(1) The rules
of WAC
460-44A-501 through
460-44A-508 relate to
transactions exempted from the registration requirements of the Federal
Securities Act of 1933 that are also exempted or preempted from
RCW
21.20.140. WAC
460-44A-504 is an exemption from
registration for offerings exempted under Securities and Exchange Commission
Rule 504 or Rule 147. WAC
460-44A-505 is an exemption from
registration for offerings exempted under Securities and Exchange Commission
Rule 505. WAC
460-44A-506 establishes certain
conditions for offerings exempted under Securities and Exchange Commission Rule
506. Unless expressly provided otherwise, such transactions are not exempt from
anti-fraud, civil liability, or other provisions of the federal and state
securities laws. Issuers are reminded of their obligation to provide such
further material information, if any, as may be necessary to make the
information required under these rules, in light of the circumstances under
which it is furnished, not misleading.
(2) Attempted compliance with the exemption
of WAC
460-44A-504,
460-44A-505, or
460-44A-506 does not act as an
exclusive election; the issuer can also claim the availability of any other
applicable exemption.
(3) These
rules are available only to the issuer of the securities and not to any
affiliate of that issuer or to any other person for resale of the issuer's
securities. The rules provide an exemption only for the transactions in which
the securities are offered or sold by the issuer, not for the securities
themselves.
(4) In any proceeding
involving the rules in WAC
460-44A-501 through
460-44A-508, the burden of
proving the exemption, an exception from a definition or condition, or
preemption, is upon the person claiming it.
(5) For offerings commenced but not completed
prior to the amendment of WAC
460-44A-501 through
460-44A-508, issuers may opt to
follow the rules in effect at the date of filing notice of the
offering.
(6) Securities offered
and sold outside the United States in accordance with Securities and Exchange
Commission Regulation S need not be registered under chapter 21.20 RCW.
Regulation S may be relied upon for such offers and sales even if coincident
offers and sales are made in accordance with Regulation D and WAC
460-44A-501 through
460-44A-508 inside the United
States. Thus, for example, persons who are offered and sold securities in
accordance with Regulation S would not be counted in the calculation of the
number of purchasers under Regulation D and WAC
460-44A-501 through
460-44A-508. Similarly proceeds
from such sales would not be included in the aggregate offering price. The
provisions of this subsection, however, do not apply if the issuer elects to
rely solely on Regulation D for offers or sales to persons made outside the
United States.
(7) These rules have
been amended in recognition of the amendment of Regulation D by the Securities
and Exchange Commission (SEC) to authorize the filing of Form D in electronic
format with the SEC through the Electronic Data Gathering, Analysis, and
Retrieval System (EDGAR) in accordance with EDGAR rules set forth in Regulation
S-T ( 17 C.F.R. Part
232) as described in Securities and Exchange Commission
Securities Act Release No. 8891. WAC
460-44A-503(1)(b)
authorizes an issuer to file a copy of the notice of sales on Form D filed
electronically or in paper format with the SEC (17 C.F.R.
239.500)
until an electronic filing system acceptable to the administrator of securities
of the department of financial institutions is implemented that permits the
electronic filing of Form D with the administrator or his or her
designee.
