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3
AAC 08.500. CREATION
OF CLASSIFICATIONS.
The
following classifications
of transactions in securities
are created, to which 3
AAC 08.500 – 3 AAC
08.540 apply:
(1)
an offering relying
on "Regulation
D" as adopted
by the SEC in 17 C.F.R.
230 and 239;
(2)
an offering relying on
another federal regulation
or statute and that otherwise
meets the requirements
of 3 AAC 08.500 – 3
AAC 08.540.
3
AAC 08.501. DEFINITIONS SPECIFIC
TO "REGULATION D" PROCEDURE.
(a)
As used in 3 AAC 08.500 – 3
AAC 08.540 the definitions
of the following terms
are contained in 17 C.F.R.
230.501, as revised as
of October 1, 1999, and
are adopted by reference:
(1) "accredited
investor;"
(2) "affiliate;"
(3) "aggregate
offering price;"
(4) "business
combination;"
(5) "calculation
of number of purchasers;"
(6) "executive
officer;"
(7) "issuer;"
(8) "purchaser
representative."
(b)
Unless the context indicates
otherwise, in 3 AAC 08.501 – 3
AAC 08.540,
(1) "closing
a sale" means
that transaction under
which the offeror becomes
legally bound to sell
the securities;
(2)
repealed ___/___/2000
(3) "permitted
Alaska purchaser" means
a person who, at the
time the person becomes
a purchaser of the
securities, comes within
any of the following
categories or whom
the issuer reasonably
believes comes within
any of the following:
(A)
a natural person
who purchases, in
this state, at least
$10,000 of the securities
being offered, if
the purchaser’s
total purchase does
not exceed five percent
of the purchaser’s
net worth at the
time of purchase;
the purchase must
be only for cash,
marketable securities,
or both; the net
worth of the purchaser’s
spouse may be included
for the purpose of
this subparagraph;
(B)
a natural person
who had an individual
income in excess
of $70,000 in each
of the two most recent
years and who reasonably
expects an income
in excess of $70,000
in the current year,
if the amount purchased
in this state does
not exceed 10 percent
of the person’s
individual income
for the most recent
year; the purchase
must be only for
cash, marketable
securities, or both;
the income of a spouse
may be included for
the purpose of this
subparagraph;
(C)
a limited partnership,
limited liability
partnership, limited
liability company,
partnership, corporation,
trust, or other entity
in which each of
the equity owners,
or holders of beneficial
interests in the
case of a trust,
satisfies the requirements
of (A) or (B) of
this paragraph, if
the amount invested
by the entity would
be allowable as an
individual purchase
by each person under
(A) or (B) of this
paragraph.
(c)
A person who is not a
registered agent, a registered
state investment adviser,
or a federal covered
adviser in compliance
with AS 45.55.040(h)
and who acts as a purchaser
representative is not
considered an agent,
state investment
adviser, or federal covered
adviser if the activity
as purchaser representative
is merely an incidental
part of the person’s
usual activities or occupation.
3
AAC 08.503. REGISTRATION AND
REPORTING OF "REGULATION
D" OFFERINGS.
(a)
An applicant registering
under the provisions
of 3 AAC 08.500 – 3
AAC 08.540 is only required
to file the registration
statement on State of
Alaska Form 08-101, any
items required by the
registration statement,
any items requested by
the staff, and the fee
required by in 3 AAC
08.920(a)(5). If additional
documents, including
the offering documents,
are filed with the administrator,
the administrator will
treat the filing as an
application for registration
by qualification.
(b)
Sales of an offering
registered under 3 AAC
08.500 – 3 AAC 08.505
may be made only by a
broker-dealer and salesperson
registered under this
chapter or by other persons
exempted from registration
by AS 45.55 or this chapter.
(c)
Notwithstanding the requirements
of (b) of this section,
an issuer or sponsor
of an issuer to be formed
may register up to five
salespersons as agents
who are exempt from the
examination requirement
of 3 AAC 08.011(h)(2).
To register an agent,
the issuer or sponsor
of an issuer must file
an application for registration
in accordance with 3
AAC 08.011(h)(1) and
pay a fee in accordance
with 3 AAC 08.015(a)(1)(B).
A salesperson may not
be registered to more
than one person at a
time without complying
with the dual registration
provisions of 3 AAC 08.010(e)-(f).
(d)
The registrant shall,
for three years after
the closing of the offering,
maintain and keep open
for inspection by the
administrator or his
designee inside or outside
of this state
(1)
all offering materials;
(2)
records relating to
purchaser representatives
used, and materials
and data relied upon
to determine the qualifications
of the purchaser representatives;
(3)
records relating to
purchasers, and materials
and data relied upon
to determine the qualifications
of the purchasers;
(4)
records relating to
securities sales after
the closing of the
offering, that are
considered as part
of the offering; and
(5)
all offering materials
used in connection
with offerings registered
under 3 AAC 08.500 – 3
AAC 08.505.
(e)
The administrator will,
in the administrator’s
discretion, modify or
waive any requirement
in 3 AAC 08.500 – 3
AAC 08.505. An applicant
for waiver must prove
that the action requested
is consistent with AS
45.55, and that the investors
are otherwise adequately
protected.
3
AAC 08.504. REGISTRATION
OF RULE 504 OFFERINGS.
(a)
Offerings of securities
not exceeding the greater
of $1,000,000 or the
limit established under
17 C.F.R. 230.504(b)(2)
(SEC Rule 504(b)(2))
may be registered as
follows:
(1)
an unlimited number
of sophisticated or
suitable purchasers
may be involved;
(2)
written offering documents
providing full and
adequate disclosure
of material facts must
be provided to each
purchaser;
(3)
advertising is not
allowed without a waiver
from the administrator
under 3 AAC 08.520(b);
(4)
the sum of the following
amounts may not exceed
the greater of $1,000,000
or the limit established
under 17 C.F.R. 230.504(b)(2):
(A)
the dollar value
for the amount of
securities being
registered;
(B)
the aggregate offering
price of all securities
of the issuer sold
within the 12 months
before the effective
date of the certificate
of registration;
(C)
the aggregate offering
price of all securities
of the issuer sold
during the course
of the offering being
registered if the
securities were sold
in reliance on 15
U.S.C. 77c(b) (sec.
3(b) of the Securities
Act of 1933) or in
violation of 15 U.S.C.
77e(a) (sec. 5(a)
of the Securities
Act of 1933);
(5)
provisions on offerings
to sophisticated purchasers
are as follows:
(A)
the registration
of an offering to
sophisticated purchasers
under this section
allows sales to
(i)
an accredited investor;
(ii)
a permitted Alaska
purchaser; or
(iii)
a person, acting
alone or with a
purchaser representative,
who the issuer
reasonably believes
has the knowledge
and experience
in financial and
business matters
to be capable of
evaluating the
merits and risks
of the proposed
investment; the
issuer’s reasonable
belief of the person’s
knowledge and experience
must exist before
a person becomes
a purchaser;
(B)
sales under this
paragraph may be
made by the issuer,
a person registered
in this state to
sell for the issuer,
a broker-dealer,
or a person exempted
from registration
by AS 45.55 or this
chapter;
(6)
the registration of
an offering to suitable
purchasers under this
section allows
(A)
sales to be made
only by a broker-dealer
registered in this
state who is also
registered as a broker-dealer
with the SEC under
15 U.S.C. 78o(b)
(sec. 15(b) of the
Securities Exchange
Act of 1934);
(B)
registration if the
broker-dealer who
will conduct the
sales reasonably
believes that adequate
diligence and review
have been applied
in connection with
the offering being
registered in order
for the broker-dealer
to adequately determine
the suitability of
the offering to a
purchaser; and
(C)
sales if the broker-dealer
reasonably believes
that the security
is suitable for the
purchaser after reasonable
inquiry concerning
the purchaser’s
investment objectives,
financial situation,
and needs, and after
consideration of
any other information
known by the broker-dealer.
(b)
For purposes of this
section, 17 C.F.R. 230.504(b)(2),
as revised as of October
1, 1999, is adopted by
reference.
3
AAC 08.505. REGISTRATION
OF RULE 505 OFFERINGS.
(a)
Offerings of securities
not exceeding the greater
of $5,000,000 or the
limit established under
17 C.F.R. 230.505(b)(2)(i)
(SEC Rule 505(b)(2)(i))
may be registered under
this section, subject
to the following:
(1)
an unlimited number
of accredited investors
may be involved;
(2)
the issuer must reasonably
believe that, applying
the provisions for "calculation
of number of purchasers" in
17 C.F.R. 230.501,
the number of purchasers,
other than accredited
investors, total no
more than 35;
(3)
sales may be made only
to sophisticated or
suitable purchasers
as described in (b)-(c)
of this section;
(4)
the requirements of
3 AAC 08.515(a) and
(c)-(f) apply to offerings
registered under this
section;
(5)
advertising is not
allowed without a waiver
from the administrator
under 3 AAC 08.520(b);
(6)
the sum of the following
amounts may not exceed
the greater of $5,000,000
or the limit established
under 17 C.F.R. 230.505(b)(2)(i):
(A)
the dollar value
for the amount of
securities being
registered;
(B)
the aggregate offering
price of all securities
of the issuer sold
within the 12 months
before the effective
date of the certificate
of registration;
(C)
the aggregate offering
price of all securities
of the issuer sold
during the course
of the offering being
registered if the
securities were sold
in reliance on 15 U.S.C.
77c(b) (sec. 3(b)
of the Securities
Act of 1933) or in
violation of 15 U.S.C.
77e(a) (sec. 5(a)
of the Securities
Act of 1933).
(b)
Provisions on offerings
to sophisticated purchasers
are as follows:
(1)
the registration of
an offering to sophisticated
purchasers under this
section allows sales
to
(A)
an accredited investor;
(B)
a permitted Alaska
purchaser; or
(C)
a person, acting
alone or with a purchaser
representative, who
the issuer reasonably
believes has the
knowledge and experience
in financial and
business matters
to be capable of
evaluating the merits
and risks of the
proposed investment;
the issuer’s
reasonable belief
of the person’s
knowledge and experience
must exist before
a person becomes
a purchaser;
(2)
sales under this paragraph
may be made by the
issuer, a person registered
in this state to sell
for the issuer, a broker-dealer,
or a person exempt
from registration by
AS 45.55 or this chapter.
(c)
The registration of an
offering to suitable
purchasers under this
section allows
(1)
sales to be made only
by a broker-dealer
registered in this
state who is also registered
as a broker-dealer
with the SEC under
15 U.S.C. 78o(b) (sec.
15(b) of the Securities
Exchange Act of 1934);
(2)
registration if the
broker-dealer who will
conduct the sales reasonably
believes that adequate
diligence and review
have been applied in
connection with the
offering being registered
in order for the broker-dealer
to adequately determine
the suitability of
the offering to a purchaser;
and
(3)
sales if the broker-dealer
reasonably believes
that the security is
suitable for the purchaser
after reasonable inquiry
concerning the purchaser’s
investment objectives,
financial situation,
and needs, and after
consideration of any
other information known
by the broker-dealer.
(d)
For purposes of this section,
17 C.F.R. 230.505(b)(2)(i),
as revised as of October
1, 1999, is adopted by
reference.
3
AAC 08.506. NOTICE
FILING PROCEDURES FOR
TRANSACTIONS OF FEDERAL
COVERED SECURITIES NOT
INVOLVING PUBLIC OFFERINGS.
(a)
An issuer offering a
federal covered security
in a transaction that
is not a public offering
for the purposes of 15
U.S.C. 77d(2) and 15
U.S.C. 77r(b)(4)(D) (secs.
4(2) and 18(b)(4)(D)
of the Securities Act
of 1933) shall file with
the administrator no
later than 15 days after
the first sale of that
federal covered security
in this state
(1)
a notice on SEC Form
D, including Part E
and the Appendix, or
on any successor form
adopted by the SEC;
and
(2)
a nonrefundable notice
filing fee as provided
in 3 AAC 08.920(a)(3).
(b)
A notice filing under
this section is effective
(1)
only if the administrator
receives each item
required by (a) of
this section; and
(2)
on the date that the
administrator receives
the last of the items
required by (a) of
this section.
(c)
After receipt of the
items required (a) of
this section, the administrator
will issue a certificate
of notice as of the date
of receipt of those items.
Sales may occur before
the effective date of
the notice filing under
this section.
(d)
A notice filing under
this section is valid
for one year from the
effective date established
under (b) of this section,
or for two years from
that date if, when submitting
the items required under
(a) of this section,
the issuer paid the fee
required by 3 AAC 08.920(a)(3)
for an automatic extension.
To renew a notice, the
issuer must submit the
items required by (a)
of this section, as if
the issuer were making
an initial filing.
Sec. 45.55.075. Federal covered securities.
(a) Unless otherwise exempt under AS 45.55.900, a security that is a federal covered security under 15 U.S.C. 77r(b)(2) (Securities Act of 1933) may only be offered for sale and sold into, from, or within the state upon the administrator's receipt of
(1) a copy of the registration statement filed by the issuer with
the United States Securities and Exchange Commission or, in place of the
registration statement, the Uniform Investment Company Notice Filing
Form adopted by North American Securities Administrators Association,
Inc., or a similar notice filing form;
(2) a consent to service of process signed by the issuer; and
(3) a notice filing fee as prescribed by the administrator for a notice filing under this section and, if necessary to compute the fee, a report of the value of the federal covered securities offered or sold in this state.
(b) A notice filing under this section may be renewed by filing,
before the expiration of an effective notice filing, a renewal notice
and filing fee as prescribed by the administrator and, if necessary to
compute the fee, a report of the value of the federal covered securities
offered or sold in this state. A renewal notice filing is effective on
the expiration date of the previous notice filing.
(c) A notice filing under this section may be amended as provided by
the administrator by regulation or order. A notice filing may be
terminated by an issuer upon providing the administrator with notice of
the termination.
(d) With respect to a security that is a covered security under 15
U.S.C. 77r(b)(4)(D) (Securities Act of 1933), the administrator, by
regulation or order, may require the issuer to file a notice on United
States Securities and Exchange Commission Form D and a consent to
service of process signed by the issuer no later than 15 days after the
first sale of a covered security in this state and a fee established by
the administrator for a notice filing under this section.
(e) The administrator, by regulation or order, may require the
filing of any document filed with the United States Securities and
Exchange Commission under 15 U.S.C. 77a - 77bbbb (Securities Act of
1933), with respect to a covered security under 15 U.S.C. 77r(b)(3) or
(4) (Securities Act of 1933).
(f) The administrator may issue a stop order suspending the offer and sale of a federal covered security, except a federal covered security under 15 U.S.C. 77r(b)(1) (Securities Act of 1933), if the administrator finds that
(1) the stop order is in the public interest; and
(2) there is a failure to comply with a condition established under this section.
(g) The administrator, by regulation or order, may waive any or all of the provisions of this section.
3
AAC 08.510. INTEGRATION
REQUIREMENTS.
(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.
3
AAC 08.515. INFORMATION
REQUIREMENTS.
(a)
The provisions of 3 AAC
08.501 – 3 AAC 08.540
do not relieve a person
from compliance with
the statutory requirements
of AS 45.55 for full
and adequate disclosures
of material items.
(b)
If an offering is registered
under 3 AAC 08.504, written
disclosures must be provided
in connection with all
offers and sales as required
under (a)(2) of that
section.
(c)
If an offering is registered
under 3 AAC 08.505, the
offeror must provide
full and adequate disclosure
of all matters material
to an understanding of
the issuer, the issuer's
business, and the securities
being offered. Disclosures
must
(1)
provide each prospective
purchaser with at least
the type of information
and documentation required
by 17 C.F.R. 230.502(b)(2);
for purposes of this
paragraph, 17 C.F.R.
230.502(b)(2), as revised
as of October 1, 1999,
is adopted by reference;
(2)
include a procedure
for a prospective purchaser
to ask questions and
receive answers concerning
the terms of the offering
and to obtain any additional
information that
(A)
the issuer possesses
or can acquire through
reasonable effort
or expense; and
(B)
is necessary to verify
the accuracy of information
provided under this
section; and
(3)
include a procedure
for a prospective purchaser
who is not an accredited
investor to obtain
a brief written description
of any written information
concerning the offering
that is provided by
the issuer to any accredited
investor; failure by
a purchaser to request
the information does
not constitute a waiver
of the issuer’s
statutory obligation
to provide full and
complete disclosure;
for purposes of this
paragraph, a prospective
purchaser includes
a permitted Alaska
purchaser.
(d)
Notwithstanding (c) of
this section, if an offering
is registered under 3
AAC 08.505 and is restricted
to accredited investors,
full and adequate disclosure
of material items does
not require disclosure
of specific information
or a specific method
of providing disclosure.
(e)
A disclosure required
by this section must
be provided to a person
before that person purchases
the securities.
(f)
if written information
is provided to a prospective
permitted Alaska purchaser,
the offering materials
must contain the following
legend, which must be
set out in a prominent
place:
"IN
MAKING AN INVESTMENT
DECISION INVESTORS MUST
RELY ON THEIR OWN EXAMINATION
OF THE ISSUER AND THE
TERMS OF THE OFFERING,
INCLUDING THE MERITS
AND RISKS INVOLVED.
"THESE
SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL
OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY.
FURTHER-MORE, THE FOREGOING
AUTHORITIES HAVE NOT
CONFIRMED THE ACCURACY
OR DETERMINED THE ADEQUACY
OF THIS DOCUMENT. ANY
REPRESENTATION TO THE
CONTRARY IS A CRIMINAL
OFFENSE.
"THESE
SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT OF
1933, AS AMENDED, AND
THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS
SHOULD BE AWARE THAT
THEY MAY BE REQUIRED
TO BEAR THE FINANCIAL
RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD
OF TIME."
3
AAC 08.520. LIMITATIONS
ON MANNER OF
OFFERING.
(a)
An issuer or person acting
on behalf of an issuer
may not offer or sell
securities registered
under 3 AAC 08.500 – 3
AAC 08.540 by general
solicitation or general
advertising. For purposes
of this subsection, general
solicitation or general
advertising includes
(1)
an advertisement, article,
notice, or other communication
published in a newspaper,
magazine, or similar
medium, or broadcast
over television or
radio; and
(2)
a seminar or meeting
to which attendees
are invited by general
solicitation or general
advertising.
(b)
The administrator will,
in the administrator’s
discretion, waive or
conditionally waive the
provisions of (a) of
this section. To request
a waiver, the registrant
must
(1)
file a request for
waiver;
(2)
provide the advertising
materials or an adequate
description of the
advertising materials
and identify the media
that will be used;
(3)
state the reasons for
requesting the waiver
and show that purchasers
are otherwise protected;
and
(4)
provide an attorney’s
opinion that the proposed
use of the advertising
will not invalidate the
offering under the laws
or regulations of any federal
or state regulatory agencies
having securities jurisdiction
over the offering
3
AAC 08.530. DISQUALIFICATION.
(a)
A person who is disqualified
from using an exemption
under 17 C.F.R. 230.504
or 17 C.F.R. 230.505
is also disqualified
from registering under
3 AAC 08.504 or 3 AAC
08.505, respectively.
(b)
The administrator will,
in the administrator’s
discretion, deny registration
under 3 AAC 08.500 – 3
AAC 08.540 if a person
described in 17 C.F.R.
230.262(a), (b), or (c)
(1)
meets any of the disqualification
provisions of 17 C.F.R
230.262 applicable
to that person;
(2)
has filed a registration
statement that is the
subject of a currently
effective stop order
entered by a state
within five years before
the registration of
the offering;
(3)
within the 10 years
preceding the filing
of the registration,
has been convicted
of
(A)
a felony or misdemeanor
in connection with
the purchase or sale
of a security or
involving a false
filing with a state;
or
(B)
a felony involving
fraud or deceit,
including forgery,
embezzlement, obtaining
money under false
pretenses, larceny,
and conspiracy to
defraud; or
(4)
has been subject to
a state administrative
or court order or judgment,
including an injunction,
entered within the
five years preceding
the filing of the registration,
if a violation of a
state banking, insurance,
real estate, or securities
law is the grounds
for the order or judgment.
(c)
A disqualification under
(b)(2)-(4) of this section
does not apply if the
person subject to the
disqualifying order is
licensed to conduct securities-related
business in the state
in which the order or
judgment was entered.
(d)
A disqualification under
(b)(2)-(4) of this subsection
is automatically waived
if the state that created
the basis for disqualification
waives the disqualification.
(e)
The administrator will
review the representations
in each registration
to determine whether
registration should be
denied under (b) of this
section. The administrator
will, in the administrator’s
discretion, allow the
registration upon a showing
that allowing the registration
is in the public interest
and that safeguards have
been provided for that
offering.
(f)
For purposes of this
section, 17 C.F.R. 230.262,
as revised as of October
1, 1999, is adopted by
reference.
3
AAC 08.535. LIMITATION
ON SALES EXPENSES.
(a)
Expenses of an offering
registered under 3 AAC
08.504 or 3 AAC 08.5
05,
including sales expenses,
acquisition expenses,
expenses for preparing
the offering, and other
similar expenses, must
be reasonable after taking
into account the nature
of the offering, the
amount to be raised by
the offering, and the
proposed use of the money.
(b)
If the proposed business
of the issuer requires a
minimum amount of proceeds
to commence or continue the
business in the manner proposed,
those proceeds are subject
to impoundment as provided
under 3 AAC 08.190.
3
AAC 08.540. RESCISSION
OF IMPROVIDENT SALES.
(a)
The improvident closing
of a sale of securities
in violation of a provision
of 3 AAC 08.500 – 3
AAC 08.505 does not by
itself invalidate the
registration of the securities
if the registrant
(1)
seeks an appropriate
amendment to the registration
with the administrator,
provides full details
of the transaction,
demonstrates that the
registrant and the
person acting on behalf
of the registrant who
sold the security acted
in good faith, demonstrates
that the sale was made
without an intent to
violate the provisions
of this section, and
receives an amended
order authorizing the
proposed transaction;
(2)
cancels the sale or
provides rescission
to the purchaser involved
within a reasonable
time after discovery;
or
(3)
either
(A)
cancels the sale
or provides rescission
before release of
proceeds held in
escrow under AS 45.55.110
and 3 AAC 08.180 – 3
AAC 08.186; or
(B)
has the financial
capacity to pay and
offers to or does
provide the rescission
payment out of separate
funds, if the payment
does not create additional
risks or obligations
to the remaining
purchasers or the
project for which
the money was raised.
(b)
Regardless of whether
a registrant cancels
a sale or provides rescission
under this section to
a purchaser who is counted
as a purchaser in a "calculation
of number of purchasers" under
17 C.F.R. 230.501, the
registrant may not omit
that purchaser from the "calculation
of number of purchasers" for
purposes of meeting the
requirements of 3 AAC
08.505(a)(2).
(c)
A rescission payment
or payment date may not
be made subject to resale
of the interest to be
cancelled.
(d)
This section applies
to the registrant and
any other person who
is responsible for the
sale of security and
subject to the requirements
of AS 45.55 and this
chapter.
(e)
A rescission payment
under this section must
be made without condition,
and the person offering
the rescission must have
the financial capacity
to pay.
(f)
If the rescission creates
additional risks or obligations
for the remaining purchasers
who do not accept rescission
under (a) of this section,
those risks and obligations
must be disclosed.
(g)
This section does not
relieve a person from
compliance with other
federal or state law.
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