Title 3 . Commerce, Community, and Economic Development

Chapter 8 . Land Sales

Section 510. Integration requirements

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.

History: Eff. 4/19/2000, Register 154

Authority: AS 45.55.110

AS 45.55.950