61-1-26 - Scope of the act -- Service of process.
61-1-26. Scope of the act -- Service of process.
(1) Section 61-1-1, Subsection 61-1-3(1), Sections 61-1-7, 61-1-15.5, 61-1-17, and61-1-22 apply to persons who sell or offer to sell when:
(a) an offer to sell is made in this state; or
(b) an offer to buy is made and accepted in this state.
(2) Section 61-1-1, Subsection 61-1-3(1), and Section 61-1-17 apply to persons who buyor offer to buy when:
(a) an offer to buy is made in this state; or
(b) an offer to sell is made and accepted in this state.
(3) For the purposes of this section, an offer to sell or to buy is made in this state whetheror not either party is then present in this state, when the offer:
(a) originates from this state; or
(b) is directed by the offeror to this state and received at the place to which it is directed,or at any post office in this state in the case of a mailed offer.
(4) For the purposes of this section, an offer to sell or to buy is accepted in this statewhen acceptance:
(a) is communicated to the offeror in this state; and
(b) has not previously been communicated to the offeror, orally or in writing, outside thisstate, and acceptance is communicated to the offeror in this state, whether or not either party isthen present in this state, when the offeree directs it to the offeror in this state reasonably believingthe offeror to be in this state and it is received at the place to which it is directed or at any postoffice in this state in the case of a mailed acceptance.
(5) An offer to sell or to buy is not made in this state when:
(a) the publisher circulates or there is circulated on his behalf in this state any bona fidenewspaper or other publication of general, regular, and paid circulation which is not published inthis state, or which is published in this state but has had more than 2/3 of its circulation outsidethis state during the past 12 months; or
(b) a radio or television program originating outside this state is received in this state.
(6) Section 61-1-2 and Subsection 61-1-3(3), as well as Section 61-1-17 so far asinvestment advisers are concerned, apply when any act instrumental in effecting prohibitedconduct is done in this state, whether or not either party is then present in this state.
(7) (a) Every application for registration under this chapter and every issuer whichproposes to offer a security in this state through any person acting on an agency basis in thecommon-law sense shall file with the division, in such form as it prescribes by rule, an irrevocableconsent appointing the division or the director to be his attorney to receive service of any lawfulprocess in any noncriminal suit, action, or proceeding against him or his successor, executor, oradministrator which arises under this chapter or any rule or order hereunder after the consent hasbeen filed, with the same force and validity as if served personally on the person filing theconsent.
(b) A person who has filed such a consent in connection with a previous registration ornotice filing need not file another.
(c) Service may be made by leaving a copy of the process in the office of the division, butit is not effective unless the plaintiff, who may be the division in a suit, action, or proceedinginstituted by it, sends notice of the service and a copy of the process by registered mail to thedefendant or respondent at his last address on file with the division, and the plaintiff's affidavit of
compliance with this subsection is filed in the case on or before the return day of the process, ifany, or within such further time as the court allows.
(8) (a) When any person, including any nonresident of this state, engages in conductprohibited or made actionable by this chapter or any rule or order hereunder, and he has not fileda consent to service of process under Subsection (7) and personal jurisdiction over him cannototherwise be obtained in this state, that conduct shall be considered equivalent to his appointmentof the division or the director to be his attorney to receive service of any lawful process in anynoncriminal suit, action, or proceeding against him or his successor executor or administratorwhich grows out of that conduct and which is brought under this chapter or any rule or orderhereunder, with the same force and validity as if served on him personally.
(b) Service may be made by leaving a copy of the process in the office of the division,but it is not effective unless the plaintiff, who may be the division in a suit, action, or proceedinginstituted by it, sends notice of the service and a copy of the process by registered mail to thedefendant or respondent at his last-known address or takes other steps which are reasonablycalculated to give actual notice, and the plaintiff's affidavit of compliance with this subsection isfiled in the case on or before the return day of the process, if any, or within such further time asthe court allows.
(9) When process is served under this section, the court, or the director shall order suchcontinuance as may be necessary to afford the defendant or respondent reasonable opportunity todefend.
Amended by Chapter 160, 1997 General Session