“I merely forwarded copies of the Documents I received to a few people whom I thought could be interested... iHUB was in control of the Offering at all times and I was not acting in any particular capacity or being rewarded.”
Message 15128164
1.Being compensated is not, by any means, the "agency test." Nor is administrative or brokerage involvement. All it involves is acting on behalf of an issuer in not only effecting, but just ATTEMPTING, to sell their securites. Note the definition:
"Agent" means any individual, other than a broker-dealer, issuer or issuer-dealer, who represents a broker-dealer, issuer or issuer-dealer in effecting or attempting to effect purchases or sales of securities.
2. Message 15128240
"Making an Offering", IMO, entails...
Preparing the Documents, circulating them, collecting the Funds and keeping them in Escrow, causing the PP shares to be issued and generally being responsible for the good execution from A to Z of the Offering for which a reward is paid... I was merely making a few people aware that the opportunity existed...
No. Again, the definition:
"Agent" means any individual, other than a broker-dealer, issuer or issuer-dealer, who represents a broker-dealer, issuer or issuer-dealer in effecting or attempting to effect purchases or sales of securities.
The questions it would seem important to be asked are: (a) if the individual acting as an agent was offshore, why the issuer, if based in the U.S., would ask an offshore individual or entity to act as its’ agent; and (b) in particular, if those individuals or firms solicited were also offshore or...perhaps...back in the U.S...
Below is the text from a certain states’ definition of agent and agent exemptions. See if any of the exemptions apply in this case. (Hint: Nope.)
5 Jan 2001
Exemptions from definition of an agent
"Agent" means any individual, other than a broker-dealer, issuer or issuer-dealer, who represents a broker-dealer, issuer or issuer-dealer in effecting or attempting to effect purchases or sales of securities or an individual other than an investment adviser who represents an investment adviser by providing investment advice or who is an investment adviser representative.
"Agent" does not include an individual who represents an issuer in:
(a) Effecting transactions in a security exempted by 421-B:17, I(a), (b), (c), (d), (e), (g), (h) or (j):
(a) Any security, including a revenue obligation, issued or
guaranteed by the United States, any state, any political subdivision of a state, or any agency, or corporate or other instrumentality, of one or more of the foregoing, or any certificate of deposit for any of the foregoing, but this exemption shall not include any industrial development bond or any industrial revenue bond;
Was this a municipal security? No.
(b) Any security issued or guaranteed by Canada, any Canadian province, any political subdivision of any such province, or any agency, or corporate or other instrumentality, of one or more of the foregoing, or any other foreign government with which the United States currently maintains diplomatic relations, if the security is recognized as a valid obligation by the issuer or guarantor;
Was this a Canadian issue, etc.? No.
(c) Any security issued by and representing an interest in or a debt of, or guaranteed by, any bank organized under the laws of the United States, or any bank, savings institution, or trust company organized and supervised under the laws of any state;
Was this issued by or guaranteed by a bank? Not quite.
(d) Any security issued by and representing an interest in or a debt of, or guaranteed by, any federal savings and loan association, or any building and loan or similar association organized under the laws of any state and authorized to do business in this state;
Was this issue issued by or otherwise associated, as stated above, with a federal S&L, etc? No.<B/>
(e) Any security issued or guaranteed by any federal credit union or any credit union, or similar association organized and supervised under the laws of this state;
Credit union or similar association? No.
(g) Any commercial paper which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which evidences an obligation to pay cash within 9 months of the date of issuance, exclusive of days of grace, or any renewal of the paper which is likewise limited, or any guarantee of the paper or of any renewal which are not advertised for sale to the general public in newspapers or other publications of general circulation or otherwise, or by radio, television or direct mailing;
This wasn't commercial paper.
(h) Any interest in any employee's savings, stock purchase, pension, profit sharing or similar benefit plan, including, but not limited to a plan that provides for direct purchases of the employer's securities and options by employees or a self-employed person's retirement plan so long as the issuer's board of directors has approved the plan and its primary purpose is to benefit employees rather than to raise capital;
Was this an interest in any sort of retirement plan or pension fund, etc., as stated above? No.
(j) Any interest in a common trust fund or similar fund maintained by a state bank or trust company organized and operating under the laws of said state, or a national bank wherever located, for the collective investment and reinvestment of funds contributed to such common trust fund or similar fund by the bank or trust company in its capacity as trustee, executor, administrator, or guardian; and any interest in a collective investment fund or similar fund maintained by the bank or trust company, or in a separate account maintained by an insurance company, for the collective investment and reinvestment of funds contributed to such collective investment fund or similar fund by the bank, trust company or insurance company in its capacity as trustee or agent, which interest is issued in connection with an employee's savings, pension, profit sharing, or similar benefit plan, or a self-employed person's retirement plan;
Any trust fund, benefit plan, or state company as above defined? No.
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(b) Effecting transactions exempted from 421-B:17, II(a), (d), (e), (f), (g), (i), (j), (k), ( l ), (m), (n), ( o ), (p)(1), or (q);
(a) Any isolated sales, whether or not effected through a broker-dealer, provided that no person shall make more than 5 sales, in total, of securities of the same issuer, in all jurisdictions combined, other than those designated in 421-B:17, I(h), II(g), II(l) and II(p)(1), during any period of 12 consecutive months; provided further that in the case of sales by an issuer, except sales of securities registered under the Securities Act of 1933 or exempted by section
3(b) of that act, the seller reasonably believes that all buyers are purchasing for investment.
Is a private placement an "investment?" The sophisticated nature of it - typically only permitting accredited investors to get involved with them - would imply that it's beyond a simple "investment."
(d) Any non-issuer sale of notes or bonds secured by a mortgage lien if the entire mortgage, together with all notes or bonds secured thereby, is sold to a single purchaser at a single sale.
Did this offer have anything to do with mortgage liens or other mortgage-associated or -backed securities? No.
(e) Any judicial sale, exchange, or issuance of securities made pursuant to an order of a court of competent jurisdiction.
Was this sale made pursuant to a court order? No.
(f) The sale, by a pledgeholder, of a security pledged with him in good faith as collateral for a bona fide debt.
Was the sale made by a pledgeholder? No.
(g) Any offer or sale to a bank savings institution, trust company, insurance company, investment company as defined in the Investment Company Act of 1940, pension or profit sharing trust, a venture capital company which operates a small business investment company under the Small Business Investment Act of 1958, as amended, or other financial institution or institutional buyer, or to a broker-dealer, whether the purchaser is acting for itself or in some fiduciary capacity.
Was the offer made to a bank, trust company, or any of the firms above named? Highly doubtful. They're not typically big on private placements, and would laugh 99% of OTCBB-related issue solicitations right out the door.
(i) Any offer, but not a sale, of a security for which a registration statement has been filed under both this chapter and the Securities Act of 1933, if no stop order or refusal order is in effect and no public proceeding or examination looking toward such an order is pending under either act; and any offer of a security if the sale of such security is or would be exempt under this section. The secretary of state may by rule or order exempt such other offers, but not sales, of securities for which a registration statement has been filed, consistent with the purposes of this chapter.
Was a registration statement filed for this offering? LOL.
(j) The offer and sale by a cooperative association organized under the laws of said state of its securities when such securities are offered and sold only to its members, or when the purchase of such securities is necessary or incidental to establishing membership in such association, or when such securities are issued as patronage dividends.
Was the sale or offer made by a state association or organization? Was the issue a "patronage dividend?" No, and no.
(k) Any offer or sale of securities, including offers and sales pursuant to preorganization subscriptions for the securities of an issuer to be formed, by a corporation, limited partnership, registered limited liability partnership, or limited liability company having its principal office in the state in question if, after giving effect to the sale, the aggregate number of holders of all of the issuer's securities, all of whom shall have purchased for investment, does not exceed 10, exclusive of persons designated in subparagraph (g), provided that no commission or other remuneration has been paid and no advertising has been published or circulated in connection with any such sale, and all sales are consummated within 60 days after the date of incorporation or formation of the issuer. The secretary of state may by rule or order increase the number of persons to whom sales may be made under this exemption.
Were these offers made within 60 days after the formation of the company which backed the PP? And, on top of that, were less than 10 investors involved? What does the statute of the state in which the company behind the PP - in particular, their secretary of state - require?
( l ) The issuance and delivery of any securities of one corporation to another corporation or its securities holders in exchange for the acquisition by the issuer or a subsidiary of the issuer of all or substantially all of the assets of such other corporation, or in connection with a consolidation or merger of such corporation or a share exchange between the issuer or a subsidiary of the issuer and such other corporation, provided that the secretary of state has been furnished with a general description of the transaction and with such other information as he prescribes by rule not less than 10 business days prior to such issuance and delivery.
Was this offering associated with a merger or acquisition? No.
(m) Any transaction between the issuer or other person on whose behalf the offering is made and an underwriter or among underwriters.
Was an underwriter involved? A syndicate? If so, who or whom were they?
(n) The distribution by a corporation of its or other securities to its own security holders as a stock dividend or as a dividend from earnings or surplus or as a liquidating distribution; or upon conversion of an outstanding convertible security; or pursuant to a stock split or reverse stock split.
Obviously this wasn't an offer to the company's "own security holders" as part of a dividend or earnings distribution...
(o) Any offer or sale of securities by an affiliate of the issuer of the securities if:
(1) A registration statement is in effect with respect to securities of the same class of such issuer, and
(2) Such offer or sale has been exempted from registration by rule or order of the secretary of state.
Was a registration statement in effect? No.
(p) Any transaction pursuant to an offer to existing security holders of the issuer, where the securities held by such existing security holders were issued by the issuers for value, including, but not limited to, persons who at the time of the transaction are holders of convertible securities, non-transferable warrants, or transferable warrants exercisable within not more than 90 days of their issuance, if:
(1) No commission or other remuneration (other than a standby commission) is paid or given directly or indirectly for soliciting any security holder in this state, or
Did this transaction revolve around convertibles, warrants, and the like...specifically involving existing security holders? No.
(q) Any acquisitions or mergers made pursuant to RSA 384:57-60, governing interstate acquisitions and mergers of banks and bank holding companies.
Was this an interstate merger or acquisition involving a bank or bank holding company? No.
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(c) Effecting transactions with existing employees, partners or directors of the issuer if no commission or other remuneration is paid or given directly or indirectly for soliciting any person in this state;
Were existing employees, partners, or directors of the issuers solicited? No. What would the point have been, then?
(d) Effecting transactions in securities registered by notification under RSA 421-B:12 if no commission or other remuneration is paid or given directly or indirectly for soliciting any person in this state; or
No. Private placements are not registered by notification, qualification or coordination.
(e) Effecting other transactions, if such individual is an officer or director of the issuer, no commission or other remuneration is paid or given directly or indirectly for soliciting any person in this state, and upon application, such individual is specifically authorized by name in an order issued by the secretary of state. A Form U-4 as prepared by the National Association of Securities Dealers and the Securities and Exchange Commission shall be filed and authorization obtained from the secretary of state before any offers are made.
Is Francois an officer or director of the issuer...? |
