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Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations declares an Offering Document approved for use in accordance with paragraph f1ii of this section, the Issuing Credit Union may then use that Offering Document in the offer and sale of the Subordinated Debt Notes. The Issuing Credit Union must file a copy of each of its Offering Documents with the NCUA within two business days after their respective first use.
g Filing of an Offering Document for offerings of Subordinated Debt exclusively to Entity Accredited Investors. An Issuing Credit Union that is offering Subordinated Debt exclusively to Entity Accredited Investors is not required to have its Offering Document approved for use by the NCUA under paragraph f of this section before using it to offer and sell the Subordinated Debt Notes. As described in this section, however, the Issuing Credit Union must file a copy of each of its Offering Documents with the NCUA within two business days after their respective first use.
h Material changes to any initial application or Offering Document1
Reapproval of initial application. If any material event arises or material change in fact occurs after the approval of the initial application by the NCUA, but prior to the completion of the offer and sale of the related Subordinated Debt Notes, then no person shall offer or sell Subordinated Debt Notes to any other person until an amendment to the Offering Document reflecting the event or change has been filed with and approved by the NCUA.
2 Reapproval of Offering Document.
If an Offering Document must be approved for use under paragraph f of this section, and any event arises or change in fact occurs after the approval for use of any Offering Document, and that event or change in fact, individually or in the aggregate, results in the Offering Document containing any untrue statement of material fact, or omitting to state a material fact necessary in order to make statements made in the Offering Document not misleading in light of the circumstances under which they were made, then no person shall offer or sell Subordinated Debt Notes to any other person until an amendment reflecting the event or change has been filed with and approved for use by the NCUA.
3 Failure to request reapproval. If an Issuing Credit Union fails to comply with paragraph h1 or 2 of this section, the NCUA may, at its discretion, exercise the full range of administrative remedies available under the FCU Act, including:
i Prohibiting the Issuing Credit Union from issuing any additional
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Subordinated Debt for a specified period; and/or ii Determining not to treat the Subordinated Debt as Regulatory Capital.
i Notification. Not later than 10
business days after the closing of a Subordinated Debt Note issuance and sale, the Issuing Credit Union must submit to the Appropriate Supervision Office:
1 A copy of each executed Subordinated Debt Note;
2 A copy of each executed purchase agreement, if any;
3 Any indenture or other transaction document used to issue the Subordinated Debt Notes;
4 Copies of signed certificates of Accredited Investor status, in a form similar to that in 702.406c, from all investors;
5 All documentation provided to investors related to the offer and sale of the Subordinated Debt Note other than any Offering Document that was previously filed with the NCUA; and 6 Any other material documents governing the issuance, sale or administration of the Subordinated Debt Notes.
j Resubmissions. An Issuing Credit Union that receives any adverse written determination from the Appropriate Supervision Office with respect to the approval of its initial application or any amendment thereto or, if applicable, the approval for use of an Offering Document or any amendment thereto, may cure any reasons noted in the written determination and refile under the requirements of this section. This paragraph j does not prohibit an Issuing Credit Union from appealing an Appropriate Supervision Offices decision under subpart A of part 746 of this chapter.
k Expiration of authority to issue Subordinated Debt. 1 Any approvals to issue Subordinated Debt Notes under this section expire two years from the later of the date the Issuing Credit Union receives:
i Approval of its initial application, if the Issuing Credit Union is offering Subordinated Notes exclusively to Entity Accredited Investors; or ii The initial approval for use of its Offering Document, if the Issuing Credit Union is offering Subordinated Debt Notes to any Natural Person Accredited Investors.
2 Failure to issue all or part of the maximum aggregate principal amount of Subordinated Debt Notes approved in the initial application process within the applicable period specified in paragraph k of this section will result in the expiration of the NCUAs
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approval. An Issuing Credit Union may file a written extension request with the Appropriate Supervision Office. The Issuing Credit Union must demonstrate good cause for any extensions, and must file the request at least 30 calendar days before the expiration of the applicable period specified in paragraph k of this section or any extensions granted under paragraph k of this section. In any such written application, the Issuing Credit Union must address whether any such extension poses any material securities law implications.
l Filing requirements and inspection of documents. 1 Except as otherwise provided in this section, all initial applications, Offering Documents, amendments, notices, or other documents must be filed with the NCUA electronically. The NCUA will publish on its website, http
www.NCUA.gov, the web address for electronic filings. Documents may be signed electronically using the signature provision in 17 CFR 230.402 Rule 402
under the Securities Act of 1933, as amended.
2 Provided the Issuing Credit Union filing the document has complied with all requirements regarding the filing in this section, the date of filing of the document is the date the NCUA receives the filing. An electronic filing that is submitted on a business day by direct transmission commencing on or before 5:30 p.m. Eastern Standard or Daylight Savings Time, whichever is then currently in effect, would be deemed received by the NCUA on the same business day. An electronic filing that is submitted by direct transmission commencing after 5:30 p.m. Eastern Standard or Daylight Savings Time, whichever is then currently in effect, or on a Saturday, Sunday, or Federal holiday, would be deemed received by the NCUA on the next business day. If an electronic filer in good faith attempts to file a document with the NCUA in a timely manner, but the filing is delayed due to technical difficulties beyond the electronic filers control, the electronic filer may request that the NCUA adjust the filing date of such document. The NCUA may grant the request if it appears that such adjustment is appropriate and consistent with the public interest and the protection of investors.
3 If an Issuing Credit Union experiences unanticipated technical difficulties preventing the timely preparation and submission of an electronic filing, the Issuing Credit Union may, upon notice to the Appropriate Supervision Office, file the subject filing in paper format no later
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