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10 Pa. Code § 203.186. Employee takeovers.

§ 203.186. Employee takeovers.

 (a)  Under section 203(r) of the act (70 P.S. §  1-203(r)), the Department finds that it is not in the public interest or necessary for the protection of investors to require the registration under section 201 of the act (70 P.S. §  1-201) of securities issued under an investment plan for employees of an existing person designed to purchase securities of a newly created person in transactions if:

   (1)  The proceeds from the sale of the securities will be used to purchase assets and operations of the existing person.

   (2)  The employees will preserve their jobs through their employment with the newly created person.

   (3)  The employees’ participation in the investment plan is not required as a condition of employment.

   (4)  The employees being solicited to purchase securities under the investment plan receive, at least 7 days before entering into a binding obligation to purchase or subscribe for the purchase of securities issued or to be issued under the investment plan:

     (i)   Written offering materials that fully and adequately disclose all material facts about the investment plan, including detailed risk factors explaining the potential loss of their investment.

     (ii)   An opinion of counsel that the security, when sold, will be legally issued, fully paid and nonassessable and, if a debt security, a binding obligation of the issuer.

   (5)  The prospective financial statements used in connection with soliciting the purchase of securities under the investment plan comply with §  609.010(c) (relating to use of prospective financial statements).

 (b)  The exemption contained in this section may not be available for a transaction entered into primarily to avoid the provisions of section 201 of the act.


   The provisions of this §  203.186 issued under the Pennsylvania Securities Act of 1972 (70 P.S. § §  1-101—1-704); amended under sections 202(g) and (i), 203(d), (i.1), (j) and (n)—(t), 204(a), 205(b), 207(g), (j.1) and (n), 209(b), 211(a) and (b), 504(d), 513, 603(a), 606(d) and 609(a) of the Pennsylvania Securities Act of 1972 (70 P.S. § §  1-202(g) and (i), 1-203(d), (i.1), (j) and (n)—(t), 1-204(a), 1-205(b), 1-207(g), (j.1) and (n), 1-209(b), 1-211(a) and (b), 1-504(d), 1-513, 1-603(a), 1-606(d) and 1-609(a)); section 202.C of the Department of Banking and Securities Code (71 P.S. §  733-202.C); and section 9(b) of the Takeover Disclosure Law (70 P.S. §  79(b)).


   The provisions of this §  203.186 adopted January 21, 1983, effective January 22, 1983, 13 Pa.B. 523; amended December 30, 1999, effective January 1, 2000, 30 Pa.B. 18; amended September 1, 2000, effective September 2, 2000, 30 Pa.B. 4551; transferred and renumbered from 64 Pa. Code §  203.186, December 14, 2012, effective December 15, 2012, 42 Pa.B. 7533; amended January 12, 2018, effective January 13, 2018, 48 Pa.B. 389. Immediately preceding text appears at serial pages (364689) to (364690).

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