Current through February 24, 2025
(a) All separate
sales of securities by an issuer that are a part of the same offering
registered under
3
AAC 08.501 -
3
AAC 08.505, or noticed under
3
AAC 08.506 are included as securities sold under the
same offering, except as otherwise provided in this section.
(b) In determining whether to treat separate
sales of securities inside or outside of this state as part of the same
offering, the administrator will consider whether the sales
(1) are part of a single plan of
financing;
(2) involve issuance of
the same class of security;
(3) are
made at or about the same time;
(4)
are made for the same type of consideration; and
(5) are made for the same general
purpose.
(c) A sale of
securities made more than six months before the effective date of registration
under 3 AAC 08.501 -
3
AAC 08.505, or of notice under
3
AAC 08.506, or more than six months after the
termination of the offering, is not included as a sale made as part of the same
offering under this section if sales of securities of the same or similar class
by the issuer do not occur during either six-month period. For purposes of this
subsection,
(1) the effective date of a
registration under
3
AAC 08.504 or
3
AAC 08.505 is the date a registrant is authorized to
sell securities under a certificate of registration issued by the
administrator;
(2) the effective
date of a notice under
3
AAC 08.506 is the date established under
3
AAC 08.506(b);
(3) the termination date of the offering
under 3 AAC 08.504,
3
AAC 08.505, or
3
AAC 08.506 is the earlier of the
(A) expiration date of a certificate of
registration in the case of an offering under
3
AAC 08.504 or
3
AAC 08.505, or a certificate of notice in the case of
an offering under
3
AAC 08.506; or
(B) date of last sale of
securities.
(d) An offering of an interest in a
partnership is not included as a security sold under the same offering under
3
AAC 08.504 or
3
AAC 08.506, even if a common sponsor or affiliate is
involved in an offering of interest in another entity, if the following
conditions are satisfied:
(1) the partnership
(A) must be a separate legal
entity;
(B) must maintain separate
books and records; and
(C) may not
commingle funds of the partnership with those of the sponsor or any other
entity having the same sponsor;
(2) the partnership, at the time the
interests are sold, must have an independent opportunity to meet its primary
investment objective; for purposes of this paragraph, the partnership does not
have an independent opportunity to meet its primary investment objective if the
partnership is substantially dependent on the creation, continued existence, or
economic results of investments of another entity having a common
sponsor;
(3) a material portion of
the gross offering proceeds of the partnership may not be invested in
properties where another entity having a common sponsor has also invested, and
continues to hold invested, a material portion of the other entity's gross
offering proceeds;
(4) an offering
that does not identify at least 50 percent of the assets in which the
partnership intends to invest does not qualify under this subsection if
(A) another entity with a common sponsor was
formed to conduct the same general type of activity and that entity has not
invested or committed the major portion of that entity's gross offering price
before commencement of this offering by the registering partnership;
or
(B) the sponsor creates a
simultaneous or subsequent offering through another entity to conduct the same
general type of activity before the registering partnership has invested or
committed for investment the major portion of the partnership's gross offering
proceeds; this subparagraph does not apply if the investment to be made by the
other entity is fully identified;
(5) an offering of interests in a partnership
that is formed to engage in sale and leaseback transactions does not qualify
under this subsection if the ultimate intended lessee of the assets in which
the partnership invests is a sponsor of the partnership.
(e) A person may request an order from the
administrator as to whether a transaction is exempt, under (b), (c), or (d) of
this section, from treatment under (a) of this section as a sale under the same
offering. To make that request, a person must file it with the person's
application for registration, setting out arguments and citations in support of
the request. For registrations under
3
AAC 08.504 and
3
AAC 08.505, and upon receipt of a properly filed
request, the administrator will include with the certificate of registration an
order as to whether separate sales will be integrated under this
section.
(f) If, under (e) of this
section, a person requests an order for an exemption under (c) or (d) of this
section, but not for an exemption under (b) of this section, an order that an
exemption is unavailable under (c) or (d) of this section does not raise a
presumption of integration under (b) of this section.
(g) Offers and sales of securities under an
employee benefit plan, as defined by
17 C.F.R.
230.405, are not included under (a) of this
section for purposes of integration. For purposes of this subsection, the
definition of "employee benefit plan" in
17 C.F.R.
230.405, as revised as of October 1, 1999, is
adopted by reference.
(h) In this
section,
(1) "partnership"
(A) includes a general partnership, limited
partnership, limited liability partnership, joint venture, or other similar
entity; and
(B) means a partnership
existing on May 24, 1984 or formed on or after that date;
(2) "sponsor"
(A) means a promoter or person directly or
indirectly instrumental in organizing the entity wholly or in part, or a person
who manages or participates in the management of the partnership;
(B) includes a general partner and affiliate
of the sponsor; and
(C) does not
include an independent third party whose only compensation is for professional
services rendered in connection with the offering of interests in the
partnership; for purposes of this subparagraph, "independent third party"
includes an attorney, accountant, or underwriter.
Authority:AS
45.55.110
AS
45.55.950
