He could have filed an exemption pre-2005. However, you still have to file Reg S and Reg D sales seperate of quarterly and annual filings.
Post-2005, when the SEC demands updated filings and to remain updated at all times, you cannot file the exemption.\
Hint: the T/A can tell you exactly how many shareholders there are and it's more than 80. By the way, how come wanker has not paid his fees to Empire?
In fact, you kind of shoot yourself in the foot if you tried to claim less than 300 shareholders of record when you know via a sham lawsuit there are far more.