37-5B-5.   Notice filing provisions. An initial application for the notice filing of a franchise shall be made by filing with the director of the Division of Securities a franchise notice filing application and one clean copy of the disclosure document and consent to service of process, accompanied by a fee of two hundred fifty dollars.

     If after considering identified conditions and events and management's plans, the auditor concludes that there is substantial doubt about the franchisor's ability to continue as a going concern for a reasonable period of time, the director shall be notified by separate letter as to the going concern issue with the notice filing application.

     After a notice filing becomes effective, the applicant has a continuing obligation to notify the director of a going concern within fifteen days after the auditor concludes there is a going concern.

     Except as otherwise provided in this section, if no order or injunction pursuant to § 37-5B-41 or 37-5B-48 is in effect, and the filing is complete as required by this section, a notice filing is effective upon receipt by the director.

     If the director requires the submission of additional information pursuant to § 37-5B-6 or 37-5B-36, and if no order or injunction pursuant to § 37-5B-41 or 37-5B-48 is in effect, the notice filing becomes effective on the fifteenth business day after the additional information is filed with and approved by the director, or at such earlier time as the director determines, unless the applicant requests postponement of the effectiveness of the notice filing. Business day means any day on which state offices are open for regular business.

     The notice filing of a franchise under this chapter expires one year following the date of receipt of the initial application, unless the director prescribes a different period by rule or order. A notice filing may be renewed for one year or a shorter period if designated by the director by filing an application to renew in the same manner as set forth in this section, except that the renewal fee is one hundred fifty dollars. Any filing received after the expiration date shall be treated as an initial filing subject to a filing fee of two hundred fifty dollars.

     An applicant may withdraw a notice filing if the applicant files a written request for withdrawal with the director. Withdrawal is effective fifteen days from the day on which the withdrawal request is filed unless a shorter period is designated by the director.

     The director may by rule or order construe any public offering, disclosure document, or similar statement which complies with the requirements of any federal law or administrative rule or with the law of any other state requiring substantially the same disclosure of information as is required by this chapter to be in full or partial compliance with this section.

     The director may by rule or order provide that any information required in the disclosure document need not be included by any class of franchisors if the director finds that the information is inappropriate to the class and that disclosure adequate for the protection of prospective franchisees is otherwise included within the disclosure document.

     The director may accept any disclosure document or other document filed with the director in an electronic format that is readily accessible by the Division of Securities' then existing electronic systems and in a format that can be downloaded, printed, or otherwise maintained as a record for future reference. If the director accepts electronic filings, the director shall publish a notice on the division's website stating the acceptance of electronic filing and the electronic format to be used.

     If the franchisor is unable to demonstrate to the director the franchisor's financial ability to fulfill its initial obligations to franchisees, the director may require an escrow of funds paid by the franchisee to the franchisor or its affiliate until the franchisor performs its initial obligations and the franchisee has commenced operations. The director may allow alternatives to escrow depending upon the various facts presented on a case by case basis.

Source: SL 2008, ch 203, § 5.

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