409.1-102. In this act, unless the context otherwise requires:
(1) "Agent" means an individual, other than a broker-dealer, whorepresents a broker-dealer in effecting or attempting to effect purchases orsales of securities or represents an issuer in effecting or attempting toeffect purchases or sales of the issuer's securities. But a partner, officer,or director of a broker-dealer or issuer, or an individual having a similarstatus or performing similar functions is an agent only if the individualotherwise comes within the term. The term does not include an individualexcluded by rule adopted or order issued under this act.
(2) "Commissioner" means the commissioner of securities appointed by thesecretary of state.
(3) "Bank" means:
(A) A banking institution organized under the laws of the United States;
(B) A member bank of the Federal Reserve System;
(C) Any other banking institution, whether incorporated or not, doingbusiness under the laws of a state or of the United States, a substantialportion of the business of which consists of receiving deposits or exercisingfiduciary powers similar to those permitted to be exercised by national banksunder the authority of the Comptroller of the Currency pursuant to Section 1of Public Law 87-722 (12 U.S.C. Section 92a), and which is supervised andexamined by a state or federal agency having supervision over banks, and whichis not operated for the purpose of evading this act; and
(D) A receiver, conservator, or other liquidating agent of anyinstitution or firm included in subparagraph (A), (B), or (C).
(4) "Broker-dealer" means a person engaged in the business of effectingtransactions in securities for the account of others or for the person's ownaccount. The term does not include:
(A) An agent;
(B) An issuer;
(C) A bank, a trust company organized or chartered under the laws ofthis state, or a savings institution, if its activities as a broker-dealer arelimited to those specified in subsections 3(a)(4)(B)(i) to (vi), (viii) to(x), and (xi) if limited to unsolicited transactions; 3(a)(5)(B); and3(a)(5)(C) of the Securities Exchange Act of 1934 (15 U.S.C. Sections78c(a)(4) and (5)) or a bank that satisfies the conditions described insubsection 3(a)(4)(E) of the Securities Exchange Act of 1934 (15 U.S.C.Section 78c(a)(4));
(D) An international banking institution; or
(E) A person excluded by rule adopted or order issued under this act.
(5) "Depository institution" means:
(A) A bank; or
(B) A savings institution, trust company, credit union, or similarinstitution that is organized or chartered under the laws of a state or of theUnited States, authorized to receive deposits, and supervised and examined byan official or agency of a state or the United States if its deposits or shareaccounts are insured to the maximum amount authorized by statute by theFederal Deposit Insurance Corporation, the National Credit Union ShareInsurance Fund, or a successor authorized by federal law. The term does notinclude:
(i) An insurance company or other organization primarily engaged in thebusiness of insurance;
(ii) A Morris Plan bank; or
(iii) An industrial loan company.
(6) "Federal covered investment adviser" means a person registered underthe Investment Advisers Act of 1940.
(7) "Federal covered security" means a security that is, or uponcompletion of a transaction will be, a covered security under Section 18(b) ofthe Securities Act of 1933 (15 U.S.C. Section 77r(b)) or rules or regulationsadopted pursuant to that provision.
(8) "Filing" means the receipt under this act of a record by thecommissioner or a designee of the commissioner.
(9) "Fraud", "deceit", and "defraud" are not limited to common lawdeceit.
(10) "Guaranteed" means guaranteed as to payment of all principal andall interest.
(11) "Institutional investor" means any of the following, whether actingfor itself or for others in a fiduciary capacity:
(A) A depository institution, a trust company organized or charteredunder the laws of this state, or an international banking institution;
(B) An insurance company;
(C) A separate account of an insurance company;
(D) An investment company as defined in the Investment Company Act of1940;
(E) A broker-dealer registered under the Securities Exchange Act of1934;
(F) An employee pension, profit-sharing, or benefit plan if the plan hastotal assets in excess of ten million dollars or its investment decisions aremade by a named fiduciary, as defined in the Employee Retirement IncomeSecurity Act of 1974, that is a broker-dealer registered under the SecuritiesExchange Act of 1934, an investment adviser registered or exempt fromregistration under the Investment Advisers Act of 1940, an investment adviserregistered under this act, a depository institution, or an insurance company;
(G) A plan established and maintained by a state, a politicalsubdivision of a state, or an agency or instrumentality of a state or apolitical subdivision of a state for the benefit of its employees, if the planhas total assets in excess of ten million dollars or its investment decisionsare made by a duly designated public official or by a named fiduciary, asdefined in the Employee Retirement Income Security Act of 1974, that is abroker-dealer registered under the Securities Exchange Act of 1934, aninvestment adviser registered or exempt from registration under the InvestmentAdvisers Act of 1940, an investment adviser registered under this act, adepository institution, or an insurance company;
(H) A trust, if it has total assets in excess of ten million dollars,its trustee is a depository institution, and its participants are exclusivelyplans of the types identified in subparagraph (F) or (G), regardless of thesize of their assets, except a trust that includes as participantsself-directed individual retirement accounts or similar self-directed plans;
(I) An organization described in Section 501(c)(3) of the InternalRevenue Code (26 U.S.C. Section 501(c)(3)), corporation, Massachusetts trustor similar business trust, limited liability company, or partnership, notformed for the specific purpose of acquiring the securities offered, withtotal assets in excess of ten million dollars;
(J) A small business investment company licensed by the Small BusinessAdministration under Section 301(c) of the Small Business Investment Act of1958 (15 U.S.C. Section 681(c)) with total assets in excess of ten milliondollars;
(K) A private business development company as defined in Section202(a)(22) of the Investment Advisers Act of 1940 (15 U.S.C. Section80b-2(a)(22)) with total assets in excess of ten million dollars;
(L) A federal covered investment adviser acting for its own account;
(M) A "qualified institutional buyer" as defined in Rule 144A(a)(1),other than Rule 144A(a)(1)(H), adopted under the Securities Act of 1933 (17C.F.R. 230.144A);
(N) A "major U.S. institutional investor" as defined in Rule15a-6(b)(4)(i) adopted under the Securities Exchange Act of 1934 (17 C.F.R.240.15a-6);
(O) Any other person, other than an individual, of institutionalcharacter with total assets in excess of ten million dollars not organized forthe specific purpose of evading this act; or
(P) Any other person specified by rule adopted or order issued underthis act.
(12) "Insurance company" means a company organized as an insurancecompany whose primary business is writing insurance or reinsuring risksunderwritten by insurance companies and which is subject to supervision by theinsurance commissioner or a similar official or agency of a state.
(13) "Insured" means insured as to payment of all principal and allinterest.
(14) "International banking institution" means an internationalfinancial institution of which the United States is a member and whosesecurities are exempt from registration under the Securities Act of 1933.
(15) "Investment adviser" means a person that, for compensation, engagesin the business of advising others, either directly or through publications orwritings, as to the value of securities or the advisability of investing in,purchasing, or selling securities or that, for compensation and as a part of aregular business, issues or promulgates analyses or reports concerningsecurities. The term includes a financial planner or other person that, as anintegral component of other financially related services, provides investmentadvice to others for compensation as part of a business or that holds itselfout as providing investment advice to others for compensation. The term doesnot include:
(A) An investment adviser representative;
(B) A lawyer, accountant, engineer, or teacher whose performance ofinvestment advice is solely incidental to the practice of the person'sprofession;
(C) A broker-dealer or its agents whose performance of investment adviceis solely incidental to the conduct of business as a broker-dealer and thatdoes not receive special compensation for the investment advice;
(D) A publisher of a bona fide newspaper, news magazine, or business orfinancial publication of general and regular circulation;
(E) A federal covered investment adviser;
(F) A bank, a trust company organized or chartered under the laws ofthis state, or a savings institution;
(G) Any other person that is excluded by the Investment Advisers Act of1940 from the definition of investment adviser; or
(H) Any other person excluded by rule adopted or order issued under thisact.
(16) "Investment adviser representative" means an individual employed byor associated with an investment adviser or federal covered investment adviserand who makes any recommendations or otherwise gives investment adviceregarding securities, manages accounts or portfolios of clients, determineswhich recommendation or advice regarding securities should be given, providesinvestment advice or holds herself or himself out as providing investmentadvice, receives compensation to solicit, offer, or negotiate for the sale ofor for selling investment advice, or supervises employees who perform any ofthe foregoing. The term does not include an individual who:
(A) Performs only clerical or ministerial acts;
(B) Is an agent whose performance of investment advice is solelyincidental to the individual acting as an agent and who does not receivespecial compensation for investment advisory services;
(C) Is employed by or associated with a federal covered investmentadviser, unless the individual has a "place of business" in this state as thatterm is defined by rule adopted under Section 203A of the Investment AdvisersAct of 1940 (15 U.S.C. Section 80b-3a) and is:
(i) An "investment adviser representative" as that term is defined byrule adopted under Section 203A of the Investment Advisers Act of 1940 (15U.S.C. Section 80b-3a); or
(ii) Not a "supervised person" as that term is defined in Section202(a)(25) of the Investment Advisers Act of 1940 (15 U.S.C. Section80b-2(a)(25)); or
(D) Is excluded by rule adopted or order issued under this act.
(17) "Issuer" means a person that issues or proposes to issue asecurity, subject to the following:
(A) The issuer of a voting trust certificate, collateral trustcertificate, certificate of deposit for a security, or share in an investmentcompany without a board of directors or individuals performing similarfunctions is the person performing the acts and assuming the duties ofdepositor or manager pursuant to the trust or other agreement or instrumentunder which the security is issued.
(B) The issuer of an equipment trust certificate or similar securityserving the same purpose is the person by which the property is or will beused or to which the property or equipment is or will be leased orconditionally sold or that is otherwise contractually responsible for assuringpayment of the certificate.
(C) The issuer of a fractional undivided interest in an oil, gas, orother mineral lease or in payments out of production under a lease, right, orroyalty is the owner of an interest in the lease or in payments out ofproduction under a lease, right, or royalty, whether whole or fractional, thatcreates fractional interests for the purpose of sale.
(18) "Nonissuer transaction" or "nonissuer distribution" means atransaction or distribution not directly or indirectly for the benefit of theissuer.
(19) "Offer to purchase" includes an attempt or offer to obtain, orsolicitation of an offer to sell, a security or interest in a security forvalue. The term does not include a tender offer that is subject to Section14(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78n(d)).
(20) "Person" means an individual; corporation; business trust; estate;trust; partnership; limited liability company; association; joint venture;government; governmental subdivision, agency, or instrumentality; publiccorporation; or any other legal or commercial entity.
(21) "Place of business" of a broker-dealer, an investment adviser, or afederal covered investment adviser means:
(A) An office at which the broker-dealer, investment adviser, or federalcovered investment adviser regularly provides brokerage or investment adviceor solicits, meets with, or otherwise communicates with customers or clients;or
(B) Any other location that is held out to the general public as alocation at which the broker-dealer, investment adviser, or federal coveredinvestment adviser provides brokerage or investment advice or solicits, meetswith, or otherwise communicates with customers or clients.
(22) "Predecessor act" means sections 409.101, 409.102 and 409.201 to409.421, as repealed by this act.
(23) "Price amendment" means the amendment to a registration statementfiled under the Securities Act of 1933 or, if an amendment is not filed, theprospectus or prospectus supplement filed under the Securities Act of 1933that includes a statement of the offering price, underwriting and sellingdiscounts or commissions, amount of proceeds, conversion rates, call prices,and other matters dependent upon the offering price.
(24) "Principal place of business" of a broker-dealer or an investmentadviser means the executive office of the broker-dealer or investment adviserfrom which the officers, partners, or managers of the broker-dealer orinvestment adviser direct, control, and coordinate the activities of thebroker-dealer or investment adviser.
(25) "Record", except in the phrases "of record", "official record", and"public record", means information that is inscribed on a tangible medium orthat is stored in an electronic or other medium and is retrievable inperceivable form.
(26) "Sale" includes every contract of sale, contract to sell, ordisposition of, a security or interest in a security for value, and "offer tosell" includes every attempt or offer to dispose of, or solicitation of anoffer to purchase, a security or interest in a security for value. Both termsinclude:
(A) A security given or delivered with, or as a bonus on account of, apurchase of securities or any other thing constituting part of the subject ofthe purchase and having been offered and sold for value;
(B) A gift of assessable stock involving an offer and sale; and
(C) A sale or offer of a warrant or right to purchase or subscribe toanother security of the same or another issuer and a sale or offer of asecurity that gives the holder a present or future right or privilege toconvert the security into another security of the same or another issuer,including an offer of the other security.
(27) "Securities and Exchange Commission" means the United StatesSecurities and Exchange Commission.
(28) "Security" means a note; stock; treasury stock; security future;bond; debenture; evidence of indebtedness; certificate of interest orparticipation in a profit-sharing agreement; collateral trust certificate;preorganization certificate or subscription; transferable share; investmentcontract; voting trust certificate; certificate of deposit for a security;fractional undivided interest in oil, gas, or other mineral rights; put, call,straddle, option, or privilege on a security, certificate of deposit, or groupor index of securities, including an interest therein or based on the valuethereof; put, call, straddle, option, or privilege entered into on a nationalsecurities exchange relating to foreign currency; or, in general, an interestor instrument commonly known as a "security"; or a certificate of interest orparticipation in, temporary or interim certificate for, receipt for, guaranteeof, or warrant or right to subscribe to or purchase, any of the foregoing.The term:
(A) Includes both a certificated and an uncertificated security;
(B) Does not include an insurance or endowment policy or annuitycontract under which an insurance company promises to pay money either in alump sum or periodically for life or other specified period;
(C) Does not include an interest in a contributory or noncontributorypension or welfare plan subject to the Employee Retirement Income Security Actof 1974;
(D) Includes as an "investment contract" an investment in a commonenterprise with the expectation of profits to be derived primarily from theefforts of a person other than the investor and a "common enterprise" means anenterprise in which the fortunes of the investor are interwoven with those ofeither the person offering the investment, a third party, or other investors;and
(E) May include as an "investment contract", among other contracts, aninterest in a limited partnership and a limited liability company and aninvestment in a viatical settlement or similar agreement.
(29) "Self-regulatory organization" means a national securities exchangeregistered under the Securities Exchange Act of 1934, a national securitiesassociation of broker-dealers registered under the Securities Exchange Act of1934, a clearing agency registered under the Securities Exchange Act of 1934,or the Municipal Securities Rulemaking Board established under the SecuritiesExchange Act of 1934.
(30) "Sign" means, with present intent to authenticate or adopt arecord:
(A) To execute or adopt a tangible symbol; or
(B) To attach or logically associate with the record an electronicsymbol, sound, or process.
(31) "State" means a state of the United States, the District ofColumbia, Puerto Rico, the United States Virgin Islands, or any territory orinsular possession subject to the jurisdiction of the United States.
409.1-102. In this act, unless the context otherwise requires:
(1) "Agent" means an individual, other than a broker-dealer, whorepresents a broker-dealer in effecting or attempting to effect purchases orsales of securities or represents an issuer in effecting or attempting toeffect purchases or sales of the issuer's securities. But a partner, officer,or director of a broker-dealer or issuer, or an individual having a similarstatus or performing similar functions is an agent only if the individualotherwise comes within the term. The term does not include an individualexcluded by rule adopted or order issued under this act.
(2) "Commissioner" means the commissioner of securities appointed by thesecretary of state.
(3) "Bank" means:
(A) A banking institution organized under the laws of the United States;
(B) A member bank of the Federal Reserve System;
(C) Any other banking institution, whether incorporated or not, doingbusiness under the laws of a state or of the United States, a substantialportion of the business of which consists of receiving deposits or exercisingfiduciary powers similar to those permitted to be exercised by national banksunder the authority of the Comptroller of the Currency pursuant to Section 1of Public Law 87-722 (12 U.S.C. Section 92a), and which is supervised andexamined by a state or federal agency having supervision over banks, and whichis not operated for the purpose of evading this act; and
(D) A receiver, conservator, or other liquidating agent of anyinstitution or firm included in subparagraph (A), (B), or (C).
(4) "Broker-dealer" means a person engaged in the business of effectingtransactions in securities for the account of others or for the person's ownaccount. The term does not include:
(A) An agent;
(B) An issuer;
(C) A bank, a trust company organized or chartered under the laws ofthis state, or a savings institution, if its activities as a broker-dealer arelimited to those specified in subsections 3(a)(4)(B)(i) to (vi), (viii) to(x), and (xi) if limited to unsolicited transactions; 3(a)(5)(B); and3(a)(5)(C) of the Securities Exchange Act of 1934 (15 U.S.C. Sections78c(a)(4) and (5)) or a bank that satisfies the conditions described insubsection 3(a)(4)(E) of the Securities Exchange Act of 1934 (15 U.S.C.Section 78c(a)(4));
(D) An international banking institution; or
(E) A person excluded by rule adopted or order issued under this act.
(5) "Depository institution" means:
(A) A bank; or
(B) A savings institution, trust company, credit union, or similarinstitution that is organized or chartered under the laws of a state or of theUnited States, authorized to receive deposits, and supervised and examined byan official or agency of a state or the United States if its deposits or shareaccounts are insured to the maximum amount authorized by statute by theFederal Deposit Insurance Corporation, the National Credit Union ShareInsurance Fund, or a successor authorized by federal law. The term does notinclude:
(i) An insurance company or other organization primarily engaged in thebusiness of insurance;
(ii) A Morris Plan bank; or
(iii) An industrial loan company.
(6) "Federal covered investment adviser" means a person registered underthe Investment Advisers Act of 1940.
(7) "Federal covered security" means a security that is, or uponcompletion of a transaction will be, a covered security under Section 18(b) ofthe Securities Act of 1933 (15 U.S.C. Section 77r(b)) or rules or regulationsadopted pursuant to that provision.
(8) "Filing" means the receipt under this act of a record by thecommissioner or a designee of the commissioner.
(9) "Fraud", "deceit", and "defraud" are not limited to common lawdeceit.
(10) "Guaranteed" means guaranteed as to payment of all principal andall interest.
(11) "Institutional investor" means any of the following, whether actingfor itself or for others in a fiduciary capacity:
(A) A depository institution, a trust company organized or charteredunder the laws of this state, or an international banking institution;
(B) An insurance company;
(C) A separate account of an insurance company;
(D) An investment company as defined in the Investment Company Act of1940;
(E) A broker-dealer registered under the Securities Exchange Act of1934;
(F) An employee pension, profit-sharing, or benefit plan if the plan hastotal assets in excess of ten million dollars or its investment decisions aremade by a named fiduciary, as defined in the Employee Retirement IncomeSecurity Act of 1974, that is a broker-dealer registered under the SecuritiesExchange Act of 1934, an investment adviser registered or exempt fromregistration under the Investment Advisers Act of 1940, an investment adviserregistered under this act, a depository institution, or an insurance company;
(G) A plan established and maintained by a state, a politicalsubdivision of a state, or an agency or instrumentality of a state or apolitical subdivision of a state for the benefit of its employees, if the planhas total assets in excess of ten million dollars or its investment decisionsare made by a duly designated public official or by a named fiduciary, asdefined in the Employee Retirement Income Security Act of 1974, that is abroker-dealer registered under the Securities Exchange Act of 1934, aninvestment adviser registered or exempt from registration under the InvestmentAdvisers Act of 1940, an investment adviser registered under this act, adepository institution, or an insurance company;
(H) A trust, if it has total assets in excess of ten million dollars,its trustee is a depository institution, and its participants are exclusivelyplans of the types identified in subparagraph (F) or (G), regardless of thesize of their assets, except a trust that includes as participantsself-directed individual retirement accounts or similar self-directed plans;
(I) An organization described in Section 501(c)(3) of the InternalRevenue Code (26 U.S.C. Section 501(c)(3)), corporation, Massachusetts trustor similar business trust, limited liability company, or partnership, notformed for the specific purpose of acquiring the securities offered, withtotal assets in excess of ten million dollars;
(J) A small business investment company licensed by the Small BusinessAdministration under Section 301(c) of the Small Business Investment Act of1958 (15 U.S.C. Section 681(c)) with total assets in excess of ten milliondollars;
(K) A private business development company as defined in Section202(a)(22) of the Investment Advisers Act of 1940 (15 U.S.C. Section80b-2(a)(22)) with total assets in excess of ten million dollars;
(L) A federal covered investment adviser acting for its own account;
(M) A "qualified institutional buyer" as defined in Rule 144A(a)(1),other than Rule 144A(a)(1)(H), adopted under the Securities Act of 1933 (17C.F.R. 230.144A);
(N) A "major U.S. institutional investor" as defined in Rule15a-6(b)(4)(i) adopted under the Securities Exchange Act of 1934 (17 C.F.R.240.15a-6);
(O) Any other person, other than an individual, of institutionalcharacter with total assets in excess of ten million dollars not organized forthe specific purpose of evading this act; or
(P) Any other person specified by rule adopted or order issued underthis act.
(12) "Insurance company" means a company organized as an insurancecompany whose primary business is writing insurance or reinsuring risksunderwritten by insurance companies and which is subject to supervision by theinsurance commissioner or a similar official or agency of a state.
(13) "Insured" means insured as to payment of all principal and allinterest.
(14) "International banking institution" means an internationalfinancial institution of which the United States is a member and whosesecurities are exempt from registration under the Securities Act of 1933.
(15) "Investment adviser" means a person that, for compensation, engagesin the business of advising others, either directly or through publications orwritings, as to the value of securities or the advisability of investing in,purchasing, or selling securities or that, for compensation and as a part of aregular business, issues or promulgates analyses or reports concerningsecurities. The term includes a financial planner or other person that, as anintegral component of other financially related services, provides investmentadvice to others for compensation as part of a business or that holds itselfout as providing investment advice to others for compensation. The term doesnot include:
(A) An investment adviser representative;
(B) A lawyer, accountant, engineer, or teacher whose performance ofinvestment advice is solely incidental to the practice of the person'sprofession;
(C) A broker-dealer or its agents whose performance of investment adviceis solely incidental to the conduct of business as a broker-dealer and thatdoes not receive special compensation for the investment advice;
(D) A publisher of a bona fide newspaper, news magazine, or business orfinancial publication of general and regular circulation;
(E) A federal covered investment adviser;
(F) A bank, a trust company organized or chartered under the laws ofthis state, or a savings institution;
(G) Any other person that is excluded by the Investment Advisers Act of1940 from the definition of investment adviser; or
(H) Any other person excluded by rule adopted or order issued under thisact.
(16) "Investment adviser representative" means an individual employed byor associated with an investment adviser or federal covered investment adviserand who makes any recommendations or otherwise gives investment adviceregarding securities, manages accounts or portfolios of clients, determineswhich recommendation or advice regarding securities should be given, providesinvestment advice or holds herself or himself out as providing investmentadvice, receives compensation to solicit, offer, or negotiate for the sale ofor for selling investment advice, or supervises employees who perform any ofthe foregoing. The term does not include an individual who:
(A) Performs only clerical or ministerial acts;
(B) Is an agent whose performance of investment advice is solelyincidental to the individual acting as an agent and who does not receivespecial compensation for investment advisory services;
(C) Is employed by or associated with a federal covered investmentadviser, unless the individual has a "place of business" in this state as thatterm is defined by rule adopted under Section 203A of the Investment AdvisersAct of 1940 (15 U.S.C. Section 80b-3a) and is:
(i) An "investment adviser representative" as that term is defined byrule adopted under Section 203A of the Investment Advisers Act of 1940 (15U.S.C. Section 80b-3a); or
(ii) Not a "supervised person" as that term is defined in Section202(a)(25) of the Investment Advisers Act of 1940 (15 U.S.C. Section80b-2(a)(25)); or
(D) Is excluded by rule adopted or order issued under this act.
(17) "Issuer" means a person that issues or proposes to issue asecurity, subject to the following:
(A) The issuer of a voting trust certificate, collateral trustcertificate, certificate of deposit for a security, or share in an investmentcompany without a board of directors or individuals performing similarfunctions is the person performing the acts and assuming the duties ofdepositor or manager pursuant to the trust or other agreement or instrumentunder which the security is issued.
(B) The issuer of an equipment trust certificate or similar securityserving the same purpose is the person by which the property is or will beused or to which the property or equipment is or will be leased orconditionally sold or that is otherwise contractually responsible for assuringpayment of the certificate.
(C) The issuer of a fractional undivided interest in an oil, gas, orother mineral lease or in payments out of production under a lease, right, orroyalty is the owner of an interest in the lease or in payments out ofproduction under a lease, right, or royalty, whether whole or fractional, thatcreates fractional interests for the purpose of sale.
(18) "Nonissuer transaction" or "nonissuer distribution" means atransaction or distribution not directly or indirectly for the benefit of theissuer.
(19) "Offer to purchase" includes an attempt or offer to obtain, orsolicitation of an offer to sell, a security or interest in a security forvalue. The term does not include a tender offer that is subject to Section14(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78n(d)).
(20) "Person" means an individual; corporation; business trust; estate;trust; partnership; limited liability company; association; joint venture;government; governmental subdivision, agency, or instrumentality; publiccorporation; or any other legal or commercial entity.
(21) "Place of business" of a broker-dealer, an investment adviser, or afederal covered investment adviser means:
(A) An office at which the broker-dealer, investment adviser, or federalcovered investment adviser regularly provides brokerage or investment adviceor solicits, meets with, or otherwise communicates with customers or clients;or
(B) Any other location that is held out to the general public as alocation at which the broker-dealer, investment adviser, or federal coveredinvestment adviser provides brokerage or investment advice or solicits, meetswith, or otherwise communicates with customers or clients.
(22) "Predecessor act" means sections 409.101, 409.102 and 409.201 to409.421, as repealed by this act.
(23) "Price amendment" means the amendment to a registration statementfiled under the Securities Act of 1933 or, if an amendment is not filed, theprospectus or prospectus supplement filed under the Securities Act of 1933that includes a statement of the offering price, underwriting and sellingdiscounts or commissions, amount of proceeds, conversion rates, call prices,and other matters dependent upon the offering price.
(24) "Principal place of business" of a broker-dealer or an investmentadviser means the executive office of the broker-dealer or investment adviserfrom which the officers, partners, or managers of the broker-dealer orinvestment adviser direct, control, and coordinate the activities of thebroker-dealer or investment adviser.
(25) "Record", except in the phrases "of record", "official record", and"public record", means information that is inscribed on a tangible medium orthat is stored in an electronic or other medium and is retrievable inperceivable form.
(26) "Sale" includes every contract of sale, contract to sell, ordisposition of, a security or interest in a security for value, and "offer tosell" includes every attempt or offer to dispose of, or solicitation of anoffer to purchase, a security or interest in a security for value. Both termsinclude:
(A) A security given or delivered with, or as a bonus on account of, apurchase of securities or any other thing constituting part of the subject ofthe purchase and having been offered and sold for value;
(B) A gift of assessable stock involving an offer and sale; and
(C) A sale or offer of a warrant or right to purchase or subscribe toanother security of the same or another issuer and a sale or offer of asecurity that gives the holder a present or future right or privilege toconvert the security into another security of the same or another issuer,including an offer of the other security.
(27) "Securities and Exchange Commission" means the United StatesSecurities and Exchange Commission.
(28) "Security" means a note; stock; treasury stock; security future;bond; debenture; evidence of indebtedness; certificate of interest orparticipation in a profit-sharing agreement; collateral trust certificate;preorganization certificate or subscription; transferable share; investmentcontract; voting trust certificate; certificate of deposit for a security;fractional undivided interest in oil, gas, or other mineral rights; put, call,straddle, option, or privilege on a security, certificate of deposit, or groupor index of securities, including an interest therein or based on the valuethereof; put, call, straddle, option, or privilege entered into on a nationalsecurities exchange relating to foreign currency; or, in general, an interestor instrument commonly known as a "security"; or a certificate of interest orparticipation in, temporary or interim certificate for, receipt for, guaranteeof, or warrant or right to subscribe to or purchase, any of the foregoing.The term:
(A) Includes both a certificated and an uncertificated security;
(B) Does not include an insurance or endowment policy or annuitycontract under which an insurance company promises to pay money either in alump sum or periodically for life or other specified period;
(C) Does not include an interest in a contributory or noncontributorypension or welfare plan subject to the Employee Retirement Income Security Actof 1974;
(D) Includes as an "investment contract" an investment in a commonenterprise with the expectation of profits to be derived primarily from theefforts of a person other than the investor and a "common enterprise" means anenterprise in which the fortunes of the investor are interwoven with those ofeither the person offering the investment, a third party, or other investors;and
(E) May include as an "investment contract", among other contracts, aninterest in a limited partnership and a limited liability company and aninvestment in a viatical settlement or similar agreement.
(29) "Self-regulatory organization" means a national securities exchangeregistered under the Securities Exchange Act of 1934, a national securitiesassociation of broker-dealers registered under the Securities Exchange Act of1934, a clearing agency registered under the Securities Exchange Act of 1934,or the Municipal Securities Rulemaking Board established under the SecuritiesExchange Act of 1934.
(30) "Sign" means, with present intent to authenticate or adopt arecord:
(A) To execute or adopt a tangible symbol; or
(B) To attach or logically associate with the record an electronicsymbol, sound, or process.
(31) "State" means a state of the United States, the District ofColumbia, Puerto Rico, the United States Virgin Islands, or any territory orinsular possession subject to the jurisdiction of the United States.
409.1-102. In this act, unless the context otherwise requires:
(1) "Agent" means an individual, other than a broker-dealer, whorepresents a broker-dealer in effecting or attempting to effect purchases orsales of securities or represents an issuer in effecting or attempting toeffect purchases or sales of the issuer's securities. But a partner, officer,or director of a broker-dealer or issuer, or an individual having a similarstatus or performing similar functions is an agent only if the individualotherwise comes within the term. The term does not include an individualexcluded by rule adopted or order issued under this act.
(2) "Commissioner" means the commissioner of securities appointed by thesecretary of state.
(3) "Bank" means:
(A) A banking institution organized under the laws of the United States;
(B) A member bank of the Federal Reserve System;
(C) Any other banking institution, whether incorporated or not, doingbusiness under the laws of a state or of the United States, a substantialportion of the business of which consists of receiving deposits or exercisingfiduciary powers similar to those permitted to be exercised by national banksunder the authority of the Comptroller of the Currency pursuant to Section 1of Public Law 87-722 (12 U.S.C. Section 92a), and which is supervised andexamined by a state or federal agency having supervision over banks, and whichis not operated for the purpose of evading this act; and
(D) A receiver, conservator, or other liquidating agent of anyinstitution or firm included in subparagraph (A), (B), or (C).
(4) "Broker-dealer" means a person engaged in the business of effectingtransactions in securities for the account of others or for the person's ownaccount. The term does not include:
(A) An agent;
(B) An issuer;
(C) A bank, a trust company organized or chartered under the laws ofthis state, or a savings institution, if its activities as a broker-dealer arelimited to those specified in subsections 3(a)(4)(B)(i) to (vi), (viii) to(x), and (xi) if limited to unsolicited transactions; 3(a)(5)(B); and3(a)(5)(C) of the Securities Exchange Act of 1934 (15 U.S.C. Sections78c(a)(4) and (5)) or a bank that satisfies the conditions described insubsection 3(a)(4)(E) of the Securities Exchange Act of 1934 (15 U.S.C.Section 78c(a)(4));
(D) An international banking institution; or
(E) A person excluded by rule adopted or order issued under this act.
(5) "Depository institution" means:
(A) A bank; or
(B) A savings institution, trust company, credit union, or similarinstitution that is organized or chartered under the laws of a state or of theUnited States, authorized to receive deposits, and supervised and examined byan official or agency of a state or the United States if its deposits or shareaccounts are insured to the maximum amount authorized by statute by theFederal Deposit Insurance Corporation, the National Credit Union ShareInsurance Fund, or a successor authorized by federal law. The term does notinclude:
(i) An insurance company or other organization primarily engaged in thebusiness of insurance;
(ii) A Morris Plan bank; or
(iii) An industrial loan company.
(6) "Federal covered investment adviser" means a person registered underthe Investment Advisers Act of 1940.
(7) "Federal covered security" means a security that is, or uponcompletion of a transaction will be, a covered security under Section 18(b) ofthe Securities Act of 1933 (15 U.S.C. Section 77r(b)) or rules or regulationsadopted pursuant to that provision.
(8) "Filing" means the receipt under this act of a record by thecommissioner or a designee of the commissioner.
(9) "Fraud", "deceit", and "defraud" are not limited to common lawdeceit.
(10) "Guaranteed" means guaranteed as to payment of all principal andall interest.
(11) "Institutional investor" means any of the following, whether actingfor itself or for others in a fiduciary capacity:
(A) A depository institution, a trust company organized or charteredunder the laws of this state, or an international banking institution;
(B) An insurance company;
(C) A separate account of an insurance company;
(D) An investment company as defined in the Investment Company Act of1940;
(E) A broker-dealer registered under the Securities Exchange Act of1934;
(F) An employee pension, profit-sharing, or benefit plan if the plan hastotal assets in excess of ten million dollars or its investment decisions aremade by a named fiduciary, as defined in the Employee Retirement IncomeSecurity Act of 1974, that is a broker-dealer registered under the SecuritiesExchange Act of 1934, an investment adviser registered or exempt fromregistration under the Investment Advisers Act of 1940, an investment adviserregistered under this act, a depository institution, or an insurance company;
(G) A plan established and maintained by a state, a politicalsubdivision of a state, or an agency or instrumentality of a state or apolitical subdivision of a state for the benefit of its employees, if the planhas total assets in excess of ten million dollars or its investment decisionsare made by a duly designated public official or by a named fiduciary, asdefined in the Employee Retirement Income Security Act of 1974, that is abroker-dealer registered under the Securities Exchange Act of 1934, aninvestment adviser registered or exempt from registration under the InvestmentAdvisers Act of 1940, an investment adviser registered under this act, adepository institution, or an insurance company;
(H) A trust, if it has total assets in excess of ten million dollars,its trustee is a depository institution, and its participants are exclusivelyplans of the types identified in subparagraph (F) or (G), regardless of thesize of their assets, except a trust that includes as participantsself-directed individual retirement accounts or similar self-directed plans;
(I) An organization described in Section 501(c)(3) of the InternalRevenue Code (26 U.S.C. Section 501(c)(3)), corporation, Massachusetts trustor similar business trust, limited liability company, or partnership, notformed for the specific purpose of acquiring the securities offered, withtotal assets in excess of ten million dollars;
(J) A small business investment company licensed by the Small BusinessAdministration under Section 301(c) of the Small Business Investment Act of1958 (15 U.S.C. Section 681(c)) with total assets in excess of ten milliondollars;
(K) A private business development company as defined in Section202(a)(22) of the Investment Advisers Act of 1940 (15 U.S.C. Section80b-2(a)(22)) with total assets in excess of ten million dollars;
(L) A federal covered investment adviser acting for its own account;
(M) A "qualified institutional buyer" as defined in Rule 144A(a)(1),other than Rule 144A(a)(1)(H), adopted under the Securities Act of 1933 (17C.F.R. 230.144A);
(N) A "major U.S. institutional investor" as defined in Rule15a-6(b)(4)(i) adopted under the Securities Exchange Act of 1934 (17 C.F.R.240.15a-6);
(O) Any other person, other than an individual, of institutionalcharacter with total assets in excess of ten million dollars not organized forthe specific purpose of evading this act; or
(P) Any other person specified by rule adopted or order issued underthis act.
(12) "Insurance company" means a company organized as an insurancecompany whose primary business is writing insurance or reinsuring risksunderwritten by insurance companies and which is subject to supervision by theinsurance commissioner or a similar official or agency of a state.
(13) "Insured" means insured as to payment of all principal and allinterest.
(14) "International banking institution" means an internationalfinancial institution of which the United States is a member and whosesecurities are exempt from registration under the Securities Act of 1933.
(15) "Investment adviser" means a person that, for compensation, engagesin the business of advising others, either directly or through publications orwritings, as to the value of securities or the advisability of investing in,purchasing, or selling securities or that, for compensation and as a part of aregular business, issues or promulgates analyses or reports concerningsecurities. The term includes a financial planner or other person that, as anintegral component of other financially related services, provides investmentadvice to others for compensation as part of a business or that holds itselfout as providing investment advice to others for compensation. The term doesnot include:
(A) An investment adviser representative;
(B) A lawyer, accountant, engineer, or teacher whose performance ofinvestment advice is solely incidental to the practice of the person'sprofession;
(C) A broker-dealer or its agents whose performance of investment adviceis solely incidental to the conduct of business as a broker-dealer and thatdoes not receive special compensation for the investment advice;
(D) A publisher of a bona fide newspaper, news magazine, or business orfinancial publication of general and regular circulation;
(E) A federal covered investment adviser;
(F) A bank, a trust company organized or chartered under the laws ofthis state, or a savings institution;
(G) Any other person that is excluded by the Investment Advisers Act of1940 from the definition of investment adviser; or
(H) Any other person excluded by rule adopted or order issued under thisact.
(16) "Investment adviser representative" means an individual employed byor associated with an investment adviser or federal covered investment adviserand who makes any recommendations or otherwise gives investment adviceregarding securities, manages accounts or portfolios of clients, determineswhich recommendation or advice regarding securities should be given, providesinvestment advice or holds herself or himself out as providing investmentadvice, receives compensation to solicit, offer, or negotiate for the sale ofor for selling investment advice, or supervises employees who perform any ofthe foregoing. The term does not include an individual who:
(A) Performs only clerical or ministerial acts;
(B) Is an agent whose performance of investment advice is solelyincidental to the individual acting as an agent and who does not receivespecial compensation for investment advisory services;
(C) Is employed by or associated with a federal covered investmentadviser, unless the individual has a "place of business" in this state as thatterm is defined by rule adopted under Section 203A of the Investment AdvisersAct of 1940 (15 U.S.C. Section 80b-3a) and is:
(i) An "investment adviser representative" as that term is defined byrule adopted under Section 203A of the Investment Advisers Act of 1940 (15U.S.C. Section 80b-3a); or
(ii) Not a "supervised person" as that term is defined in Section202(a)(25) of the Investment Advisers Act of 1940 (15 U.S.C. Section80b-2(a)(25)); or
(D) Is excluded by rule adopted or order issued under this act.
(17) "Issuer" means a person that issues or proposes to issue asecurity, subject to the following:
(A) The issuer of a voting trust certificate, collateral trustcertificate, certificate of deposit for a security, or share in an investmentcompany without a board of directors or individuals performing similarfunctions is the person performing the acts and assuming the duties ofdepositor or manager pursuant to the trust or other agreement or instrumentunder which the security is issued.
(B) The issuer of an equipment trust certificate or similar securityserving the same purpose is the person by which the property is or will beused or to which the property or equipment is or will be leased orconditionally sold or that is otherwise contractually responsible for assuringpayment of the certificate.
(C) The issuer of a fractional undivided interest in an oil, gas, orother mineral lease or in payments out of production under a lease, right, orroyalty is the owner of an interest in the lease or in payments out ofproduction under a lease, right, or royalty, whether whole or fractional, thatcreates fractional interests for the purpose of sale.
(18) "Nonissuer transaction" or "nonissuer distribution" means atransaction or distribution not directly or indirectly for the benefit of theissuer.
(19) "Offer to purchase" includes an attempt or offer to obtain, orsolicitation of an offer to sell, a security or interest in a security forvalue. The term does not include a tender offer that is subject to Section14(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78n(d)).
(20) "Person" means an individual; corporation; business trust; estate;trust; partnership; limited liability company; association; joint venture;government; governmental subdivision, agency, or instrumentality; publiccorporation; or any other legal or commercial entity.
(21) "Place of business" of a broker-dealer, an investment adviser, or afederal covered investment adviser means:
(A) An office at which the broker-dealer, investment adviser, or federalcovered investment adviser regularly provides brokerage or investment adviceor solicits, meets with, or otherwise communicates with customers or clients;or
(B) Any other location that is held out to the general public as alocation at which the broker-dealer, investment adviser, or federal coveredinvestment adviser provides brokerage or investment advice or solicits, meetswith, or otherwise communicates with customers or clients.
(22) "Predecessor act" means sections 409.101, 409.102 and 409.201 to409.421, as repealed by this act.
(23) "Price amendment" means the amendment to a registration statementfiled under the Securities Act of 1933 or, if an amendment is not filed, theprospectus or prospectus supplement filed under the Securities Act of 1933that includes a statement of the offering price, underwriting and sellingdiscounts or commissions, amount of proceeds, conversion rates, call prices,and other matters dependent upon the offering price.
(24) "Principal place of business" of a broker-dealer or an investmentadviser means the executive office of the broker-dealer or investment adviserfrom which the officers, partners, or managers of the broker-dealer orinvestment adviser direct, control, and coordinate the activities of thebroker-dealer or investment adviser.
(25) "Record", except in the phrases "of record", "official record", and"public record", means information that is inscribed on a tangible medium orthat is stored in an electronic or other medium and is retrievable inperceivable form.
(26) "Sale" includes every contract of sale, contract to sell, ordisposition of, a security or interest in a security for value, and "offer tosell" includes every attempt or offer to dispose of, or solicitation of anoffer to purchase, a security or interest in a security for value. Both termsinclude:
(A) A security given or delivered with, or as a bonus on account of, apurchase of securities or any other thing constituting part of the subject ofthe purchase and having been offered and sold for value;
(B) A gift of assessable stock involving an offer and sale; and
(C) A sale or offer of a warrant or right to purchase or subscribe toanother security of the same or another issuer and a sale or offer of asecurity that gives the holder a present or future right or privilege toconvert the security into another security of the same or another issuer,including an offer of the other security.
(27) "Securities and Exchange Commission" means the United StatesSecurities and Exchange Commission.
(28) "Security" means a note; stock; treasury stock; security future;bond; debenture; evidence of indebtedness; certificate of interest orparticipation in a profit-sharing agreement; collateral trust certificate;preorganization certificate or subscription; transferable share; investmentcontract; voting trust certificate; certificate of deposit for a security;fractional undivided interest in oil, gas, or other mineral rights; put, call,straddle, option, or privilege on a security, certificate of deposit, or groupor index of securities, including an interest therein or based on the valuethereof; put, call, straddle, option, or privilege entered into on a nationalsecurities exchange relating to foreign currency; or, in general, an interestor instrument commonly known as a "security"; or a certificate of interest orparticipation in, temporary or interim certificate for, receipt for, guaranteeof, or warrant or right to subscribe to or purchase, any of the foregoing.The term:
(A) Includes both a certificated and an uncertificated security;
(B) Does not include an insurance or endowment policy or annuitycontract under which an insurance company promises to pay money either in alump sum or periodically for life or other specified period;
(C) Does not include an interest in a contributory or noncontributorypension or welfare plan subject to the Employee Retirement Income Security Actof 1974;
(D) Includes as an "investment contract" an investment in a commonenterprise with the expectation of profits to be derived primarily from theefforts of a person other than the investor and a "common enterprise" means anenterprise in which the fortunes of the investor are interwoven with those ofeither the person offering the investment, a third party, or other investors;and
(E) May include as an "investment contract", among other contracts, aninterest in a limited partnership and a limited liability company and aninvestment in a viatical settlement or similar agreement.
(29) "Self-regulatory organization" means a national securities exchangeregistered under the Securities Exchange Act of 1934, a national securitiesassociation of broker-dealers registered under the Securities Exchange Act of1934, a clearing agency registered under the Securities Exchange Act of 1934,or the Municipal Securities Rulemaking Board established under the SecuritiesExchange Act of 1934.
(30) "Sign" means, with present intent to authenticate or adopt arecord:
(A) To execute or adopt a tangible symbol; or
(B) To attach or logically associate with the record an electronicsymbol, sound, or process.
(31) "State" means a state of the United States, the District ofColumbia, Puerto Rico, the United States Virgin Islands, or any territory orinsular possession subject to the jurisdiction of the United States.
