Title 3 . Commerce, Community, and Economic Development

Chapter 8 . Land Sales

Section 910. Exemptions

3 AAC 08.910. Exemptions

The following governs exemptions under AS 45.55 relating to securities and transactions as indicated:

(1) manual exemptions

(A) for the purpose of the "manual exemption" under AS 45.55.900 (b)(17), the following publications that contain information prescribed at AS 45.55.900 (b)(17) are "nationally recognized securities manuals":

(i) Standard & Poor's;

(ii) Moody's Investors Service, Inc.;

(iii) Financial Communications Company, Inc., which were formerly known as "Moody's Manuals";

(iv) Fitch Investors Service, LP;

(B) the distribution of large blocks of securities by controlling persons will ordinarily be presumed to be for the direct or indirect benefit of the issuer, and not within the provisions of the manual exemption;

(2) unsolicited orders--a purchaser acquiring securities in a nonissuer transaction by or through a registered broker-dealer under an unsolicited order to buy, and in which the broker-dealer acts as agent for the purchaser and receives no commission or other compensation from any source other than the purchaser, shall acknowledge in writing that the purchaser's order to buy was unsolicited; a signed copy of each acknowledgment shall be preserved by the broker-dealer as may be required by the SEC;

(3) private offering exemption

(A) issuers exempted by AS 45.55.900 (b)(5)(A) or (B) shall notify the administrator at least two days before selling securities by filing State of Alaska Form 08-106 for the AS 45.55.900 (b)(5)(A) exemption or State of Alaska Form 08107 for the AS 45.55.900 (b)(5)(B) exemption; the notice and nonrefundable fees as required by 3 AAC 08.920(a) (6) must be in the administrator's possession at least two full business days before the sale takes place, unless the administrator waives the two-day time requirement;

(B) in AS 45.55.900 (b)(5)(A) and (B), "in this state" has the same meaning as "in this state" in AS 45.55.980 (c);

(C) in AS 45.55.900 (b)(5)(B)(i), "solely in this state" is satisfied if the issuer meets the criteria of 17 C.F.R. 230.147(c) adopted under 15 U.S.C. 77a-77bbbb (Securities Act of 1933);

(D) in AS 45.55.900 (b)(5)(C), "initial issue of shares" means the first distribution of stock or ownership or partnership interests by the entity issuing the securities;

(E) unless waived by the administrator at the written request of the issuer, the exemption at AS 45.55.900 (b)(5)(A) may not be relied upon unless the issuer has reason to believe, in the case of

(i) a corporation, the total number of security holders in this state does not before the sale and will not in consequence of the sale exceed twenty holders;

(ii) a limited partnership or limited liability partnership, the total number of limited partners in this state does not before the sale and will not in consequence of the sale exceed twenty partners;

(iii) a limited liability company, the total number of members in this state does not before the sale and will not in consequence of the sale exceed twenty members;

(F) unless waived by the administrator at the written request of the issuer, the exemption provided by AS 45.55.900 (b)(5)(B) may not be relied upon unless the issuer has reason to believe, in the case of

(i) a corporation, the total number of security holders in this state does not before the sale and will not in consequence of the sale exceed thirty holders;

(ii) a limited partnership or limited liability partnership, the total number of limited partners in this state does not before the sale and will not in consequence of the sale exceed thirty partners;

(iii) a limited liability company, the total number of members in this state does not before the sale and will not in consequence of the sale exceed thirty members;

(4) for the purposes of (3)(E) and (3)(F) of this section, the administrator will consider the following to be a single owner of a security:

(A) a husband and wife;

(B) a child and the child's parent or guardian when the parent or guardian holds the security for the benefit of the child;

(C) a corporation, a partnership, a limited liability partnership, a limited liability company, an association or other unincorporated entity, a joint stock company, or a trust, if the corporation, partnership, limited liability partnership, limited liability company, association or other unincorporated entity, joint stock company, or trust that was not formed for the purpose of purchasing or owning the security;

(5) an application for exemption under AS 45.55.900 (b)(4) where the offer or sale is to a financial institution or institutional buyer other than a bank, savings institution, trust company, insurance company, investment company as defined in 15 U.S.C. 80a (Investment Company Act of 1940), or pension or profit-sharing trust, shall be filed with the administrator on State of Alaska Form 08-108 along with the nonrefundable fees as required by 3 AAC 08.920(a) (6) before the offer or sale takes place;

(6) an application for exemption under AS 45.55.900 (b)(7)(B) shall be filed with the administrator on State of Alaska Form 08-109 along with the fees as required by 3 AAC 08.920(a) (6); the application must be in the administrator's possession five full business days before the proposed transaction, unless the administrator waives the five-day time requirement;

(7) an application for exemption under AS 45.55.900 (b)(18) shall be filed with the administrator on State of Alaska Form 08-110 along with the fees as required by 3 AAC 08.920(a) (6); the application must be in the administrator's possession within 15 days of the first sale in this state;

(8) the limitation on the availability of the exemption at AS 45.55.900 (b)(18) includes issuers that are in the development stage that either have no specific business plan or purpose or have a business plan or purpose to engage in a merger or acquisition with an unidentified company or other entity or person; the administrator will consider in making decisions under this paragraph that the limitation on the availability of the exemption does not include issuers that are in the development stage that have a specific business plan or purpose where that business plan or purpose is not to engage in a merger or acquisition with an unidentified company or other entity or person; the administrator will consider in making decisions under this paragraph that one of the explicit objectives of the exemption at AS 45.55.900 (b)(18) is to allow issuers to use electronic and other matching services such as the Small Business Administration's ACE-Net (Angel Capital Electronic Network); the administrator will consider that issuers that meet the criteria of the ACE-Net to meet the criteria of this exemption unless explicitly included in the limitation on availability;

(9) an application for exemption under AS 45.55.900 (b)(19) shall be filed with the administrator on State of Alaska Form 08-111 along with the fees as required by 3 AAC 08.920(a) (6), and must be in the administrator's possession at least two business days before the offer is made, unless the administrator waives the two-day time requirement;

(10) in AS 45.55.900 (b)(20),

(A) "affinity" means by marriage;

(B) "consanguinity" means by blood;

(C) "within the fourth degree of affinity or consanguinity" includes only, whether by marriage or blood, the person or the person's

(i) children;

(ii) grandchildren;

(iii) great-grandchildren;

(iv) parents;

(v) brothers and sisters;

(vi) nephews and nieces;

(vii) grandnephews and grandnieces;

(viii) grandparents;

(ix) uncles and aunts;

(x) first cousins;

(xi) great grandparents;

(xii) great uncles and great aunts; and

(xiii) great-great grandparents;

(11) each application for exemption filed under AS 45.55.900 must be accompanied by the fee as provided in 3 AAC 08.920(a) (6); the administrator will not consider the application for exemption complete until both the application, containing the required information, and the required fee are received by the administrator;

(12) each application for exemption is effective as of the date provided in the order or notice of effectiveness sent by the administrator to the person requesting the exemption; the administrator will set the effectiveness date as the date of receipt of the application and fees and the statutory requirement for prenotification, if any, unless the prenotification period is waived by the administrator; if the administrator waives the prenotification period, the effective date is the date of receipt of the application and fees.

(13) the exemption in AS 44.55.900 (a)(4) for instruments of nine months' maturity or less applies only to commercial paper, notes, drafts, bills of exchange, and bankers' acceptances that, in addition to meeting the requirements of AS 45.55.900 (a)(4), are also prime quality commercial paper; to be prime quality commercial paper, those instruments must arise out of current commercial, agricultural, or industrial transactions, and may not be intended to be marketed to the public, whether or not eligible for discount by a federal reserve bank; for purposes of this paragraph, "prime quality" means rated "A" or better by Fitch Investor Services.

History: Eff. 2/20/72, Register 41; am 3/24/76, Register 57; am 2/9/78, Register 65; am 11/18/90, Register 116; am 9/8/91, Register 119; am 10/1/99, Register 151; am 6/8/2001, Register 158

Authority: AS 45.55.900

AS 45.55.950