New Hampshire Revised Statutes 421-B:2-202-A – Implementing Provisions
Current as of: 2023 | Check for updates
|
Other versions
(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 N.H. Rev. Stat. § 421-B:2-202(1) and N.H. Rev. Stat. § 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 N.H. Rev. Stat. § 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 N.H. Rev. Stat. § 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.
(A) Exclusions. The following purchasers shall be excluded:
Terms Used In New Hampshire Revised Statutes 421-B:2-202-A
- Bank: means any of the following:
(A) a banking institution organized under the laws of the United States;
(B) a member bank of the Federal Reserve System;
(C) a bank organized under the laws of the state of New Hampshire;
(D) a trust company;
(E) any other banking institution, whether incorporated or not, doing business under the laws of a State or of the United States, a substantial portion of the business of which consists of receiving deposits or exercising fiduciary powers similar to those permitted to be exercised by national banks under the authority of the Comptroller of the Currency pursuant to section 1 of Public Law 87-722 12 U. See New Hampshire Revised Statutes 421-B:1-102 - Broker-dealer: means a person engaged in the business of effecting transactions in securities for the account of others or for the person's own account. See New Hampshire Revised Statutes 421-B:1-102
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Embezzlement: In most states, embezzlement is defined as theft/larceny of assets (money or property) by a person in a position of trust or responsibility over those assets. Embezzlement typically occurs in the employment and corporate settings. Source: OCC
- Federal covered security: means a security that is, or upon completion of a transaction will be, a covered security under section 18(b) of the Securities Act of 1933 15 U. See New Hampshire Revised Statutes 421-B:1-102
- Fiduciary: A trustee, executor, or administrator.
- Filing: means the receipt under this chapter of a record by the secretary of state. See New Hampshire Revised Statutes 421-B:1-102
- following: when used by way of reference to any section of these laws, shall mean the section next preceding or following that in which such reference is made, unless some other is expressly designated. See New Hampshire Revised Statutes 21:13
- Forgery: The fraudulent signing or alteration of another's name to an instrument such as a deed, mortgage, or check. The intent of the forgery is to deceive or defraud. Source: OCC
- Fraud: Intentional deception resulting in injury to another.
- including: shall be construed as introducing a non-exhaustive list. See New Hampshire Revised Statutes 421-B:1-102
- Investment adviser: means a person that, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities. See New Hampshire Revised Statutes 421-B:1-102
- Issuer: means a person that issues or proposes to issue a security, subject to the following:
(A) The issuer of a voting trust certificate, collateral trust certificate, certificate of deposit for a security, or share in an investment company without a board of directors or individuals performing similar functions is the person performing the acts and assuming the duties of depositor or manager pursuant to the trust or other agreement or instrument under which the security is issued. See New Hampshire Revised Statutes 421-B:1-102 - Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Order: means an order issued pursuant to this chapter. See New Hampshire Revised Statutes 421-B:1-102
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Person: means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity. See New Hampshire Revised Statutes 421-B:1-102
- Sale: includes every contract of sale, contract to sell, or disposition of, a security or interest in a security for value, and "offer to sell" includes every attempt or offer to dispose of, or solicitation of an offer to purchase, a security or interest in a security for value. See New Hampshire Revised Statutes 421-B:1-102
- Secretary of state: means the New Hampshire secretary of state or his or her designee. See New Hampshire Revised Statutes 421-B:1-102
- Security: means a note; stock; treasury stock; security future; bond; debenture; evidence of indebtedness; certificate of interest or participation in a profit-sharing agreement; membership interest in a limited liability company; partnership interest in a limited partnership; partnership interest in a registered limited liability partnership; collateral trust certificate; preorganization certificate or subscription; transferable share; investment contract; investment metal contract or investment gem contract; voting trust certificate; certificate of deposit for a security; fractional undivided interest in oil, gas, or other mineral rights; put, call, straddle, option, or privilege on a security, certificate of deposit, or group or index of securities, including an interest therein or based on the value thereof; put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency; or, in general, an interest or instrument commonly known as a "security"; or a certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. See New Hampshire Revised Statutes 421-B:1-102
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See New Hampshire Revised Statutes 421-B:1-102
- Trustee: A person or institution holding and administering property in trust.
(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 N.H. Rev. Stat. § 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 N.H. Rev. Stat. § 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.