Current through Register Vol. 63, No. 9, September 1, 2024
Unless otherwise specified in this rule, all separate sales
that are a part of the same SOAR or SCOR Offering shall be counted and included
as securities sold under the SOAR or SCOR Offering:
(1) A separate sale of securities within or
without this state will be included as part of the same SOAR or SCOR Offering
if, after considering the following elements, there are compelling reasons to
treat the sale as part of the same offering. The elements to be considered are:
(a) Whether the sales are part of a single
plan of financing;
(b) Whether the
sales involved issuance of the same class of security;
(c) Whether the sales are made at or about
the same time;
(d) Whether the same
type of consideration is received; and
(e) Whether the sales are made for the same
general purpose.
(2)
Exclusion of Certain Employee Benefit Plans. Offers and sales of securities
under an Employee Benefit Plan as defined by OAR
441-065-0070(5)
are not included as sales under this rule.
(3) Safe harbor by absence of sales. Sales of
securities made more than six months prior to the effective date of
registration of a SOAR or SCOR Offering, or more than six months after the
termination of a SOAR or SCOR Offering will not be considered to have been made
as part of the same SOAR or SCOR Offering under this rule.
(4) Safe harbor for "discrete offerings" of
partnership interests. Offerings of interests in a partnership shall not be
included as securities sold under the same offering under a SOAR or SCOR
Offering, even where there is a common sponsor or affiliate involved in
offerings of interests in another entity, if all of the conditions of
subsections (4)(b) through (f) of this rule are satisfied:
(a) As used in this section, the following
definitions are applicable:
(A) A
"partnership" includes a general partnership, limited partnership, joint
venture or other similar entity. A "partnership" includes existing entities as
well as those that are to be formed in the future;
(B) A "sponsor" is a promoter or any person
directly or indirectly instrumental in organizing the partnership in whole or
in part, or any person who will manage or participate in the management of the
partnership. A "sponsor" includes a general partner and affiliate of the
sponsor. A "sponsor" does not include independent third parties such as
attorneys, accountants, and underwriters whose only compensation is for
professional services rendered in connection with offering of interests in the
partnership.
(b)
Separate entity. The partnership must:
(A) Be
a separate legal entity;
(B) Have
separate books and records;
(C) Not
commingle funds of the partnership with those of the sponsor or any other
entity having the same sponsor.
(c) Economic independence. The partnership at
the time the interests are sold must have the independent ability 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, then the partnership does not have the
independent ability to meet its primary investment objective.
(d) Application of proceeds. No material
portion of the gross offering proceeds of the partnership shall be invested in
properties where another entity having a common sponsor has also invested and
continues to hold invested, a material portion of its gross offering
proceeds.
(e) Unspecified programs.
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 safe harbor 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 its gross offering proceeds prior to
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 its gross offering proceeds. This paragraph
does not apply if the investment to be made by the other entity is fully
identified.
(f) An
offering of interests in a partnership that is formed to engage in sale and
leaseback transactions does not qualify under this safe harbor if the ultimate
intended lessee of the assets in which the partnership invests is a sponsor of
the partnership.
(5)
Safe harbor by order of registration:
(a)
Applicants desiring the Director's concurrence of non-integration under section
(1) of this rule or applicability of the safe harbors in section (3) or (4) of
this rule shall file a written request with their application for registration.
A request must contain an analysis of the law applicable to the
facts;
(b) The Director may take
the position that further action is required or decline to take a position if
the analysis is not sufficient to make a determination. If the Director
concludes that the separate sales should not be integrated, the Director will
issue an Order or Registration that expressly excludes those sales;
(6) No presumptions related to
integration under (1) are created by the non-availability of safe harbors under
section (3), (4), or (5) of this rule.
Statutory/Other Authority: ORS
59.065
Statutes/Other Implemented: ORS
59.065
