The federal Intrastate Exemption exempts “any security which is a part of an issue offered and sold only to persons resident within a single State or Territory, where the issuer of such security is a person resident and doing business within or, if a corporation, incorporated by and doing business within, such State or Territory.” This exemption recognizes that an issuer that is only offering and selling securities within one state and doing most of its business within that state is best left alone by the federal securities laws and left to the regulatory authority of the state in which that issuer is located and offering securities.
The Securities and Exchange Commission has adopted a safe harbor rule to make it easier for an issuer to ensure that it is covered by the intrastate exemption. A safe harbor rule is one that contains requirements that, if complied with, ensure eligibility for the exemption. But non-compliance with the safe harbor requirements does not necessarily result in ineligibility for the exemption.
The rule’s preliminary notes state that the intrastate exemption “was intended to apply only to issues genuinely local in character, which in reality represent local financing by local industries, carried out through local investment.”
The following items must be satisfied to comply with Rule 147:
• The issuer is incorporated or organized (or if an individual has his or her principal residence) in the state in which the offering is made.
• The issuer derived at least 80 percent of its gross revenues and those of its subsidiaries on a consolidated basis from that state ((A) For its most recent fiscal year, if the first offer of any part of the issue is made during the first six months of the issuer’s current fiscal year; or (B) For the first six months of its current fiscal year or during the twelve-month fiscal period ending with such six-month period, if the first offer of any part of the issue is made during the last six months of the issuer’s current fiscal year from the operation of a business or of real property located in or from the rendering of services within such state or territory; provided, however, that this provision does not apply to any issuer which has not had gross revenues in excess of $5,000 from the sale of products or services or other conduct of its business for its most recent twelve-month fiscal period.).
• The issuer had at the end of its most recent semi-annual fiscal period prior to the first offer of any part of the issue, at least 80 percent of its assets and those of its subsidiaries on a consolidated basis located within that state.
• The issuer intends to use and uses at least 80 percent of the net proceeds from sales made pursuant to the rule in connection with the operation of a business or of real property, the purchase of real property located in, or the rendering of services within such state.
• The principal office of the issuer is located within such state.
• No part of the issue may be offered or sold to non-residents for a period of nine months from the date of the last sale of an issue under the rule (For purposes of determining the residence of offerees and purchasers: (1) A corporation, partnership, trust or other form of business organization shall be deemed to be a resident of a state or territory if, at the time of the offer and sale to it, it has its principal office within such state or territory. (2) An individual shall be deemed to be a resident of a state or territory if such individual has, at the time of the offer and sale to him, his principal residence in the state or territory. (3) A corporation, partnership, trust or other form of business organization which is organized for the specific purpose of acquiring part of an issue offered pursuant to this rule shall be deemed not to be a resident of a state or territory unless all of the beneficial owners of such organization are residents of such state or territory.).
• During that nine month period, all resales of any part of the issue, by any person, shall be made only to persons resident within the state.
• The issuer shall, in connection with any securities sold by it pursuant to the rule: (i) Place a legend on the certificate or other document evidencing the security stating that the securities have not been registered under the Act and setting forth the limitations on resale contained in the rule; (ii) Issue stop transfer instructions to the issuer’s transfer agent, if any, with respect to the securities, or, if the issuer transfers its own securities make a notation in the appropriate records of the issuer; and (iii) Obtain a written representation from each purchaser as to his residence.
• The issuer shall, in connection with any offers, offers to sell, offers for sale or sales by it pursuant to this rule, disclose, in writing, the limitations on resale contained in the rule.