The intrastate offering exemption seeks to facilitate the financing of local business operations. The intrastate offering exemption has no limits on the size of the offering or the number of purchasers. A company must determine the residence of each purchaser. If the company offers or sells its securities to even one out-of-state person, the company may lose the exemption.
Considered a “safe harbor,” Rule 147 provides objective standards that a company can rely on. Rule 147 has the following requirements:
- The company must be organized in the state where it offers and sells securities, must have its “principal place of business” in-state and satisfy at least one “doing business” requirement that demonstrates the in-state nature of the company’s business;
- The company may only offer or sell securities persons who the company reasonably believes are in-state residents; and,
- Each purchaser provides the company with a written representation providing the residency of that purchaser.
Securities purchased in a Rule 147 offering limit resales to persons residing within the state of the offering for a period of six months from the date of the sale by the issuer to the purchaser. In addition, a company must comply with state securities laws and regulations in the states in which it offers or sells its securities.
In October 2016, the SEC adopted Rule 147A. The new Rule 147A is substantially identical to Rule 147 except that Rule 147A:
- Out-of-state residents may access offers but only in-state residents may purchase the securities; and,
- Permits a company to be incorporated or organized out-of-state so long as the company’s “principal place of business” in-state. The company must also satisfy at least one “doing business” requirement that demonstrates the in-state nature of the company’s business.
Intrastate Offering Documents
Our Rule 147/147A set of offering documents include the following:
- A Rule 147/147A Offering Memorandum featuring content that is easy to edit;
- A Form of Warrant;
- A Mail Merge Data Source file to facilitate your completion of your PPM;
- A legal Subscription Agreement;
- An Accredited Investor Verification Document to help you evaluate your potential investor;
- Jurisdictional Legends for all 50 states;
- The ERISA Disclosure Document;
- A complete Set of Patriot Act Documents.
Do the anti-fraud provisions apply?
All securities transactions, even exempt transactions, are subject to the antifraud provisions of the federal securities laws. You and your company are responsible for false or misleading statements that you or others, on your behalf, make regarding your company, the securities offered, or the offering. Any such statements made by you or your company, either orally or in writing, are your responsibility.
The government enforces the federal securities laws through criminal, civil and administrative proceedings. Private parties also can bring actions under certain securities laws. Also, purchasers may be able to return their securities and obtain a refund of their purchase price if the exemptions do not meet all conditions.
Do state law requirements apply?
While the SEC regulates and enforces the federal securities laws, each state enforces its own securities laws known as “blue sky” laws. A company selling securities must comply with both federal state securities laws and regulations in the states where the company offers and sells its securities.
Under the Securities Act, if a company’s offering qualifies for certain exemptions from registration, that offering is not required to be registered or qualified by state securities regulators. Even if the offering is made under one of those exemptions, the states still have authority to investigate and bring enforcement actions for fraud, impose state notice filing requirements, and collect state fees. The failure to file, or pay filing fees regarding, any such materials may cause state securities regulators to suspend the offer or sale of securities within their jurisdiction. Companies should contact state securities regulators in the states in which they intend to offer or sell securities for further guidance on compliance with state law requirements. The following table illustrates which offerings are potentially subject to state registration or qualification under the Securities Act.
|Securities Act Exemption||Under the Securities Act, is the offering potentially subject to state registration or qualification?|
|Regulation A – Tier 1||Yes|
|Regulation A – Tier 2||No|
|Rules 147 and 147A||Yes|
Each state’s securities laws have their own separate registration requirements and exemptions to registration requirements. Even if the offering is not subject to state registration or qualification, there may still be state notice filing requirements and fees.
To locate a state securities regulator and learn more about a particular state’s securities laws, please visit the North American Securities Administrators Association (NASAA) website.
How can an investor resell non-restricted securities?
An investor not affiliated with the issuer who wishes to sell unrestricted securities must either register the transaction or have an exemption for the transaction. An exemption commonly relied upon for the resale of the securities is Section 4(a)(1) of the Securities Act which is available to any person other than an issuer, underwriter or dealer. Several exemptions, including the Regulation D exemptions, are only available for offers and sales of securities to initial purchasers. These exemptions are not available to any affiliate of the issuer or to any person for resale.