§ 78D‑33.  Affirmative defense.

It shall be a defense in any complaint, information, indictment, any writ or proceeding brought under this Chapter alleging a violation of G.S. 78D‑2 based solely on the failure in an individual case to make physical delivery within the applicable time period under G.S. 78D‑1(5) or G.S. 78D‑4(a)(2) if the party asserting the defense sustains the burden of proof that:

(1) Failure to make physical delivery was due solely to factors beyond the control of the seller, the seller's officers, directors, partners, agents, servants or employees, every person occupying a similar status or performing similar functions, every person who directly or indirectly controls or is controlled by the seller, or any of them, the seller's affiliates, subsidiaries or successors; and

(2) Physical delivery was completed within a reasonable time under the applicable circumstances. (1989, c. 634, s. 1.)