.G.A. §10-5-8; §10-5-9 respectively.  Unless a specific statutory or regulatory requirement provides otherwise, these exemptions under O.C.G.A. §10-5-8, §10-5-9 are self-executing. Some of the more common exempt transactions and securities are as follows.

Secondary Trading See O.C.G.A. §10-5-9(3) and (4)
Listed Securities See O.C.G.A. §10-5-8(8)
Government Securities See O.C.G.A. §10-5-8(1) and (2)
Institutional Investor Exemption See O.C.G.A. §10-5-9(7)
Existing Security Holders See O.C.G.A. §10-5-9(8)
Employee Plans See O.C.G.A. §10-5-9(9)
Merger Transactions See O.C.G.A. §10-5-9(12)
Limited Offering to Fifteen (15) or less investors in a twelve (12) month period See O.C.G.A. §10-5-9(13)

Note: Please note that the above is not exhaustive of all the exempt securities and transactions, but is provided as a convenience to the reader.

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Statutes and Regulations

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The above listing includes forms available online, but is not an all-inclusive listing of forms required for registration or notice filings.  Please refer to OCGA §10-5-5, §10-5-8, §10-5-9, and State of Georgia Rule 590-4-5 et. seq.

Frequently Asked Questions

1. In connection with unit investment trusts or notice filing requirements, does Georgia register portfolios or series separately?

No, Georgia registers the entire Trust. Any series, fund, or portfolio included in the Trust is/are effective upon receipt as long as the Trust is effective and the issuer complies with the statutory or regulatory requirements.

 

2. What is the Rule Number for a “No Action Letter”?

Georgia Regulation 590-4-1-.03.

 

3. What is the Section Number for a “Rescission Offer”?

O.C.G.A. §10-5-14(d)- For statutory requirements, no Georgia form exists; rescission offers must be registered with the Securities Division.

 

4. What is the definition of a “Sale”?

See the definition of “Sale” at O.C.G.A. §10-5-2.

 

5. Does Georgia register Secondary Trading?

No. See O.C.G.A. §10-5-9(3)(4); “Self-executing Exemption”.

 

6. Where can I get information on Georgia Issued Bonds?

Refer to the “Georgia State Financing and Investment Commission" - Phone Number: (404) 656-2174

 

7. Is Georgia a “Test the Waters” state?

No.

 

8. What is the legal “Age of Majority”?

Eighteen (18) years of age.

 

9. Is Georgia a “Merit Review” state?

No. Georgia is a “Disclosure” state.

 

10. Does the Commissioner oversee variable annuities?

Variable annuities regulated under Title 33 of the O.C.G.A. and issued by a life insurance company licensed to do business in Georgia are not securities, and the Commissioner does not regulate them. Refer to “Title 33” of the Georgia Code. See also O.C.G.A. §10-5-2(a)(26).

 

11. On a Form U-2 (or Georgia Form 6), who should be appointed as the “Agent of Process”?

The Commissioner of Securities (will also accept “Secretary of State”)

 

12. On a Form U-2 (or Georgia Form 6), what goes in the first line as the “Undersigned”?

The name of the “Issuer”, which must be exactly the same on all documents filed.

 

13. If the issuer is a registered Georgia Corporation on file with the Georgia Corporations Division, is a signed consent (U-2) required with the initial securities filing?

Yes. The Corporations Division is a separate Division from the Securities Division. A manually signed Consent is required. Once an Issuer files, if an additional filing is made under the exact same name, the filer can reference the U-2 already on file and will not be required to additionally file this form as long as the prior filing does not exceed five (5) years from date of the additional filing(s).

 

14. When is a Form U-2 (or Georgia Form 6) not required in a securities filing?

If the issuer has previously registered with the Commissioner, as long as the previously registered name is exactly the same as the current name and registration is not prior to five (5) years.

 

15. Who should I make my check payable to when making securities filings?

Personal or company checks, certified checks, or money orders are acceptable and should be made out to the Secretary of State (Also acceptable: Securities Division)

NOTE: The following are NOT acceptable:

  • Checks made payable to the State of Georgia (must specify Division)

  • Checks made payable to the Department of Banking and Finance

  • If an address is underneath the pay to line, it must be the address of the Securities Division

Checks should be pre-printed and have the pre-printed name, address, check number, and account number.
DO NOT SEND CASH.


16. Does Georgia have a de minimus transactional exemption for certain securities issues?

Yes, see O.C.G.A. §10-5-9(13), for the issuance or sale of securities where the aggregate number of persons in Georgia purchasing such securities during a twelve (12) month period does not exceed fifteen (15) persons. Please note that the “integration” aspects of the transactions are reviewed. O.C.G.A. §10-5-9(13) is a self-executing exemption. Also, this transactional exemption is not available for general or public solicitations or advertisements. Additionally, the stock certificates or other documents representing or evidencing the securities must contain the proper “legend”. Finally, the purchaser must execute a statement to the effect that the securities have been purchased for investment for his/her own account. Failure to strictly comply with the requirements of O.C.G.A. §10-5-9(13) could disqualify the issuer from the exemption and constitute the offer or sale of an unregistered security.

 

17. Does Georgia require a filing fee for an amendment?

No.

 

18. When is an amendment required?

When a change occurs in any of the following categories:

  • Name of issuer [also requires an amended Form U-2.];

  • Address of issuer;

  • Contact person change and/or contact address change; or

  • Increase or decrease in total aggregate amount currently reflected with the Securities Division.

NOTE: The item being amended should be clearly specified on the cover letter submitted with amended documents.

 

19. Does Georgia consider viatical investments and life settlement investments to be securities?

Yes. See O.C.G.A. §§ 10-5-2(a)(32), 10-5-2(a)(32).

 

20. Are there any requirements relating to the sale of viatical investments and life settlement investments in Georgia?

Yes. See  O.C.G.A. §§ 10-5-12(q), 10-5-8(12).

 

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Please note: The Securities Division posts this material for the convenience of its users. This material does not necessarily include all of the information and forms relevant for the filing, registration or renewal of entities or products regulated by the Securities Division. A user of the information and forms provided on this Web page should review applicable Georgia law in order to determine whether the user is in compliance with the various filing, registration or renewal requirements. The information contained in this website does not constitute legal advice. The Commissioner encourages all interested individuals to consult their own attorneys should they have questions regarding legal interpretations of Georgia Securities statutes or regulations.