Fairness Hearing Procedures
(1) The Director may decline to accept the filing of a plan pursuant to ORS 59.095 if the proponent of the plan is unable to establish a nexus with Oregon. That nexus must be established by showing:
(a) That the proponent of the plan is an entity with headquarters in Oregon;
(b) That the entity to be acquired or merged has its headquarters in Oregon; or
(c) That a minimum of 50% of the securities, claims or property interests to be exchanged are owned by persons who reside in Oregon.
(2) The proponent of the plan shall file:
(a) A Form U-1 registering all securities to be issued by the proponent;
(b) A copy of the merger agreement between the parties;
(c) A copy of the information statement to be submitted to the holders of the securities, claims or property interests to be exchanged;
(d) A copy of the Articles of Formation of the acquiring entity;
(e) A Form U-4 for each agent of the issuer, or the name and Central Registration Depository number of the broker-dealer to execute the securities transactions; and
(f) A filing fee for the total offering amount calculated pursuant to OAR 441-065-0001 and a fee in the amount set in OAR 441-175-0002 for each Form U-4 being filed.
(3) Following a preliminary review by the Director and resolution, if necessary, of any fairness or procedure issues raised by the Director, 30 days notice of the fairness hearing shall be given to all holders of the securities, claims or property interests to be exchanged. The proponent may request a shorter notice period of not less than 10 days, which request may not be unreasonably denied by the Director, provided the proponent demonstrates that all holders of the securities, claims or property interests to be exchanged:
(a) Are accredited investors as defined in OAR 441-035-0010; or
(b) Have been directly involved in the development of the plan, merger or acquisition negotiations.
(4)(a) The fairness hearing shall be conducted as an other than contested case pursuant to ORS Chapter 183 by a hearings officer designated by the Director at a location in Oregon designated by the hearings officer. With the consent of both parties to the merger or acquisition, the hearing may be conducted by telephone conference.
(b) The hearings officer may permit testimony of counsel, all interested parties to the exchange, and any holder of securities, claims or property interests to be exchanged who wishes to make a statement or raise questions. Any interested party who is unable to attend the hearing shall be permitted to participate by telephone or in writing.
(5) Any order issued concerning the plan of the proponent shall be dated effective as of the date of the hearing, unless issues were raised at the hearing which must be resolved, in which event the order shall be dated on the date when all such issues are satisfactorily resolved.
(6) The order issued shall make specific findings as to whether the plan is fair, just and equitable and free from fraud; and
(a) Approve the request as proposed by the proponent;
(b) Approve the request with conditions, limitation, or restrictions imposed by the Director; or
(c) Deny the request, provided the Director made findings that the plan is unfair, unjust or inequitable or not free from fraud. Notice of any denial issued under this subsection shall be provided by the Director, at the expense of the proponent, to all persons who were entitled to receive or who did receive notice of the hearing.
[ED. NOTE: Forms referenced are available from the agency.]
Stat. Auth: ORS 59.285
Stats. Implemented: ORS 59.095
Hist.: FCS 12-2001, f. 12-27-01, cert. ef. 1-1-02; FCS 2-2003(Temp), f. & cert. ef. 11-26-03 thru 5-21-04; FCS 1-2004, f. & cert. ef. 5-19-04
Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • firstname.lastname@example.org
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