New Generation Processing Entity Exemption

PURPOSE: This rule complies with the Missouri Securities Act of 2003 and prescribes the qualifications for the exemption under the Missouri Securities Act of 2003 for securities issued by and representing an interest in a new generation processing entity. (1) Definition. A “new generation processing entity” shall be defined as an “eligible new generation processing entity” as defined under section 348.432.1(4), RSMo which defines the term as a partnership, corporation, cooperative, or limited liability company organized or incorporated pursuant to the laws of this state consisting of not less than twelve (12) members, approved by the Missouri Agricultural and Small Business Development Authority, for the purpose of owning or operating within this state a development facility or a renewable fuel production facility in which producer members: (A) Hold a majority of the governance or voting rights of the entity and any governing committee; (B) Control the hiring of management; and (C) Deliver agricultural commodities or products to the entity for processing, unless processing is required by multiple entities. (2) Securities Exemption. The commissioner, pursuant to the provisions of section 409.2-203, RSMo, exempts from the registration requirements of section 409.3-301, RSMo securities issued by and representing an interest in a new generation processing entity if: (A) A notice filing by the new generation processing entity is made with the commissioner that consists of the following: 1. A completed Form SE-1, Statement of Claim for the Exemption of Securities of a New Generation Processing Entity; 2. A completed Form U-2, Consent to Service of Process; 3. A completed Form U-2A, Uniform Form of Corporate Resolution; 4. A copy of the prospectus or offering document that shall have a minimum disclosure consisting of the following: A. The name and address of the issuer; B. The type of security being issued; C. The total amount of securities being issued; D. A risk factors section; E. A description of the business or proposed business; F. An itemized use of proceeds; G. A plan of distribution section; H. A summary of capitalization; and I. Historical financial statements of the issuer for the past three (3) fiscal years or since the issuer’s inception, whichever is shorter, that are in conformity with generally accepted accounting principles (GAAP) and have been reviewed by a certified public accountant. If the balance sheet in the above financial statements is more than one hundred twenty (120) days old on the date of making the notice filing or if the issuer has not completed its first fiscal year, reviewed financial statements not more than one hundred twenty (120) days old shall be included and in conformity with GAAP; 5. A copy of the bylaws, operating agreement or similar document; 6. A copy of any advertising materials or any summaries of the offering document to be used in the offer or sale of the securities in Missouri; 7. A copy of any underwriting or selling agreements; 8. A copy of the subscription agreement; and 9. A filing fee of one hundred dollars ($100); (B) All proceeds raised by the new generation processing entity from the sale of securities pursuant to this exemption are held in escrow until the Missouri Agricultural and Small Business Development Authority provides final approval to the new generation processing entity for the new generation cooperative incentive tax credits. If the Missouri Agricultural and Small Business Development Authority does not provide final approval to the new generation processing entity for the new generation cooperative incentive tax credits, then the proceeds raised by new generation processing entity from the offer and sale of its securities under this exemption will be returned to investors. (3) The securities of the new generation processing entity qualifying for the exemption under this regulation are exempt when ordered by the commissioner. (4) Effective Period. The exemption under this regulation for the securities issued by or representing an interest in a new generation processing entity is effective for one (1) year from the date that the securities were ordered to be exempt by the commissioner. (5) Amendments. The new generation processing entity shall file all amendments with the division in which there has been a material change to documents previously filed with the division. The new generation processing entity shall file with the division all advertising materials to be used in the offer or sale of the securities exempt under this regulation. (6) Renewal. If the securities offering is not completed during the effective period, an issuer can renew the exemption by submitting to the commissioner a written request for renewal that includes any amendments to any documents filed with the notice filing and a fee of one hundred dollars ($100). The renewal needs to be received by the commissioner within thirty (30) days before the end of the one (1) year effective date. (7) Any new generation processing entity that meets the qualifications of the exemption under section 409.2-201(8), RSMo can rely on the exemption of section 409.2-201(8), RSMo and need not qualify for the exemption under this regulation. AUTHORITY: sections 409.2-203 and 409.6-605, RSMo Supp. 2003.* Emergency rule filed Aug. 11, 1978, effective Aug. 23, 1978, expired Dec. 21, 1978. Original rule filed Aug. 11, 1978, effective Feb. 11, 1979. Emergency amendment filed April 6, 1983, effective April 16, 1983, expired Aug. 14, 1983. Rescinded and readopted: Filed April 6, 1983, effective July 11, 1983. Amended: Filed Oct. 15, 1987, effective Jan. 29, 1988. Rescinded: Filed Nov. 8, 2001, effective June 30, 2002. Readopted: Filed Nov. 1, 2001, effective June 30, 2002. Emergency rescission and rule filed Aug. 26, 2003, effective Sept. 12, 2003, expired March 9, 2004. Rescinded and readopted: Filed Aug. 27, 2003, effective Feb. 29, 2004. *Original authority: 409.2-203, RSMo 2003 and 409.6-605, RSMo 2003.