ARTICLE 2 Exemptions From Registration of Securities
Section 421-B:2-202-A
421-B:2-202-A Implementing Provisions. –
(1) Counting of purchasers. The following principles shall be used to calculate the number of purchasers to whom sales of the issuer's securities are made pursuant to RSA 421-B:2-202(1) and RSA 421-B:2-202(11) and (14):
(A) Exclusions. The following purchasers shall be excluded:
(i) Any relative, spouse, or relative of the spouse of a purchaser who has the same principal residence as such purchaser;
(ii) Any individual retirement account for the benefit of a purchaser;
(iii) Any trust or estate in which a purchaser or any of the persons related to such purchaser specified in subsection (1)(C) collectively have more than 50 percent of the beneficial interest (excluding contingent interests); and
(iv) Any corporation, partnership, limited partnership, limited liability company, limited liability partnership, business trust or other business entity in which a purchaser or any of the persons related to the purchaser specified in subsection (1)(C) collectively are the beneficial owners of more than 50 percent of the equity securities or equity interests.
(B) Inclusions. A purchaser shall be included in the calculation of the number of purchasers if such purchaser purchases a security which the issuer claims qualifies as a federal covered security under section 18(b)(4)(F) of the Securities Act of 1933 but in actuality does not so qualify.
(C) Entity as purchaser. A corporation, partnership, limited partnership, limited liability company, limited liability partnership, business trust, or other business entity shall be counted as one purchaser. However, if such entity is organized for the specific purpose of acquiring the securities offered and is not an investor specified in RSA 421-B:2-202(13), then each beneficial owner of equity interests or equity securities in such entity shall count as a separate purchaser.
(D) Employee benefit plan as purchaser. A non-contributory employee benefit plan, within the meaning of title I of the Employee Retirement Income Security Act of 1974, shall be counted as one purchaser if the trustee makes all investment decisions for the plan.
(E) Sales to certain clients or customers. Sales to clients of an investment adviser, broker-dealer, or trust administered solely by a bank having fiduciary power, or persons with similar relationships, shall be considered as separate sales, regardless of the amount of discretion given to the investment adviser, broker-dealer, bank, or other person to act on behalf of the client, customer or trust.
(F) Joint or common ownership. Sales to persons who acquire the securities as joint tenants, tenants in common, or tenants by the entirety shall be counted as a single purchaser.
(2) Integration of Offerings. Offers and sales of securities that are made more than 6 months before the start of an offering or are made more than 6 months after completion of an offering will not be considered part of that offering, so long as during those 6-month periods there are no offers or sales of securities by or for the issuer that are of the same or a similar class as those offered and sold in such offering, other than offers or sales of securities under an employee benefit plan. The determination of whether separate sales of securities are part of the same offering and are considered integrated depends on the particular facts and circumstances. The following factors should be considered in determining whether offers and sales should be integrated for purposes of the exemption under RSA 421-B:2-202(14):
(A) Whether the sales are part of a single plan of financing;
(B) Whether the sales involve issuance of the same class of securities;
(C) Whether the sales have been made at or about the same time;
(D) Whether the same type of consideration is being received; and
(E) Whether the sales are made for the same general purpose.
(3) In connection with an offer and sale of exempt securities or in an exempt transaction, other than in connection with an offer and sale of federal covered securities, additional disclosures shall be made in offering documents, or an application for registration or a filing for exemption from registration shall be denied, or further conditions for an exemption may be imposed by the secretary of state, if any partner, officer, director, or a person having a similar status or performing a similar function:
(A) has filed a registration statement which is the subject of a currently-effective stop order entered pursuant to any state's securities laws within the previous 5 years;
(B) has been convicted within the previous 5 years of any felony or misdemeanor in connection with the offer, purchase or sale of any security;
(C) has been convicted within the previous 5 years of any felony involving fraud or deceit, including forgery, embezzlement, obtaining money under false pretenses, larceny, or conspiracy to defraud;
(D) is the subject of a material administrative enforcement order or judgment entered by a state's securities administrator within the previous 5 years or has been the subject to any state's administrative enforcement order or judgment in which fraud or deceit, including but not limited to, making untrue statements of material facts and omitting to state material facts, was found and the order or judgment was entered within the previous 5 years;
(E) is subject to a material administrative enforcement order or judgment which prohibits, denies or revokes the use of any exemption from registration in connection with the offer, purchase, or sale of securities; or
(F) is currently subject to any order, judgment, or decree of any court of competent jurisdiction temporarily, preliminarily, or permanently restraining, or enjoining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security or involving the making of any false filing with the state entered within the previous 5 years.