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Recurrent Rogations Regarding California's Section 25102(f) Exemption

Section 25102(f) is perhaps the most commonly used exemption from qualification under the California Corporate Securities Law of 1968.  Here are just a few of the questions that the Department of Business Oversight receives concerning the exemption:

Is the exemption available for the offer and sale of limited partnership interests?

Yes.  Some exemptions, such as Section 25102(e), are limited to particular types of securities.  Section 25102(f), however, exempts the offer or sale of any security provided, of course, the statutory conditions are met.  This means that it could be used to offer or sell shares of stock, partnership interests, membership interests, debt, or any other security.  For the definition of "security", see Section 25019.

Is the exemption available for recapitalization or reorganization transactions subject to qualification under Section 25120?

No.  All of the exemptions under Section 25102 are transactional exemptions from the qualification requirement for issuer transactions under Section 25110.  If this is disappointing, you may want to peruse the exemptions created by Section 25103(h) and 10 CCR § 260.103.

One condition to the exemption is that sales are not made to more than 35 persons.  Does this mean 35 persons in California?

No.  The exemption is limited to sales of total of 35 persons regardless of their location within or outside of California.  Note, however, that some persons don't count.  See Section 25102(f)(4) and 10 CCR § 260.102.13.  Thus, there is an unlimited number of excluded purchasers (provided that the other conditions of the exemption are satisfied).

Must the issuer file a notice of exemption?

Yes.  The Commissioner requires that a notice of transaction be filed.  10 CCR § 260.102.14.  However, the statute provides that the failure to file the notice (or the failure to file it timely) does not affect the availability of the exemption.  However, a dilatory filing will result in the issuer being required to pay the fee payable had the transaction been qualified.  This could result in an increased fee of more than $2,000.

Must the issuer impose a legend on securities issued pursuant to the exemption?

No.  California doesn't impose a legend requirement on securities sold in reliance upon Section 25102(f).  However, a legend may be necessary or advisable if the issuer is also relying on an exemption under federal or another state's law.

Special Note to Readers:  This is not a complete description of the exemption found in Section 25102(f) nor is it legal advice.  If you are not an experienced securities lawyer, please consult one.

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30172DBAB0084D3A8F39D7AF0A8E79BC.ashx Keith Paul Bishop
Partner at Allen Matkins
(949) 353-6328
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