CHAPTER 278
(SB 38)
Uniform Securities Act adopted.
ENTITLED, An Act to
adopt the Uniform Securities Act, to repeal chapter 47-31A, and to revise
certain related provisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
Section 101.
This Act may be cited as the Uniform Securities Act of 2002.
Section
2.
Section 102.
In this Act, unless the context otherwise requires:
(1) "Director," the director of securities;
(2) "Agent," an individual, other than a broker-dealer, who represents a broker-dealer in
effecting or attempting to effect purchases or sales of securities or represents an issuer
in effecting or attempting to effect 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 similar
status or performing similar functions is an agent only if the individual otherwise comes
within the term. The term does not include an individual excluded by rule adopted or
order issued under this Act;
(3) "Bank,":
(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, doing business under
the laws of a state or of the United States, a substantial portion of the business
of which consists of receiving deposits or exercising fiduciary powers similar to
those permitted to be exercised by national banks under the authority of the
comptroller of the currency pursuant to Section 1 of Public Law 87-722 (12
U.S.C. Section 92a), and which is supervised and examined by a state or federal
agency having supervision over banks, and which is not operated for the purpose
of evading this Act; and
(D) A receiver, conservator, or other liquidating agent of any institution or firm
included in subparagraph (A), (B), or (C);
(4) "Broker-dealer," a person engaged in the business of effecting transactions in securities
for the account of others or for the person's own account. The term does not include:
(A) An agent;
(B) An issuer;
(C) A bank or savings institution if its activities as broker-dealer are limited to those
specified in subsection 3(a)(4) and 3(a)(5) of the Securities Exchange Act of
1934 (15 U.S.C. Section 78c(a)(4) and (5), or a bank that satisfies the conditions
specified in Section 3(a)(4)(E) of the Securities Exchange Act of 1934 (15 U.S.C.
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,":
(A) A bank; or
(B) A savings institution, trust company, credit union, or similar institution that is
organized or chartered under the laws of a state or of the United States,
authorized to receive deposits, and supervised and examined by an official or
agency of a state or the United States if its deposits or share accounts are insured
to the maximum amount authorized by statute by the Federal Deposit Insurance
Corporation, the National Credit Union Share Insurance Fund, or a successor
authorized by federal law. The term does not include:
(i) An insurance company or other organization primarily engaged in the
business of insurance;
(ii) A Morris Plan bank; or
(iii) An industrial loan company;
(6) "Federal covered investment adviser," a person registered under the Investment
Advisers Act of 1940;
(7) "Federal covered security," a security that is, or upon completion of a transaction will
be, a covered security under Section 18(b) of the Securities Act of 1933 (15 U.S.C.
Section 77r(b)) or rules or regulations adopted pursuant to that provision;
(8) "Filing," the receipt under this Act of a record by the director or a designee of the
director;
(9) "Fraud," "deceit," and "defraud," are not limited to common law deceit;
(10) "Guaranteed," guaranteed as to payment of all principal and all interest;
(11) "Institutional investor," any of the following, whether acting for itself or for others in
a fiduciary capacity:
(A) A depository institution or 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 of 1940;
(E) A broker-dealer registered under the Securities Exchange Act of 1934;
(F) An employee pension, profit-sharing, or benefit plan if the plan has total assets
in excess of ten million dollars or its investment decisions are made by a named
fiduciary, as defined in the Employee Retirement Income Security Act of 1974,
that is a broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the Investment
Advisers Act of 1940, an investment adviser registered under this Act, a
depository institution, or an insurance company;
(G) A plan established and maintained by a state, a political subdivision of a state,
or an agency or instrumentality of a state or a political subdivision of a state for
the benefit of its employees, if the plan has total assets in excess of ten million
dollars or its investment decisions are made by a duly designated public official
or by a named fiduciary, as defined in the Employee Retirement Income Security
Act of 1974, that is a broker-dealer registered under the Securities Exchange Act
of 1934, an investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered under this
Act, a depository 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 exclusively plans of the types
identified in subparagraph (F) or (G), regardless of the size of their assets, except
a trust that includes as participants self-directed individual retirement accounts
or similar self-directed plans;
(I) An organization described in Section 501(c)(3) of the Internal Revenue Code (26
U.S.C. Section 501(c)(3)), corporation, Massachusetts trust or similar business
trust, limited liability company, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total assets in excess of ten
million dollars;
(J) A small business investment company licensed by the Small Business
Administration under Section 301(c) of the Small Business Investment Act of
1958 (15 U.S.C. Section 681(c)) with total assets in excess of ten million dollars;
(K) A private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940 (15 U.S.C. Section 80b-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)(i)(H), adopted under the Securities Act of 1933 (17 C.F.R.
230.144A);
(N) A major United State institutional investor as defined in Rule 15a-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 institutional character with total
assets in excess of ten million dollars not organized for the specific purpose of
evading this Act; or
(P) Any other person specified by rule adopted or order issued under this Act;
(12) "Insurance company," a company organized as an insurance company whose primary
business is writing insurance or reinsuring risks underwritten by insurance companies
and which is subject to supervision by the insurance commissioner or a similar official
or agency of a state;
(13) "Insured," insured as to payment of all principal and all interest;
(14) "International banking institution," an international financial institution of which the
United States is a member and whose securities are exempt from registration under the
Securities Act of 1933;
(15) "Investment adviser," a person that, for compensation, engages in the business of
advising others, either directly or through publications or writings, 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 a regular business, issues or promulgates analyses or
reports concerning securities. The term includes a financial planner or other person that,
as an integral component of other financially related services, provides investment
advice to others for compensation as part of a business or that holds itself out as
providing investment advice to others for compensation. The term does not include:
(A) An investment adviser representative;
(B) A lawyer, accountant, engineer, or teacher whose performance of investment
advice is solely incidental to the practice of the person's profession;
(C) A broker-dealer or its agents whose performance of investment advice is solely
incidental to the conduct of business as a broker-dealer and that does not receive
special compensation for the investment advice;
(D) A publisher of a bona fide newspaper, news magazine, or business or financial
publication of general and regular circulation;
(E) A federal covered investment adviser;
(F) A bank or savings institution;
(G) Any other person that is excluded by the Investment Advisers Act of 1940 from
the definition of investment adviser; or
(H) Any other person excluded by rule adopted or order issued under this Act;
(16) "Investment adviser representative," an individual employed by or associated with an
investment adviser or federal covered investment adviser and who makes any
recommendations or otherwise gives investment advice regarding securities, manages
accounts or portfolios of clients, determines which recommendation or advice regarding
securities should be given, provides investment advice or holds herself or himself out
as providing investment advice, receives compensation to solicit, offer, or negotiate for
the sale of or for selling investment advice, or supervises employees who perform any
of the 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 solely incidental to the
individual acting as an agent and who does not receive special compensation for
investment advisory services;
(C) Is employed by or associated with a federal covered investment adviser, unless
the individual has a place of business in this state as that term is defined by rule
adopted under Section 203A of the Investment Advisers Act of 1940 (15 U.S.C.
Section 80b-3a) and is:
(i) An investment adviser representative as that term is defined by rule
adopted under Section 203A of the Investment Advisers Act of 1940 (15
U.S.C. Section 80b-3a); or
(ii) Not a supervised person as that term is defined in Section 202(a)(25) of
the Investment Advisers Act of 1940 (15 U.S.C. Section 80b-2(a)(25)); or
(D) Is excluded by rule adopted or order issued under this Act;
(17) "Issuer," a person that issues or proposes to issue a security, subject to the following:
(A) The issuer of a voting trust certificate, collateral trust certificate, certificate of
deposit for a security, or share in an investment company without a board of
directors or individuals performing similar functions is the person performing the
acts and assuming the duties of depositor or manager pursuant to the trust or
other agreement or instrument under which the security is issued;
(B) The issuer of an equipment trust certificate or similar security serving the same
purpose is the person by which the property is or will be used or to which the
property or equipment is or will be leased or conditionally sold or that is
otherwise contractually responsible for assuring payment of the certificate;
(C) The issuer of a fractional undivided interest in an oil, gas, or other mineral lease
or in payments out of production under a lease, right, or royalty is the owner of
an interest in the lease or in payments out of production under a lease, right, or
royalty, whether whole or fractional, that creates fractional interests for the
purpose of sale;
(18) "Nonissuer transaction" or "nonissuer distribution," a transaction or distribution not
directly or indirectly for the benefit of the issuer;
(19) "Offer to purchase," an attempt or offer to obtain, or solicitation of an offer to sell, a
security or interest in a security for value. The term does not include a tender offer that
is subject to Section 14(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78n(d));
(20) "Person," an individual; corporation; business trust; estate; trust; partnership; limited
liability company; association; joint venture; government; governmental subdivision,
agency, or instrumentality; public corporation; or any other legal or commercial entity;
(21) "Place of business," of a broker-dealer, an investment adviser, or a federal covered
investment adviser means:
(A) An office at which the broker-dealer, investment adviser, or federal covered
investment adviser regularly provides brokerage or investment advice or solicits,
meets with, or otherwise communicates with customers or clients; or
(B) Any other location that is held out to the general public as a location at which the
broker-dealer, investment adviser, or federal covered investment adviser provides
brokerage or investment advice or solicits, meets with, or otherwise
communicates with customers or clients;
(22) "Predecessor act," the act repealed by Section 702;
(23) "Price amendment," the amendment to a registration statement filed under the Securities
Act of 1933 or, if an amendment is not filed, the prospectus or prospectus supplement
filed under the Securities Act of 1933 that includes a statement of the offering price,
underwriting and selling discounts 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 investment adviser means the
executive office of the broker-dealer or investment adviser from which the officers,
partners, or managers of the broker-dealer or investment adviser direct, control, and
coordinate the activities of the broker-dealer or investment adviser;
(25) "Record," except in the phrases "of record," "official record," and "public record,"
information that is inscribed on a tangible medium or that is stored in an electronic or
other medium and is retrievable in perceivable form;
(26) "Sale," includes every contract of sale, contract to sell, or disposition of, a security or
interest in a security for value, and offer to sell includes every attempt or offer to
dispose of, or solicitation of an offer to purchase, a security or interest in a security for
value. Both terms include:
(A) A security given or delivered with, or as a bonus on account of, a purchase of
securities or any other thing constituting part of the subject of the 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 to another security
of the same or another issuer and a sale or offer of a security that gives the holder
a present or future right or privilege to convert the security into another security
of the same or another issuer, including an offer of the other security;
(27) "Securities and Exchange Commission," the United States Securities and Exchange
Commission;
(28) "Security," a note; stock; treasury stock; security future; bond; debenture; evidence of
indebtedness; certificate of interest or participation in a profit-sharing agreement;
collateral trust certificate; preorganization certificate or subscription; transferable share;
investment contract; 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 group or index of securities,
including an interest therein or based on the value thereof; put, call, straddle, option, or
privilege entered into on a national securities exchange relating to foreign currency; or,
in general, an interest or instrument commonly known as a security; or a certificate of
interest or participation in, temporary or interim certificate for, receipt for, guarantee of,
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 annuity contract under
which an insurance company promises to pay a fixed sum of money either in a
lump sum or periodically for life or other specified period;
(C) Does not include an interest in a contributory or noncontributory pension or
welfare plan subject to the Employee Retirement Income Security Act of 1974;
(D) Includes as an investment contract an investment in a common enterprise with
the expectation of profits to be derived primarily from the efforts of a person
other than the investor and a common enterprise means an enterprise in which the
fortunes of the investor are interwoven with those of either the person offering
the investment, a third party, or other investors; and
(E) Includes as an investment contract, among other contracts, an interest in a limited
partnership and a limited liability company and an investment in a viatical
settlement or similar agreement;
(29) "Self-regulatory organization," a national securities exchange registered under the
Securities Exchange Act of 1934, a national securities association of broker-dealers
registered under the Securities Exchange Act of 1934, a clearing agency registered
under the Securities Exchange Act of 1934, or the Municipal Securities Rule-making
Board established under the Securities Exchange Act of 1934;
(30) "Sign," with present intent to authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach or logically associate with the record an electronic symbol, sound, or
process;
(31) "State," a state of the United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands, or any territory or insular possession subject to the jurisdiction of
the United States.
Section
3.
Section 103.
Securities Act of 1933 (15 U.S.C. Section 77a et seq.), Securities
Exchange Act of 1934 (15 U.S.C. Section 78a et seq.), Public Utility Holding Company Act of
1935 (15 U.S.C. Section 79 et seq.), Investment Company Act of 1940 (15 U.S.C. Section 80a-1
et seq.), Investment Advisers Act of 1940 (15 U.S.C. Section 80b-1 et seq.), Employee Retirement
Income Security Act of 1974 (29 U.S.C. Section 1001 et seq.), National Housing Act (12 U.S.C.
Section 1701 et seq.), Commodity Exchange Act (7 U.S.C. Section 1 et seq.), Internal Revenue
Code (26 U.S.C. Section 1 et seq.), Securities Investor Protection Act of 1970 (15 U.S.C. Section
78aaa et seq.), Securities Litigation Uniform Standards Act of 1998 (112 Stat. 3227), Small
Business Investment Act of 1958 (15 U.S.C. Section 661 et seq.), and Electronic Signatures in
Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) mean those statutes and the
rules and regulations adopted under those statutes, as in effect on the date of enactment of this Act,
or as later amended.
Section
4.
Section 104.
A reference in this Act to an agency or department of the United States
is also a reference to a successor agency or department.
Section
5.
Section 105.
This Act modifies, limits, and supersedes the federal Electronic
Signatures in Global and National Commerce Act, but does not modify, limit, or supersede Section
101(c) of that act (15 U.S.C. Section 7001(c)) or authorize electronic delivery of any of the notices
described in Section 103(b) of that act (15 U.S.C. Section 7003(b)). This Act authorizes the filing
of records and signatures, when specified by provisions of this Act or by a rule adopted or order
issued under this Act, in a manner consistent with Section 104(a) of that act (15 U.S.C. Section
7004(a)).
Section
6.
Section 201.
The following securities are exempt from the requirements of Sections
301 through 306 and 504:
(1) A security, including a revenue obligation or a separate security as defined in Rule 131
(17 C.F.R. 230.131) adopted under the Securities Act of 1933, issued, insured, or
guaranteed by the United States; by a state; by a political subdivision of a state; by a
public authority, agency, or instrumentality of one or more states; by a political
subdivision of one or more states; or by a person controlled or supervised by and acting
as an instrumentality of the United States under authority granted by the Congress; or
a certificate of deposit for any of the foregoing;
(2) A security issued, insured, or guaranteed by a foreign government with which the
United States maintains diplomatic relations, or any of its political subdivisions, if the
security is recognized as a valid obligation by the issuer, insurer, or guarantor;
(3) A security issued by and representing or that will represent an interest in or a direct
obligation of, or be guaranteed by:
(A) An international banking institution;
(B) A banking institution organized under the laws of the United States; a member
bank of the Federal Reserve System; or a depository institution a substantial
portion of the business of which consists or will consist of receiving deposits or
share accounts that are insured to the maximum amount authorized by statute by
the Federal Deposit Insurance Corporation, the National Credit Union Share
Insurance Fund, or a successor authorized by federal law or exercising fiduciary
powers that are similar to those permitted for national banks under the authority
of the Comptroller of Currency pursuant to Section 1 of Public Law 87-722 (12
U.S.C. Section 92a); or
(C) Any other depository institution, unless by rule or order the director proceeds
under Section 204;
(4) A security issued by and representing an interest in, or a debt of, or insured or
guaranteed by, an insurance company authorized to do business in this state;
(5) A security issued or guaranteed by a railroad, other common carrier, public utility, or
public utility holding company that is:
(A) Regulated in respect to its rates and charges by the United States or a state;
(B) Regulated in respect to the issuance or guarantee of the security by the United
States, a state, Canada, or a Canadian province or territory; or
(C) A public utility holding company registered under the Public Utility Holding
Company Act of 1935 or a subsidiary of such a registered holding company
within the meaning of that act;
(6) A federal covered security specified in Section 18(b)(1) of the Securities Act of 1933
(15 U.S.C. Section 77r(b)(1)) or by rule adopted under that provision or a security listed
or approved for listing on another securities market specified by rule under this Act; a
put or a call option contract; a warrant; a subscription right on or with respect to such
securities; or an option or similar derivative security on a security or an index of
securities or foreign currencies issued by a clearing agency registered under the
Securities Exchange Act of 1934 and listed or designated for trading on a national
securities exchange, a facility of a national securities exchange, or a facility of a national
securities association registered under the Securities Exchange Act of 1934 or an offer
or sale, of the underlying security in connection with the offer, sale, or exercise of an
option or other security that was exempt when the option or other security was written
or issued; or an option or a derivative security designated by the Securities and
Exchange Commission under Section 9(b) of the Securities Exchange Act of 1934 (15
U.S.C. Section 78i(b));
(7) A security issued by a person organized and operated exclusively for religious,
educational, benevolent, fraternal, charitable, social, athletic, or reformatory purposes,
or as a chamber of commerce, and not for pecuniary profit, no part of the net earnings
of which inures to the benefit of a private stockholder or other person, or a security of
a company that is excluded from the definition of an investment company under Section
3(c)(10)(B) of the Investment Company Act of 1940 (15 U.S.C. Section 80a-
3(c)(10)(B)); except that with respect to the offer or sale of a note, bond, debenture, or
other evidence of indebtedness issued by such a person, a rule may be adopted under
this Act limiting the availability of this exemption by classifying securities, persons, and
transactions, imposing different requirements for different classes, specifying with
respect to paragraph (B) the scope of the exemption and the grounds for denial or
suspension, and requiring an issuer:
(A) To file a notice specifying the material terms of the proposed offer or sale and
copies of any proposed sales and advertising literature to be used and provide that
the exemption becomes effective if the director does not disallow the exemption
within the period established by the rule;
(B) To file a request for exemption authorization for which a rule under this Act may
specify the scope of the exemption, the requirement of an offering statement, the
filing of sales and advertising literature, the filing of consent to service of process
complying with Section 611, and grounds for denial or suspension of the
exemption; or
(C) To register under Section 304;
(8) Any securities of any cooperative corporation organized in good faith and qualified to
do business as a cooperative under chapter 47-15 or chapter 47-21 and sold only to
members of such cooperative corporations for the purpose of conducting under the
cooperative plan among its stockholders any or all of the following businesses:
(A) Any agricultural, dairy, livestock, or produce business;
(B) The business of selling, marketing, or otherwise handling any agricultural, dairy,
or livestock products, or other produce raised or produced by the stockholders of
such corporation or by any cooperative corporation;
(C) The manufacture of any products from handling any agricultural, dairy, or
livestock products, or other produce by the members of such corporations;
(D) The funding of economic development projects in South Dakota;
(E) The operation of a rural telephone among its stockholders;
(F) Any business incidental to any of the above purposes; and
(G) A member's or owner's interest in, or a retention certificate or like security given
in lieu of a cash patronage dividend issued by, a cooperative organized and
operated as a nonprofit membership cooperative under the cooperative laws of
a state, but not a member's or owner's interest, retention certificate, or like
security sold to persons other than bona fide members of the cooperative; and
(9) An equipment trust certificate with respect to equipment leased or conditionally sold to
a person, if any security issued by the person would be exempt under this section or
would be a federal covered security under Section 18(b)(1) of the Securities Act of 1933
(15 U.S.C. Section 77r(b)(1)).
Section
7.
Section 202.
The following transactions are exempt from the requirements of
Sections 301 through 306 and 504:
(1) An isolated nonissuer transaction, whether effected by or through a broker-dealer or not;
(2) A nonissuer transaction by or through a broker-dealer registered, or exempt from
registration under this Act, and a resale transaction by a sponsor of a unit investment
trust registered under the Investment Company Act of 1940, in a security of a class that
has been outstanding in the hands of the public for at least ninety days, if, at the date of
the transaction:
(A) The issuer of the security is engaged in business, the issuer is not in the
organizational stage or in bankruptcy or receivership, and the issuer is not a blank
check, blind pool, or shell company that has no specific business plan or purpose
or has indicated that its primary business plan is to engage in a merger or
combination of the business with, or an acquisition of, an unidentified person;
(B) The security is sold at a price reasonably related to its current market price;
(C) The security does not constitute the whole or part of an unsold allotment to, or
a subscription or participation by, the broker-dealer as an underwriter of the
security or a redistribution;
(D) A nationally recognized securities manual or its electronic equivalent designated
by rule adopted or order issued under this Act or a record filed with the Securities
and Exchange Commission that is publicly available contains:
(i) A description of the business and operations of the issuer;
(ii) The names of the issuer's executive officers and the names of the issuer's
directors, if any;
(iii) An audited balance sheet of the issuer as of a date within eighteen months
before the date of the transaction or, in the case of a reorganization or
merger when the parties to the reorganization or merger each had an
audited balance sheet, a pro forma balance sheet for the combined
organization; and
(iv) An audited income statement for each of the issuer's two immediately
previous fiscal years or for the period of existence of the issuer, whichever
is shorter, or, in the case of a reorganization or merger when each party to
the reorganization or merger had audited income statements, a pro forma
income statement; and
(E) Any one of the following requirements is met:
(i) The issuer of the security has a class of equity securities listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934 or designated for trading on the National
Association of Securities Dealers Automated Quotation System;
(ii) The issuer of the security is a unit investment trust registered under the
Investment Company Act of 1940;
(iii) The issuer of the security, including its predecessors, has been engaged in
continuous business for at least three years; or
(iv) The issuer of the security has total assets of at least two million dollars
based on an audited balance sheet as of a date within eighteen months
before the date of the transaction or, in the case of a reorganization or
merger when the parties to the reorganization or merger each had such an
audited balance sheet, a pro forma balance sheet for the combined
organization;
(3) A nonissuer transaction by or through a broker-dealer registered or exempt from
registration under this Act in a security of a foreign issuer that is a margin security
defined in regulations or rules adopted by the Board of Governors of the Federal
Reserve System;
(4) A nonissuer transaction by or through a broker-dealer registered or exempt from
registration under this Act in an outstanding security if the guarantor of the security files
reports with the Securities and Exchange Commission under the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or
78o(d));
(5) A nonissuer transaction by or through a broker-dealer registered or exempt from
registration under this Act in a security that:
(A) Is rated at the time of the transaction by a nationally recognized statistical rating
organization in one of its four highest rating categories; or
(B) Has a fixed maturity or a fixed interest or dividend, if:
(i) A default has not occurred during the current fiscal year or within the three
previous fiscal years or during the existence of the issuer and any
predecessor if less than three fiscal years, in the payment of principal,
interest, or dividends on the security; and
(ii) The issuer is engaged in business, is not in the organizational stage or in
bankruptcy or receivership, and is not and has not been within the
previous twelve months a blank check, blind pool, or shell company that
has no specific business plan or purpose or has indicated that its primary
business plan is to engage in a merger or combination of the business
with, or an acquisition of, an unidentified person;
(6) A nonissuer transaction by or through a broker-dealer registered or exempt from
registration under this Act effecting an unsolicited order or offer to purchase;
(7) A nonissuer transaction executed by a bona fide pledgee without the purpose of evading
this Act;
(8) A nonissuer transaction by a federal covered investment adviser with investments under
management in excess of one hundred million dollars acting in the exercise of
discretionary authority in a signed record for the account of others;
(9) A transaction in a security, whether or not the security or transaction is otherwise
exempt, in exchange for one or more bona fide outstanding securities, claims, or
property interests, or partly in such exchange and partly for cash, if the terms and
conditions of the issuance and exchange or the delivery and exchange and the fairness
of the terms and conditions have been approved by the director after a hearing;
(10) A transaction between the issuer or other person on whose behalf the offering is made
and an underwriter, or among underwriters;
(11) A transaction in a note, bond, debenture, or other evidence of indebtedness secured by
a mortgage or other security agreement if:
(A) The note, bond, debenture, or other evidence of indebtedness is offered and sold
with the mortgage or other security agreement as a unit;
(B) A general solicitation or general advertisement of the transaction is not made;
and
(C) A commission or other remuneration is not paid or given, directly or indirectly,
to a person not registered under this Act as a broker-dealer or as an agent;
(12) A transaction by an executor, administrator of an estate, sheriff, marshal, receiver,
trustee in bankruptcy, guardian, or conservator;
(13) A sale or offer to sell to:
(A) An institutional investor;
(B) A federal covered investment adviser; or
(C) Any other person exempted by rule adopted or order issued under this Act;
(14) A sale or an offer to sell securities of an issuer, if the transaction is part of a single issue
in which:
(A) Not more than twenty-five purchasers are present in this state during any twelve
consecutive months, other than those designated in paragraph (13);
(B) A general solicitation or general advertising is not made in connection with the
offer to sell or sale of the securities;
(C) A commission or other remuneration is not paid or given, directly or indirectly,
to a person other than a broker-dealer registered under this Act or an agent
registered under this Act for soliciting a prospective purchaser in this state; and
(D) The issuer reasonably believes that all the purchasers in this state, other than
those designated in paragraph (13), are purchasing for investment;
(15) A transaction under an offer to existing security holders of the issuer, including persons
that at the date of the transaction are holders of convertible securities, options, or
warrants, if a commission or other remuneration, other than a standby commission, is
not paid or given, directly or indirectly, for soliciting a security holder in this state;
(16) An offer to sell, but not a sale, of a security not exempt from registration under the
Securities Act of 1933 if:
(A) A registration or offering statement or similar record as required under the
Securities Act of 1933 has been filed, but is not effective, or the offer is made in
compliance with Rule 165 adopted under the Securities Act of 1933 (17 C.F.R.
230.165); and
(B) A stop order of which the offeror is aware has not been issued against the offeror
by the director or the Securities and Exchange Commission, and an audit,
inspection, or proceeding that is public and that may culminate in a stop order is
not known by the offeror to be pending;
(17) An offer to sell, but not a sale, of a security exempt from registration under the
Securities Act of 1933 if:
(A) A registration statement has been filed under this Act, but is not effective;
(B) A solicitation of interest is provided in a record to offerees in compliance with
a rule adopted by the director under this Act; and
(C) A stop order of which the offeror is aware has not been issued by the director
under this Act and an audit, inspection, or proceeding that may culminate in a
stop order is not known by the offeror to be pending;
(18) A transaction involving the distribution of the securities of an issuer to the security
holders of another person in connection with a merger, consolidation, exchange of
securities, sale of assets, or other reorganization to which the issuer, or its parent or
subsidiary and the other person, or its parent or subsidiary, are parties;
(19) A rescission offer, sale, or purchase under Section 510;
(20) An offer or sale of a security to a person not a resident of this state and not present in
this state if the offer or sale does not constitute a violation of the laws of the state or
foreign jurisdiction in which the offeree or purchaser is present and is not part of an
unlawful plan or scheme to evade this Act;
(21) Employees' stock purchase, savings, option, profit-sharing, pension, or similar
employees' benefit plan, including any securities, plan interests, and guarantees issued
under a compensatory benefit plan or compensation contract, contained in a record,
established by the issuer, its parents, its majority-owned subsidiaries, or the majority-
owned subsidiaries of the issuer's parent for the participation of their employees
including offers or sales of such securities to:
(A) Directors; general partners; trustees, if the issuer is a business trust; officers;
consultants; and advisors;
(B) Family members who acquire such securities from those persons through gifts
or domestic relations orders;
(C) Former employees, directors, general partners, trustees, officers, consultants, and
advisors if those individuals were employed by or providing services to the issuer
when the securities were offered; and
(D) Insurance agents who are exclusive insurance agents of the issuer, or the issuer's
subsidiaries or parents, or who derive more than fifty percent of their annual
income from those organizations;
(22) A transaction involving:
(A) A stock dividend or equivalent equity distribution, whether the corporation or
other business organization distributing the dividend or equivalent equity
distribution is the issuer or not, if nothing of value is given by stockholders or
other equity holders for the dividend or equivalent equity distribution other than
the surrender of a right to a cash or property dividend if each stockholder or other
equity holder may elect to take the dividend or equivalent equity distribution in
cash, property, or stock;
(B) An act incident to a judicially approved reorganization in which a security issued
in exchange for one or more outstanding securities, claims, or property interests,
or partly in such exchange and partly for cash; or
(C) The solicitation of tenders of securities by an offeror in a tender offer in
compliance with Rule 162 adopted under the Securities Act of 1933 (17 C.F.R.
230.162); or
(23) A nonissuer transaction in an outstanding security by or through a broker-dealer
registered or exempt from registration under this Act, if the issuer is a reporting issuer
in a foreign jurisdiction designated by this paragraph or by rule adopted or order issued
under this Act; has been subject to continuous reporting requirements in the foreign
jurisdiction for not less than one hundred eighty days before the transaction; and the
security is listed on the foreign jurisdiction's securities exchange that has been
designated by this paragraph or by rule adopted or order issued under this Act, or is a
security of the same issuer that is of senior or substantially equal rank to the listed
security or is a warrant or right to purchase or subscribe to any of the foregoing. For
purposes of this paragraph, Canada, together with its provinces and territories, is a
designated foreign jurisdiction and The Toronto Stock Exchange, Inc., is a designated
securities exchange. After an administrative hearing in compliance with chapter 1-26,
the director, by rule adopted or order issued under this Act, may revoke the designation
of a securities exchange under this paragraph, if the director finds that revocation is
necessary or appropriate in the public interest and for the protection of investors.
Section
8.
Section 203.
A rule adopted or order issued under this Act may exempt a security,
transaction, or offer; a rule under this Act may exempt a class of securities, transactions, or offers
from any or all of the requirements of Sections 301 through 306 and 504; and an order under this
Act may waive, in whole or in part, any or all of the conditions for an exemption or offer under
Sections 201 and 202. A filing required by rules adopted pursuant to this section shall include a
fee of two hundred dollars, unless a fee is otherwise identified in this Act.
Section
9.
Section 204.
(a) Enforcement related powers. Except with respect to a federal
covered security or a transaction involving a federal covered security, an order under this Act may
deny, suspend application of, condition, limit, or revoke an exemption created under Section
201(3)(C), (7) or (8) or 202 or an exemption or waiver created under Section 203 with respect to
a specific security, transaction, or offer. An order under this section may be issued only pursuant
to the procedures in Section 306(d) or 604 and only prospectively.
(b) Knowledge of order required. A person does not violate Section 301, 303 through 306, 504,
or 510 by an offer to sell, offer to purchase, sale, or purchase effected after the entry of an order
issued under this section if the person did not know, and in the exercise of reasonable care could
not have known, of the order.
Section
10.
Section 301.
It is unlawful for a person to offer or sell a security in this state unless:
(1) The security is a federal covered security;
(2) The security, transaction, or offer is exempted from registration under Sections 201
through 203; or
(3) The security is registered under this Act.
Section
11.
Section 302.
(a) Required filing of records. With respect to a federal covered
security, as defined in Section 18(b)(2) of the Securities Act of 1933 (15 U.S.C. Section 77r(b)(2)),
that is not otherwise exempt under Sections 201 through 203, a rule adopted or order issued under
this Act may require the filing of any or all of the following records:
(1) Before the initial offer of a federal covered security in this state, all records that are part
of a federal registration statement filed with the Securities and Exchange Commission
under the Securities Act of 1933 and a consent to service of process complying with
Section 611 signed by the issuer and the payment of a fee of five hundred dollars for
open-end management companies with total net assets of fifty million dollars or less,
or a filing fee of one thousand dollars for open-end management companies with total
net assets of more than fifty million dollars but less than two hundred fifty million
dollars, or a filing fee of two thousand dollars for open-end management companies
with total net assets equal to or greater than two hundred fifty million dollars; two
hundred and fifty dollars for closed end management companies; or a filing fee of one
hundred fifty dollars for unit investment trusts. A renewal filing is required annually,
including those documents that the director by rule or order may require and a fee as
provided in this subparagraph a(1). An initial or renewal filing includes a separate fee
for each portfolio, series, class, or other designation. An initial or renewal filing shall
include the most recent financial statement showing the nets assets of each portfolio,
series, class, or other designation, unless the maximum fee of two thousand dollars is
paid.
(2) After the initial offer of the federal covered security in this state, all records that are part
of an amendment to a federal registration statement filed with the Securities and
Exchange Commission under the Securities Act of 1933. Any amendment that includes
a name change to any filing, including any portfolio, series, class, or other designation,
must include a fifty dollar filing fee for each name change of each portfolio, series,
class, or other designation.
(b) Notice filing effectiveness and renewal. A notice filing under subsection (a) is effective for
one year commencing on the later of the notice filing or the effectiveness of the offering filed with
the Securities and Exchange Commission. On or before expiration, the issuer may renew a notice
filing by filing a copy of those records filed by the issuer with the Securities and Exchange
Commission that are required by rule or order under this Act to be filed and by paying a renewal
fee as set forth in subsection a(1). A previously filed consent to service of process complying with
Section 611 may be incorporated by reference in a renewal. A renewed notice filing becomes
effective upon the expiration of the filing being renewed.
(c) Notice filings for federal covered securities under Section 18(b)(4)(D). With respect to a
security that is a federal covered security under Section 18(b)(4)(D) of the Securities Act of
1933(15 U.S.C. Section 77r(b)(4)(D)), a rule under this Act may require a notice filing by or on
behalf of an issuer to include a copy of Form D, including the Appendix, as promulgated by the
Securities and Exchange Commission, and a consent to service of process complying with Section
611 signed by the issuer not later than fifteen days after the first sale of the federal covered security
in this state and the payment of a fee of two hundred fifty dollars; and the payment of a fee of two
hundred seventy five dollars for any late filing.
(d) Stop orders. Except with respect to a federal security under Section 18(b)(1) of the
Securities Act of 1933 (15 U.S.C. Section 77r(b)(1)), if the director finds that there is a failure to
comply with a notice or fee requirement of this section, the director may issue a stop order
suspending the offer and sale of a federal covered security in this state. If the deficiency is
corrected, the stop order is void as of the time of its issuance and no penalty may be imposed by
the director.
Section
12.
Section 303.
(a) Registration permitted. A security for which a registration
statement has been filed under the Securities Act of 1933 in connection with the same offering may
be registered by coordination under this section.
(b) Required records. A registration statement and accompanying records under this section
must contain or be accompanied by the following records in addition to the information specified
in Section 305 and a consent to service of process complying with Section 611:
(1) A copy of the latest form of prospectus filed under the Securities Act of 1933;
(2) A copy of the articles of incorporation and bylaws or their substantial equivalents
currently in effect; a copy of any agreement with or among underwriters; a copy of any
indenture or other instrument governing the issuance of the security to be registered; and
a specimen, copy, or description of the security that is required by rule adopted or order
issued under this Act;
(3) Copies of any other information or any other records filed by the issuer under the
Securities Act of 1933 requested by the director; and
(4) An undertaking to forward each amendment to the federal prospectus, other than an
amendment that delays the effective date of the registration statement, promptly after
it is filed with the Securities and Exchange Commission.
(c) Conditions for effectiveness of registration statement. A registration statement under this
section becomes effective simultaneously with or subsequent to the federal registration statement
when all the following conditions are satisfied:
(1) A stop order under subsection (d) or Section 306 or issued by the Securities and
Exchange Commission is not in effect and a proceeding is not pending against the issuer
under Section 306; and
(2) The registration statement has been on file for at least twenty days or a shorter period
provided by rule adopted or order issued under this Act.
(d) Notice of federal registration statement effectiveness. The registrant shall promptly notify
the director in a record of the date when the federal registration statement becomes effective and
the content of any price amendment and shall promptly file a record containing the price
amendment. If the notice is not timely received, the director may issue a stop order, without prior
notice or hearing, retroactively denying effectiveness to the registration statement or suspending
its effectiveness until compliance with this section. The director shall promptly notify the registrant
of an order by telegram, telephone, or electronic means and promptly confirm this notice by a
record. If the registrant subsequently complies with the notice requirements of this section, the stop
order is void as of the date of its issuance.
(e) Effectiveness of registration statement. If the federal registration statement becomes
effective before each of the conditions in this section is satisfied or is waived by the director, the
registration statement is automatically effective under this Act when all the conditions are satisfied
or waived. If the registrant notifies the director of the date when the federal registration statement
is expected to become effective, the director shall promptly notify the registrant by telegram,
telephone, or electronic means and promptly confirm this notice by a record, indicating whether
all the conditions are satisfied or waived and whether the director intends the institution of a
proceeding under Section 306. The notice by the director does not preclude the institution of such
a proceeding.
Section
13.
Section 304.
(a) Registration permitted. A security may be registered by
qualification under this section.
(b) Required records. A registration statement under this section must contain the information
or records specified in Section 305, a consent to service of process complying with Section 611,
and, if required by rule adopted under this Act, the following information or records:
(1) With respect to the issuer and any significant subsidiary, its name, address, and form of
organization; the state or foreign jurisdiction and date of its organization; the general
character and location of its business; a description of its physical properties and
equipment; and a statement of the general competitive conditions in the industry or
business in which it is or will be engaged;
(2) With respect to each director and officer of the issuer, and other person having a similar
status or performing similar functions, the person's name, address, and principal
occupation for the previous five years; the amount of securities of the issuer held by the
person as of the thirtieth day before the filing of the registration statement; the amount
of the securities covered by the registration statement to which the person has indicated
an intention to subscribe; and a description of any material interest of the person in any
material transaction with the issuer or a significant subsidiary effected within the
previous three years or proposed to be effected;
(3) With respect to persons covered by paragraph (2), the aggregate sum of the
remuneration paid to those persons during the previous twelve months and estimated
to be paid during the next twelve months, directly or indirectly, by the issuer, and all
predecessors, parents, subsidiaries, and affiliates of the issuer;
(4) With respect to a person owning of record or owning beneficially, if known, ten percent
or more of the outstanding shares of any class of equity security of the issuer, the
information specified in paragraph (2) other than the person's occupation;
(5) With respect to a promoter, if the issuer was organized within the previous three years,
the information or records specified in paragraph (2), any amount paid to the promoter
within that period or intended to be paid to the promoter, and the consideration for the
payment;
(6) With respect to a person on whose behalf any part of the offering is to be made in a
nonissuer distribution, the person's name and address; the amount of securities of the
issuer held by the person as of the date of the filing of the registration statement; a
description of any material interest of the person in any material transaction with the
issuer or any significant subsidiary effected within the previous three years or proposed
to be effected; and a statement of the reasons for making the offering;
(7) The capitalization and long term debt, on both a current and pro forma basis, of the
issuer and any significant subsidiary, including a description of each security
outstanding or being registered or otherwise offered, and a statement of the amount and
kind of consideration, whether in the form of cash, physical assets, services, patents,
goodwill, or anything else of value, for which the issuer or any subsidiary has issued its
securities within the previous two years or is obligated to issue its securities;
(8) The kind and amount of securities to be offered; the proposed offering price or the
method by which it is to be computed; any variation at which a proportion of the
offering is to be made to a person or class of persons other than the underwriters, with
a specification of the person or class; the basis on which the offering is to be made if
otherwise than for cash; the estimated aggregate underwriting and selling discounts or
commissions and finders' fees, including separately cash, securities, contracts, or
anything else of value to accrue to the underwriters or finders in connection with the
offering or, if the selling discounts or commissions are variable, the basis of
determining them and their maximum and minimum amounts; the estimated amounts
of other selling expenses, including legal, engineering, and accounting charges; the
name and address of each underwriter and each recipient of a finder's fee; a copy of any
underwriting or selling group agreement under which the distribution is to be made or
the proposed form of any such agreement whose terms have not yet been determined;
and a description of the plan of distribution of any securities that are to be offered
otherwise than through an underwriter;
(9) The estimated monetary proceeds to be received by the issuer from the offering; the
purposes for which the proceeds are to be used by the issuer; the estimated amount to
be used for each purpose; the order or priority in which the proceeds will be used for the
purposes stated; the amounts of any funds to be raised from other sources to achieve the
purposes stated; the sources of the funds; and, if a part of the proceeds is to be used to
acquire property, including goodwill, otherwise than in the ordinary course of business,
the names and addresses of the vendors, the purchase price, the names of any persons
that have received commissions in connection with the acquisition, and the amounts of
the commissions and other expenses in connection with the acquisition, including the
cost of borrowing money to finance the acquisition;
(10) A description of any stock options or other security options outstanding, or to be created
in connection with the offering, and the amount of those options held or to be held by
each person required to be named in paragraph (2), (4), (5), (6), or (8) and by any person
that holds or will hold ten percent or more in the aggregate of those options;
(11) The dates of, parties to, and general effect concisely stated of each managerial or other
material contract made or to be made otherwise than in the ordinary course of business
to be performed in whole or in part at or after the filing of the registration statement or
that was made within the previous two years, and a copy of the contract;
(12) A description of any pending litigation, action, or proceeding to which the issuer is a
party and that materially affects its business or assets, and any litigation, action, or
proceeding known to be contemplated by governmental authorities;
(13) A copy of any prospectus, pamphlet, circular, form letter, advertisement, or other sales
literature intended as of the effective date to be used in connection with the offering and
any solicitation of interest used in compliance with Section 202(17)(B);
(14) A specimen or copy of the security being registered, unless the security is uncertificated;
a copy of the issuer's articles of incorporation and bylaws or their substantial
equivalents, in effect; and a copy of any indenture or other instrument covering the
security to be registered;
(15) A signed or conformed copy of an opinion of counsel concerning the legality of the
security being registered, with an English translation if it is in a language other than
English, which states whether the security when sold will be validly issued, fully paid,
and nonassessable and, if a debt security, a binding obligation of the issuer;
(16) A signed or conformed copy of a consent of any accountant, engineer, appraiser, or
other person whose profession gives authority for a statement made by the person, if the
person is named as having prepared or certified a report or valuation, other than an
official record, that is public, which is used in connection with the registration
statement;
(17) A balance sheet of the issuer as of a date within four months before the filing of the
registration statement; a statement of income and a statement of cash flows for each of
the three fiscal years preceding the date of the balance sheet and for any period between
the close of the immediately previous fiscal year and the date of the balance sheet, or
for the period of the issuer's and any predecessor's existence if less than three years; and,
if any part of the proceeds of the offering is to be applied to the purchase of a business,
the financial statements that would be required if that business were the registrant; and
(18) Any additional information or records required by rule adopted or order issued under
this Act.
(c) Conditions for effectiveness of registration statement. A registration statement under this
section becomes effective thirty days, or any shorter period provided by rule adopted or order
issued under this Act, after the date the registration statement or the last amendment other than a
price amendment is filed, if:
(1) A stop order is not in effect and a proceeding is not pending under Section 306;
(2) The director has not issued an order under Section 306 delaying effectiveness; and
(3) The applicant or registrant has not requested that effectiveness be delayed.
(d) Delay of effectiveness of registration statement. The director may delay effectiveness once
for not more than ninety days if the director determines the registration statement is not complete
in all material respects and promptly notifies the applicant or registrant of that determination. The
director may also delay effectiveness for a further period of not more than thirty days if the director
determines that the delay is necessary or appropriate.
(e) Prospectus distribution may be required. A rule adopted or order issued under this Act may
require as a condition of registration under this section that a prospectus containing a specified part
of the information or record specified in subsection (b) be sent or given to each person to which
an offer is made, before or concurrently, with the earliest of:
(1) The first offer made in a record to the person otherwise than by means of a public
advertisement, by or for the account of the issuer or another person on whose behalf the
offering is being made or by an underwriter or broker-dealer that is offering part of an
unsold allotment or subscription taken by the person as a participant in the distribution;
(2) The confirmation of a sale made by or for the account of the person;
(3) Payment pursuant to such a sale; or
(4) Delivery of the security pursuant to such a sale.
Section
14.
Section 305.
(a) Who may file. A registration statement may be filed by the issuer,
a person on whose behalf the offering is to be made, or a broker-dealer registered under this Act.
(b) Filing fee. A person filing a registration statement shall pay a filing fee as follows: On the
first five hundred thousand dollars of the total proposed sale price of the securities covered by such
registration, the sum of one dollar per thousand dollars. All registrations over five hundred
thousand dollars, the sum of five hundred dollars, plus seventy-five cents per thousand dollars of
excess over five hundred thousand dollars. The minimum fee is one hundred dollars. The
maximum fee is two thousand dollars. If a registration statement is withdrawn before the effective
date or a pre-effective stop order is issued under Section 306, the director shall retain the minimum
fee of one hundred dollars.
(c) Status of offering. A registration statement filed under Section 303 or 304 must specify:
(1) The amount of securities to be offered in this state;
(2) The states in which a registration statement or similar record in connection with the
offering has been or is to be filed; and
(3) Any adverse order, judgment, or decree issued in connection with the offering by a state
securities regulator, the Securities and Exchange Commission, or a court.
(d) Incorporation by reference. A record filed under this Act or the predecessor act within five
years preceding the filing of a registration statement may be incorporated by reference in the
registration statement to the extent that the record is currently accurate.
(e) Nonissuer distribution. In the case of a nonissuer distribution, information or a record may
not be required under subsection (h) or Section 304, unless it is known to the person filing the
registration statement or to the person on whose behalf the distribution is to be made or unless it
can be furnished by those persons without unreasonable effort or expense.
(f) Form of subscription. A rule adopted or order issued under this Act may require as a
condition of registration that a security registered under this Act be sold only on a specified form
of subscription or sale contract and that a signed or conformed copy of each contract be filed under
this Act or preserved for a period specified by the rule or order, which may not be longer than five
years.
(g) Effective period. Except while a stop order is in effect under Section 306, a registration
statement is effective for one year after its effective date, or for any longer period designated in an
order under this Act during which the security is being offered or distributed in a nonexempted
transaction by or for the account of the issuer or other person on whose behalf the offering is being
made or by an underwriter or broker-dealer that is still offering part of an unsold allotment or
subscription taken as a participant in the distribution. For the purposes of a nonissuer transaction,
all outstanding securities of the same class identified in the registration statement as a security
registered under this Act are considered to be registered while the registration statement is
effective. If any securities of the same class are outstanding, a registration statement may not be
withdrawn until one year after its effective date. A registration statement may be withdrawn only
with the approval of the director. A fee of one hundred dollars is required for any extension of
registration.
(h) Periodic reports. While a registration statement is effective, a rule adopted or order issued
under this Act may require the person that filed the registration statement to file reports, not more
often than quarterly, to keep the information or other record in the registration statement
reasonably current and to disclose the progress of the offering. The only fee required for filing a
report under this subsection (h) is for the annual report. The annual report fee is twenty-five
dollars.
(i) Post-effective amendments. A registration statement may be amended after its effective
date. The post-effective amendment becomes effective when the director so orders. If a post-
effective amendment is made to increase the number of securities specified to be offered or sold,
the person filing the amendment shall pay a late registration fee of twenty five dollars and a filing
fee, calculated in the manner specified in subsection (b). A post-effective amendment relates back
to the date of the offering of the additional securities being registered if, within one year after the
date of the sale, the amendment is filed and the additional registration fee is paid.
Section
15.
Section 306.
(a) Stop orders. The director may issue a stop order denying
effectiveness to, or suspending or revoking the effectiveness of, a registration statement if the
director finds that the order is in the public interest and that:
(1) The registration statement as of its effective date or before the effective date in the case
of an order denying effectiveness, an amendment under Section 305(i) as of its effective
date, or a report under Section 305(h), is incomplete in a material respect or contains
a statement that, in the light of the circumstances under which it was made, was false
or misleading with respect to a material fact;
(2) This Act or a rule adopted or order issued under this Act or a condition imposed under
this Act has been willfully violated, in connection with the offering, by the person filing
the registration statement; by the issuer, a partner, officer, or director of the issuer or a
person having a similar status or performing a similar function; a promoter of the issuer;
or a person directly or indirectly controlling or controlled by the issuer; but only if the
person filing the registration statement is directly or indirectly controlled by or acting
for the issuer; or by an underwriter;
(3) The security registered or sought to be registered is the subject of a permanent or
temporary injunction of a court of competent jurisdiction or an administrative stop order
or similar order issued under any federal, foreign, or state law other than this Act
applicable to the offering, but the director may not institute a proceeding against an
effective registration statement under this paragraph more than one year after the date
of the order or injunction on which it is based, and the director may not issue an order
under this paragraph on the basis of an order or injunction issued under the securities
act of another state unless the order or injunction was based on conduct that would
constitute, as of the date of the order, a ground for a stop order under this section;
(4) The issuer's enterprise or method of business includes or would include activities that
are unlawful where performed;
(5) With respect to a security sought to be registered under Section 303, there has been a
failure to comply with the undertaking required by Section 303(b)(4); or
(6) The applicant or registrant has not paid the filing fee, but the director shall void the
order if the deficiency is corrected.
(b) Institution of stop order. The director may not institute a stop order proceeding against an
effective registration statement on the basis of conduct or a transaction known to the director when
the registration statement became effective unless the proceeding is instituted within thirty days
after the registration statement became effective.
(c) Summary process. The director may summarily revoke, deny, postpone, or suspend the
effectiveness of a registration statement pending final determination of an administrative
proceeding. Upon the issuance of the order, the director shall promptly notify each person specified
in subsection (d) that the order has been issued, the reasons for the revocation, denial,
postponement, or suspension, and that within fifteen days after the receipt of a request in a record
from the person the matter will be scheduled for a hearing. If a hearing is not requested and none
is ordered by the director, within thirty days after the date of service of the order, the order
becomes final. If a hearing is requested or ordered, the director, after notice of and opportunity for
hearing for each person subject to the order, may modify or vacate the order or extend the order
until final determination.
(d) Procedural requirements for stop order. A stop order may not be issued under this section
without:
(1) Appropriate notice to the applicant or registrant, the issuer, and the person on whose
behalf the securities are to be or have been offered;
(2) An opportunity for hearing; and
(3) Findings of fact and conclusions of law in a record in accordance with chapter 1-26.
(e) Modification or vacation of stop order. The director may modify or vacate a stop order
issued under this section if the director finds that the conditions that caused its issuance have
changed or that it is necessary or appropriate in the public interest or for the protection of investors.
Section
16.
Section 307.
The director may waive or modify, in whole or in part, any or all of
the requirements of Sections 302, 303, and 304(b) or the requirement of any information or record
in a registration statement or in a periodic report filed pursuant to Section 305(h).
Section
17.
Section 401.
(a) Registration requirement. It is unlawful for a person to transact
business in this state as a broker-dealer unless the person is registered under this Act as a broker-
dealer or is exempt from registration as a broker-dealer under subsection (b) or (d).
(b) Exemptions from registration. The following persons are exempt from the registration
requirement of subsection (a):
(1) A broker-dealer without a place of business in this state if its only transactions effected
in this state are with:
(A) The issuer of the securities involved in the transactions;
(B) A broker-dealer registered as a broker-dealer under this Act or not required to be
registered as a broker-dealer under this Act;
(C) An institutional investor;
(D) A nonaffiliated federal covered investment adviser with investments under
management in excess of one hundred million dollars acting for the account of
others pursuant to discretionary authority in a signed record;
(E) A bona fide preexisting customer whose principal place of residence is not in this
state and the person is registered as a broker-dealer under the Securities
Exchange Act of 1934 or not required to be registered under the Securities
Exchange Act of 1934 and is registered under the securities act of the state in
which the customer maintains a principal place of residence;
(F) A bona fide preexisting customer whose principal place of residence is in this
state but was not present in this state when the customer relationship was
established, if:
(i) The broker-dealer is registered under the Securities Exchange Act of 1934
or not required to be registered under the Securities Exchange Act of 1934
and is registered under the securities laws of the state in which the
customer relationship was established and where the customer had
maintained a principal place of residence; and
(ii) Within forty-five days after the customer's first transaction in this state, the
person files an application for registration as a broker-dealer in this state
and a further transaction is not effected more than seventy-five days after
the date on which the application is filed, or, if earlier, the date on which
the director notifies the person that the director has denied the application
for registration or has stayed the pendency of the application for good
cause;
(G) Not more than three customers in this state during the previous twelve months,
in addition to those customers specified in subparagraphs (A) through (F) and
under subparagraph (H), if the broker-dealer is registered under the Securities
Exchange Act of 1934 or not required to be registered under the Securities
Exchange Act of 1934 and is registered under the securities act of the state in
which the broker-dealer has its principal place of business; and
(H) Any other person exempted by rule adopted or order issued under this Act; and
(2) A person that deals solely in United States government securities and is supervised as
a dealer in government securities by the Board of Governors of the Federal Reserve
System, the Comptroller of the Currency, the Federal Deposit Insurance Corporation,
or the Office of Thrift Supervision.
(c) Limits on employment or association. It is unlawful for a broker-dealer, or for an issuer
engaged in offering, offering to purchase, purchasing, or selling securities in this state, directly or
indirectly, to employ or associate with an individual to engage in an activity related to securities
transactions in this state if the registration of the individual is suspended or revoked or the
individual is barred from employment or association with a broker-dealer, an issuer, an investment
adviser, or a federal covered investment adviser by an order of the director under this Act, the
Securities and Exchange Commission, or a self-regulatory organization. A broker-dealer or issuer
does not violate this subsection if the broker-dealer or issuer did not know and in the exercise of
reasonable care could not have known, of the suspension, revocation, or bar. Upon request from
a broker-dealer or issuer and for good cause, an order under this Act may modify or waive, in
whole or in part, the application of the prohibitions of this subsection to the broker-dealer.
(d) Foreign transactions. A rule adopted or order issued under this Act may permit:
(1) A broker-dealer that is registered in Canada or other foreign jurisdiction and that does
not have a place of business in this state to effect transactions in securities with or for,
or attempt to effect the purchase or sale of any securities by:
(A) An individual from Canada or other foreign jurisdiction who is temporarily
present in this state and with whom the broker-dealer had a bona fide customer
relationship before the individual entered the United States;
(B) An individual from Canada or other foreign jurisdiction who is present in this
state and whose transactions are in a self-directed tax advantaged retirement plan
of which the individual is the holder or contributor in that foreign jurisdiction;
or
(C) An individual who is present in this state, with whom the broker-dealer customer
relationship arose while the individual was temporarily or permanently a resident
in Canada or the other foreign jurisdiction; and
(2) An agent who represents a broker-dealer that is exempt under this subsection to effect
transactions in securities or attempt to effect the purchase or sale of securities in this
state as permitted for a broker-dealer described in paragraph (1).
Section
18.
Section 402.
(a) Registration requirement. It is unlawful for an individual to
transact business in this state as an agent unless the individual is registered under this Act as an
agent or is exempt from registration as an agent under subsection (b).
(b) Exemptions from registration. The following individuals are exempt from the registration
requirement of subsection (a):
(1) An individual who represents a broker-dealer in effecting transactions in this state
limited to those described in Section 15(h)(2) of the Securities Exchange Act of 1934
(15 U.S.C. Section 78(o)(2));
(2) An individual who represents a broker-dealer that is exempt under Section 401(b) or
(d);
(3) An individual who represents an issuer with respect to an offer or sale of the issuer's
own securities or those of the issuer's parent or any of the issuer's subsidiaries, and who
is not compensated in connection with the individual's participation by the payment of
commissions or other remuneration based, directly or indirectly, on transactions in those
securities;
(4) An individual who represents an issuer and who effects transactions in the issuer's
securities exempted by Section 202, other than Section 202(11) and (14);
(5) An individual who represents an issuer that effects transactions solely in federal covered
securities of the issuer, but an individual who effects transactions in a federal covered
security under Section 18(b)(3) or 18(b)(4)(D) of the Securities Act of 1933 (15 U.S.C.
Section 77r(b)(3) or 77r(b)(4)(D)) is not exempt if the individual is compensated in
connection with the agent's participation by the payment of commissions or other
remuneration based, directly or indirectly, on transactions in those securities;
(6) An individual who represents a broker-dealer registered in this state under Section
401(a) or exempt from registration under Section 401(b) in the offer and sale of
securities for an account of a nonaffiliated federal covered investment adviser with
investments under management in excess of one hundred million dollars acting for the
account of others pursuant to discretionary authority in a signed record;
(7) An individual who represents an issuer in connection with the purchase of the issuer's
own securities;
(8) An individual who represents an issuer and who restricts participation to performing
clerical or ministerial acts; or
(9) Any other individual exempted by rule adopted or order issued under this Act.
(c) Registration effective only while employed or associated. The registration of an agent is
effective only while the agent is employed by or associated with a broker-dealer registered under
this Act or an issuer that is offering, selling, or purchasing its securities in this state.
(d) Limit on employment or association. It is unlawful for a broker-dealer, or an issuer engaged
in offering, selling, or purchasing securities in this state, to employ or associate with an agent who
transacts business in this state on behalf of broker-dealers or issuers unless the agent is registered
under subsection (a) or exempt from registration under subsection (b).
(e) Limit on affiliations. An individual may not act as an agent for more than one broker-dealer
or one issuer at a time, unless the broker-dealer or the issuer for which the agent acts are affiliated
by direct or indirect common control or are authorized by rule or order under this Act.
Section
19.
Section 403.
(a) Registration requirement. It is unlawful for a person to transact
business in this state as an investment adviser unless the person is registered under this Act as an
investment adviser or is exempt from registration as an investment adviser under subsection (b).
(b) Exemptions from registration. The following persons are exempt from the registration
requirement of subsection (a):
(1) A person without a place of business in this state that is registered under the securities
act of the state in which the person has its principal place of business if its only clients
in this state are:
(A) Federal covered investment advisers, investment advisers registered under this
Act, or broker-dealers registered under this Act;
(B) Institutional investors;
(C) Bona fide preexisting clients whose principal places of residence are not in this
state if the investment adviser is registered under the securities act of the state in
which the clients maintain principal places of residence; or
(D) Any other client exempted by rule adopted or order issued under this Act;
(2) A person without a place of business in this state if the person has had, during the
preceding twelve months, not more than five clients that are resident in this state in
addition to those specified under paragraph (1); or
(3) Any other person exempted by rule adopted or order issued under this Act.
(c) Limits on employment or association. It is unlawful for an investment adviser, directly or
indirectly, to employ or associate with an individual to engage in an activity related to investment
advice in this state if the registration of the individual is suspended or revoked or the individual
is barred from employment or association with an investment adviser, federal covered investment
adviser, or broker-dealer by an order under this Act, the Securities and Exchange Commission, or
a self-regulatory organization, unless the investment adviser did not know, and in the exercise of
reasonable care could not have known, of the suspension, revocation, or bar. Upon request from
the investment adviser and for good cause, the director, by order, may waive, in whole or in part,
the application of the prohibitions of this subsection to the investment adviser.
(d) Investment adviser representative registration required. It is unlawful for an investment
adviser to employ or associate with an individual required to be registered under this Act as an
investment adviser representative who transacts business in this state on behalf of the investment
adviser unless the individual is registered under Section 404(a) or is exempt from registration
under Section 404(b).
Section
20.
Section 404.
(a) Registration requirement. It is unlawful for an individual to
transact business in this state as an investment adviser representative unless the individual is
registered under this Act as an investment adviser representative or is exempt from registration
as an investment adviser representative under subsection (b).
(b) Exemptions from registration. The following individuals are exempt from the registration
requirement of subsection (a):
(1) An individual who is employed by or associated with an investment adviser that is
exempt from registration under Section 403(b) or a federal covered investment adviser
that is excluded from the notice filing requirements of Section 405; and
(2) Any other individual exempted by rule adopted or order issued under this Act.
(c) Registration effective only while employed or associated. The registration of an investment
adviser representative is not effective while the investment adviser representative is not employed
by or associated with an investment adviser registered under this Act or a federal covered
investment adviser that has made or is required to make a notice filing under Section 405.
(d) Limit on affiliations. An individual may transact business as an investment adviser
representative for more than one investment adviser or federal covered investment adviser unless
a rule adopted or order issued under this Act prohibits or limits an individual from acting as an
investment adviser representative for more than one investment adviser or federal covered
investment adviser.
(e) Limits on employment or association. It is unlawful for an individual acting as an
investment adviser representative, directly or indirectly, to conduct business in this state on behalf
of an investment adviser or a federal covered investment adviser if the registration of the individual
as an investment adviser representative is suspended or revoked or the individual is barred from
employment or association with an investment adviser or a federal covered investment adviser by
an order under this Act, the Securities and Exchange Commission, or a self-regulatory
organization. Upon request from a federal covered investment adviser and for good cause, the
director, by order issued, may waive, in whole or in part, the application of the requirements of this
subsection to the federal covered investment adviser.
(f) Referral fees. An investment adviser registered under this Act, a federal covered investment
adviser that has filed a notice under Section 405, or a broker-dealer registered under this Act is not
required to employ or associate with an individual as an investment adviser representative if the
only compensation paid to the individual for a referral of investment advisory clients is paid to an
investment adviser registered under this Act, a federal covered investment adviser who has filed
a notice under Section 405, or a broker-dealer registered under this Act with which the individual
is employed or associated as an investment adviser representative.
Section
21.
Section 405.
(a) Notice filing requirement. Except with respect to a federal covered
investment adviser described in subsection (b), it is unlawful for a federal covered investment
adviser to transact business in this state as a federal covered investment adviser unless the federal
covered investment adviser complies with subsection (c).
(b) Notice filing requirement not required. The following federal covered investment advisers
are not required to comply with subsection (c):
(1) A federal covered investment adviser without a place of business in this state if its only
clients in this state are:
(A) Federal covered investment advisers, investment advisers registered under this
Act, and broker-dealers registered under this Act;
(B) Institutional investors;
(C) Bona fide preexisting clients whose principal places of residence are not in this
state; or
(D) Other clients specified by rule adopted or order issued under this Act;
(2) A federal covered investment adviser without a place of business in this state if the
person has had, during the preceding twelve months, not more than five clients that are
resident in this state in addition to those specified under paragraph (1); and
(3) Any other person excluded by rule adopted or order issued under this Act.
(c) Notice filing procedure. A person acting as a federal covered investment adviser, not
excluded under subsection (b), shall file a notice, a consent to service of process complying with
Section 611, and such records as have been filed with the Securities and Exchange Commission
under the Investment Advisers Act of 1940 required by rule adopted or order issued under this Act
and pay the fees specified in Section 410(e).
(d) Effectiveness of filing. The notice under subsection (c) becomes effective upon its filing.
Section
22.
Section 406.
(a) Application for initial registration. A person shall register as a
broker-dealer, agent, investment adviser, or investment adviser representative by filing an
application and a consent to service of process complying with Section 611, and paying the fee
specified in Section 410 and any reasonable fees charged by the designee of the director for
processing the filing. The application must contain:
(1) The information or record required for the filing of a uniform application; and
(2) Upon request by the director, any other financial or other information or record that the
director determines is appropriate.
(b) Amendment. If the information or record contained in an application filed under subsection
(a) is or becomes inaccurate or incomplete in a material respect, the registrant shall promptly file
a correcting amendment.
(c) Effectiveness of registration. If an order is not in effect and a proceeding is not pending
under Section 412, registration becomes effective at noon on the forty-fifth day after a completed
application is filed, unless the registration is denied. A rule adopted or order issued under this Act
may set an earlier effective date or may defer the effective date until noon on the forty-fifth day
after the filing of any amendment completing the application.
(d) Registration renewal. A registration is effective until midnight on December thirty-first of
the year for which the application for registration is filed. Unless an order is in effect under Section
412, a registration may be automatically renewed each year by filing such records as are required
by rule adopted or order issued under this Act, by paying the fee specified in Section 410, and by
paying costs charged by the designee of the director for processing the filings.
(e) Additional conditions or waivers. A rule adopted or order issued under this Act may impose
such other conditions, not inconsistent with the National Securities Markets Improvement Act of
1996. An order issued under this Act may waive, in whole or in part, specific requirements in
connection with registration as are in the public interest and for the protection of investors.
Section
23.
Section 407.
(a) Succession. A broker-dealer or investment adviser may succeed
to the current registration of another broker-dealer or investment adviser or a notice filing of a
federal covered investment adviser, and a federal covered investment adviser may succeed to the
current registration of an investment adviser or notice filing of another federal covered investment
adviser, by filing as a successor an application for registration pursuant to Section 401 or 403 or
a notice pursuant to Section 405 for the unexpired portion of the current registration or notice
filing.
(b) Organizational change. A broker-dealer or investment adviser that changes its form of
organization or state of incorporation or organization may continue its registration by filing an
amendment to its registration if the change does not involve a material change in its financial
condition or management. The amendment becomes effective when filed or on a date designated
by the registrant in its filing. The new organization is a successor to the original registrant for the
purposes of this Act. If there is a material change in financial condition or management, the broker-
dealer or investment adviser shall file a new application for registration. A predecessor registered
under this Act shall stop conducting its securities business other than winding down transactions
and shall file for withdrawal of broker-dealer or investment adviser registration within forty-five
days after filing its amendment to effect succession.
(c) Name change. A broker-dealer or investment adviser that changes its name may continue
its registration by filing an amendment to its registration. The amendment becomes effective when
filed or on a date designated by the registrant.
(d) Change of control. A change of control of a broker-dealer or investment adviser may be
made in accordance with a rule adopted or order issued under this Act.
Section
24.
Section 408.
(a) Notice of termination. If an agent registered under this Act
terminates employment by or association with a broker-dealer or issuer, or if an investment adviser
representative registered under this Act terminates employment by or association with an
investment adviser or federal covered investment adviser, or if either registrant terminates
activities that require registration as an agent or investment adviser representative, the broker-
dealer, issuer, investment adviser, or federal covered investment adviser shall promptly file a
notice of termination. If the registrant learns that the broker-dealer, issuer, investment adviser, or
federal covered investment adviser has not filed the notice, the registrant may do so.
(b) Transfer of employment or association. If an agent registered under this Act terminates
employment by or association with a broker-dealer registered under this Act and begins
employment by or association with another broker-dealer registered under this Act; or if an
investment adviser representative registered under this Act terminates employment by or
association with an investment adviser registered under this Act or a federal covered investment
adviser that has filed a notice under Section 405 and begins employment by or association with
another investment adviser registered under this Act or a federal covered investment adviser that
has filed a notice under Section 405; then upon the filing by or on behalf of the registrant, within
thirty days after the termination, of an application for registration that complies with the
requirement of Section 406(a) and payment of the filing fee required under Section 410, the
registration of the agent or investment adviser representative is:
(1) Immediately effective as of the date of the completed filing, if the agent's Central
Registration Depository record or successor record or the investment adviser
representative's Investment Adviser Registration Depository record or successor record
does not contain a new or amended disciplinary disclosure within the previous twelve
months; or
(2) Temporarily effective as of the date of the completed filing, if the agent's Central
Registration Depository record or successor record or the investment adviser
representative's Investment Adviser Registration Depository record or successor record
contains a new or amended disciplinary disclosure within the preceding twelve months.
(c) Withdrawal of temporary registration. The director may withdraw a temporary registration
if there are or were grounds for discipline as specified in Section 412 and the director does so
within thirty days after the filing of the application. If the director does not withdraw the temporary
registration within the thirty-day period, registration becomes automatically effective on the thirty-
first day after filing.
(d) Power to prevent registration. The director may prevent the effectiveness of a transfer of
an agent or investment adviser representative under subsection (b)(1) or (2) based on the public
interest and the protection of investors.
(e) Termination of registration or application for registration. If the director determines that a
registrant or applicant for registration is no longer in existence or has ceased to act as a broker-
dealer, agent, investment adviser, or investment adviser representative, or is the subject of an
adjudication of incapacity or is subject to the control of a committee, conservator, or guardian, or
cannot reasonably be located, a rule adopted or order issued under this Act may require the
registration be canceled or terminated or the application denied. The director may reinstate a
canceled or terminated registration, with or without hearing, and may make the registration
retroactive.
Section
25.
Section 409.
Withdrawal of registration by a broker-dealer, agent, investment
adviser, or investment adviser representative becomes effective sixty days after the filing of the
application to withdraw or within any shorter period as provided by rule adopted or order issued
under this Act unless a revocation or suspension proceeding is pending when the application is
filed. If a proceeding is pending, withdrawal becomes effective when and upon such conditions
as required by rule adopted or order issued under this Act. The director may institute a revocation
or suspension proceeding under Section 412 within one year after the withdrawal became effective
automatically and issue a revocation or suspension order as of the last date on which registration
was effective if a proceeding is not pending.
Section
26.
Section 410.
(a) Broker-dealers. A person shall pay a fee of one hundred fifty
dollars when initially filing an application for registration as a broker-dealer and a fee of one
hundred fifty dollars when filing a renewal of registration as a broker-dealer. If the filing results
in a denial or withdrawal, the director shall retain the fee.
(b) Agents. The fee for an individual is one hundred twenty five dollars when filing an
application for registration as an agent, a fee of one hundred twenty five dollars when filing a
renewal of registration as an agent, and a fee of one hundred twenty five dollars when filing for
a change of registration as an agent. If the filing results in a denial or withdrawal, the director shall
retain the fee.
(c) Investment advisers. A person shall pay a fee of one hundred dollars when filing an
application for registration as an investment adviser and a fee of one hundred dollars when filing
a renewal of registration as an investment adviser. If the filing results in a denial or withdrawal,
the director shall retain the fee.
(d) Investment adviser representatives. The fee for an individual is fifty dollars when filing an
application for registration as an investment adviser representative, a fee of fifty dollars when filing
a renewal of registration as an investment adviser representative, and a fee of fifty dollars when
filing a change of registration as an investment adviser representative. If the filing results in a
denial or withdrawal, the director shall retain the fee.
(e) Federal covered investment advisers. A federal covered investment adviser required to file
a notice under Section 405 shall pay an initial fee of two hundred dollars and an annual notice fee
of two hundred dollars.
(f) Payment. A person required to pay a filing or notice fee under this section may transmit the
fee through or to a designee as a rule or order provides under this Act.
Section
27.
Section 411.
(a) Financial requirements. Subject to Section 15(h) of the Securities
Exchange Act of 1934 (15 U.S.C. Section 78o(h) ) or Section 222 of the Investment Advisers Act
of 1940 (15 U.S.C. Section 80b-22), a rule adopted or order issued under this Act may establish
minimum financial requirements for broker-dealers registered or required to be registered under
this Act and investment advisers registered or required to be registered under this Act.
(b) Financial reports. Subject to Section 15(h) of the Securities Exchange Act of 1934 (15
U.S.C. Section 78o(h)) or Section 222(b) of the Investment Advisers Act of 1940 (15 U.S.C.
Section 80b-22), a broker-dealer registered or required to be registered under this Act and an
investment adviser registered or required to be registered under this Act shall file such financial
reports as are required by a rule adopted or order issued under this Act. If the information
contained in a record filed under this subsection is or becomes inaccurate or incomplete in a
material respect, the registrant shall promptly file a correcting amendment.
(c) Record keeping. Subject to Section 15(h) of the Securities Exchange Act of 1934 (15
U.S.C. Section 78o(h)) or Section 222 of the Investment Advisers Act of 1940 (15 U.S.C. Section
80b-22):
(1) A broker-dealer registered or required to be registered under this Act and an investment
adviser registered or required to be registered under this Act shall make and maintain
the accounts, correspondence, memoranda, papers, books, and other records required
by rule adopted or order issued under this Act;
(2) Broker-dealer records required to be maintained under paragraph (1) may be maintained
in any form of data storage acceptable under Section 17(a) of the Securities Exchange
Act of 1934 (15 U.S.C. Section 78q(a)) if they are readily accessible to the director; and
(3) Investment adviser records required to be maintained under paragraph (1) may be
maintained in any form of data storage required by rule adopted or order issued under
this Act.
(d) Audits or inspections. The records of a broker-dealer registered or required to be registered
under this Act and of an investment adviser registered or required to be registered under this Act
are subject to such reasonable periodic, special, or other audits or inspections by a representative
of the director, within or without this state, as the director considers necessary or appropriate in
the public interest and for the protection of investors. An audit or inspection may be made at any
time and without prior notice. The director may copy, and remove for audit or inspection copies
of, all records the director reasonably considers necessary or appropriate to conduct the audit or
inspection. The director may assess a reasonable charge for conducting an audit or inspection under
this subsection.
(e) Custody and discretionary authority bond or insurance. Subject to Section 15(h) of the
Securities Exchange Act of 1934 (15 U.S.C. Section 78o(h)) or Section 222 of the Investment
Advisers Act of 1940 (15 U.S.C. Section 80b-22), a rule adopted or order issued under this Act
may require a broker-dealer or investment adviser that has custody of or discretionary authority
over funds or securities of a customer or client to obtain insurance or post a bond or other
satisfactory form of security in an amount not to exceed fifty thousand dollars. The director may
determine the requirements of the insurance, bond, or other satisfactory form of security. Insurance
or a bond or other satisfactory form of security may not be required of a broker-dealer registered
under this Act whose net capital exceeds, or of an investment adviser registered under this Act
whose minimum financial requirements exceed, the amounts required by rule or order under this
Act. The insurance, bond, or other satisfactory form of security must permit an action by a person
to enforce any liability on the insurance, bond, or other satisfactory form of security if instituted
within the time limitations in Section 509(j)(2).
(f) Requirements for custody. Subject to Section 15(h) of the Securities Exchange Act of 1934
(15 U.S.C. Section 78o(h)) or Section 222 of the Investment Advisers Act of 1940 (15 U.S.C.
Section 80b-22), an agent may not have custody of funds or securities of a customer except under
the supervision of a broker-dealer and an investment adviser representative may not have custody
of funds or securities of a client except under the supervision of an investment adviser or a federal
covered investment adviser. A rule adopted or order issued under this Act may prohibit, limit, or
impose conditions on a broker-dealer regarding custody of funds or securities of a customer and
on an investment adviser regarding custody of securities or funds of a client.
(g) Investment adviser brochure rule. With respect to an investment adviser registered or
required to be registered under this Act, a rule adopted or order issued under this Act may require
that information or other record be furnished or disseminated to clients or prospective clients in
this state as necessary or appropriate in the public interest and for the protection of investors and
advisory clients.
(h) Continuing education. A rule adopted or order issued under this Act may require an
individual registered under Section 402 or 404 to participate in a continuing education program
approved by the Securities and Exchange Commission and administered by a self-regulatory
organization or, in the absence of such a program, a rule adopted or order issued under this Act
may require continuing education for an individual registered under Section 404.
Section
28.
Section 412.
(a) Disciplinary conditions-applicants. If the director finds that the
order is in the public interest and subsection (d) authorizes the action, an order issued under this
Act may deny an application, or may condition or limit registration of an applicant to be a broker-
dealer, agent, investment adviser, or investment adviser representative, and, if the applicant is a
broker-dealer or investment adviser, of a partner, officer, director, or person having a similar status
or performing similar functions, or a person directly or indirectly in control, of the broker-dealer
or investment adviser.
(b) Disciplinary conditions _ registrants. If the director finds that the order is in the public
interest and subsection (d) authorizes the action, an order issued under this Act may revoke,
suspend, condition, or limit the registration of a registrant and, if the registrant is a broker-dealer
or investment adviser, of a partner, officer, director, or person having a similar status or performing
similar functions, or a person directly or indirectly in control, of the broker-dealer or investment
adviser. However, the director may not:
(1) Institute a revocation or suspension proceeding under this subsection based on an order
issued under a law of another state that is reported to the director or a designee of the
director more than one year after the date of the order on which it is based; or
(2) Under subsection (d)(5)(A) or (B), issue an order on the basis of an order issued under
the securities act of another state unless the other order was based on conduct for which
subsection (d) would authorize the action had the conduct occurred in this state.
(c) Disciplinary penalties _ registrants. If the director finds that the order is in the public
interest and subsection (d)(1) through (6), (8), (9), (10), or (12) and (13) authorizes the action, an
order under this Act may censure, impose a bar, or impose a civil penalty in an amount not to
exceed a maximum of ten thousand dollars per violation, on a registrant, and, if the registrant is
a broker-dealer or investment adviser, a partner, officer, director, or person having a similar status
or performing similar functions, or a person directly or indirectly in control, of the broker-dealer
or investment adviser.
(d) Grounds for discipline. A person may be disciplined under subsections (a) through (c) if
the person:
(1) Has filed an application for registration in this state under this Act or the predecessor
act within the previous ten years, which, as of the effective date of registration or as of
any date after filing in the case of an order denying effectiveness, was incomplete in any
material respect or contained a statement that, in light of the circumstances under which
it was made, was false or misleading with respect to a material fact;
(2) Willfully violated or willfully failed to comply with this Act or the predecessor act or
a rule adopted or order issued under this Act or the predecessor act within the previous
ten years;
(3) Has been convicted of a felony or within the previous ten years has been convicted of
a misdemeanor involving a security, a commodity future or option contract, or an aspect
of a business involving securities, commodities, investments, franchises, insurance,
banking, or finance;
(4) Is enjoined or restrained by a court of competent jurisdiction in an action instituted by
the director under this Act or the predecessor act, a state, the Securities and Exchange
Commission, or the United States from engaging in or continuing an act, practice, or
course of business involving an aspect of a business involving securities, commodities,
investments, franchises, insurance, banking, or finance;
(5) Is the subject of an order, issued after notice and opportunity for hearing by:
(A) The securities, depository institution, insurance, or other financial services
regulator of a state or by the Securities and Exchange Commission or other
federal agency denying, revoking, barring, or suspending registration as a broker-
dealer, agent, investment adviser, federal covered investment adviser, or
investment adviser representative;
(B) The securities regulator of a state or the Securities and Exchange Commission
against a broker-dealer, agent, investment adviser, investment adviser
representative, or federal covered investment adviser;
(C) The Securities and Exchange Commission or a self-regulatory organization
suspending or expelling the registrant from membership in the self-regulatory
organization;
(D) A court adjudicating a United States Postal Service fraud order;
(E) The insurance regulator of a state denying, suspending, or revoking registration
as an insurance agent; or
(F) A depository institution regulator suspending or barring the person from the
depository institution business;
(6) Is the subject of an adjudication or determination, after notice and opportunity for
hearing, by the Securities and Exchange Commission, the Commodity Futures Trading
Commission; the Federal Trade Commission; a federal depository institution regulator,
or a depository institution, insurance, or other financial services regulator of a state that
the person willfully violated the Securities Act of 1933, the Securities Exchange Act of
1934, the Investment Advisers Act of 1940, the Investment Company Act of 1940, or
the Commodity Exchange Act, the securities or commodities law of a state, or a federal
or state law under which a business involving investments, franchises, insurance,
banking, or finance is regulated;
(7) Is insolvent, either because the person's liabilities exceed the person's assets or because
the person cannot meet the person's obligations as they mature, but the director may not
enter an order against an applicant or registrant under this paragraph without a finding
of insolvency as to the applicant or registrant;
(8) Refuses to allow or otherwise impedes the director from conducting an audit or
inspection under Section 411(d) or refuses access to a registrant's office to conduct an
audit or inspection under Section 411(d);
(9) Has failed to reasonably supervise an agent, investment adviser representative, or other
individual, if the agent, investment adviser representative, or other individual was
subject to the person's supervision and committed a violation of this Act or the
predecessor act or a rule adopted or order issued under this Act or the predecessor act
within the previous ten years;
(10) Has not paid the proper filing fee within thirty days after having been notified by the
director of a deficiency, but the director shall vacate an order under this paragraph when
the deficiency is corrected;
(11) After notice and opportunity for a hearing, has been found within the previous ten years:
(A) By a court of competent jurisdiction to have willfully violated the laws of a
foreign jurisdiction under which the business of securities, commodities,
investment, franchises, insurance, banking, or finance is regulated;
(B) To have been the subject of an order of a securities regulator of a foreign
jurisdiction denying, revoking, or suspending the right to engage in the business
of securities as a broker-dealer, agent, investment adviser, investment adviser
representative, or similar person; or
(C) To have been suspended or expelled from membership by or participation in a
securities exchange or securities association operating under the securities laws
of a foreign jurisdiction;
(12) Is the subject of a cease and desist order issued by the Securities and Exchange
Commission or issued under the securities, commodities, investment, franchise,
banking, finance, or insurance laws of a state;
(13) Has engaged in dishonest or unethical practices in the securities, commodities,
investment, franchise, banking, finance, or insurance business within the previous ten
years; or
(14) Is not qualified on the basis of factors such as training, experience, and knowledge of
the securities business. However, in the case of an application by an agent for a broker-
dealer that is a member of a self-regulatory organization or by an individual for
registration as an investment adviser representative, a denial order may not be based on
this paragraph if the individual has successfully completed all examinations required
by subsection (e). The director may require an applicant for registration under Section
402 or 404 who has not been registered in a state within the two years preceding the
filing of an application in this state to successfully complete an examination.
(e) Examinations. A rule adopted or order issued under this Act may require that an
examination, including an examination developed or approved by an organization of securities
regulators, be successfully completed by a class of individuals or all individuals. An order issued
under this Act may waive, in whole or in part, an examination as to an individual and a rule
adopted under this Act may waive, in whole or in part, an examination as to a class of individuals
if the director determines that the examination is not necessary or appropriate in the public interest
and for the protection of investors.
(f) Summary process. The director may suspend or deny an application summarily; restrict,
condition, limit, or suspend a registration; or censure, bar, or impose a civil penalty on a registrant
before final determination of an administrative proceeding. Upon the issuance of an order, the
director shall promptly notify each person subject to the order that the order has been issued, the
reasons for the action, and that within fifteen days after the receipt of a request in a record from
the person the matter will be scheduled for a hearing. If a hearing is not requested and none is
ordered by the director within thirty days after the date of service of the order, the order becomes
final by operation of law. If a hearing is requested or ordered, the director, after notice of and
opportunity for hearing to each person subject to the order, may modify or vacate the order or
extend the order until final determination.
(g) Procedural requirements. An order issued may not be issued under this section, except
under subsection (f), without:
(1) Appropriate notice to the applicant or registrant;
(2) Opportunity for hearing; and
(3) Findings of fact and conclusions of law in a record in accordance with chapter 1-26.
(h) Control person liability. A person that controls, directly or indirectly, a person not in
compliance with this section may be disciplined by order of the director under subsections (a)
through (c) to the same extent as the noncomplying person, unless the controlling person did not
know, and in the exercise of reasonable care could not have known, of the existence of conduct
that is a ground for discipline under this section.
(i) Limit on investigation or proceeding. The director may not institute a proceeding under
subsection(a), (b), or (c) based solely on material facts actually known by the director unless an
investigation or the proceeding is instituted within one year after the director actually acquires
knowledge of the material facts.
Section
29.
Section 501.
It is unlawful for a person, in connection with the offer, sale, or
purchase of a security, directly or indirectly:
(1) To employ a device, scheme, or artifice to defraud;
(2) To make an untrue statement of a material fact or to omit to state a material fact
necessary in order to make the statements made, in light of the circumstances under
which they were made, not misleading; or
(3) To engage in an act, practice, or course of business that operates or would operate as a
fraud or deceit upon another person.
Section
30.
Section 502.
(a) Fraud in providing investment advice. It is unlawful for a person
that advises others for compensation, either directly or indirectly or through publications or
writings, as to the value of securities or the advisability of investing in, purchasing, or selling
securities or that, for compensation and as part of a regular business, issues or promulgates
analyses or reports relating to securities:
(1) To employ a device, scheme, or artifice to defraud another person; or
(2) To engage in an act, practice, or course of business that operates or would operate as a
fraud or deceit upon another person.
(b) Rules defining fraud. A rule adopted under this Act may define an act, practice, or course
of business of an investment adviser or an investment adviser representative, other than a
supervised person of a federal covered investment adviser, as fraudulent, deceptive, or
manipulative, and prescribe means reasonably designed to prevent investment advisers and
investment adviser representatives, other than supervised persons of a federal covered investment
adviser, from engaging in acts, practices, and courses of business defined as fraudulent, deceptive,
or manipulative.
(c) Rules specifying contents of advisory contract. A rule adopted under this Act may specify
the contents of an investment advisory contract entered into, extended, or renewed by an
investment adviser.
Section
31.
Section 503.
(a) Civil. In a civil action or administrative proceeding under this Act,
a person claiming an exemption, exception, preemption, or exclusion has the burden to prove the
applicability of the claim.
(b) Criminal. In a criminal proceeding under this Act, a person claiming an exemption,
exception, preemption, or exclusion has the burden of going forward with evidence of the claim.
Section
32.
Section 504. (a) Filing requirement. Except as otherwise provided in subsection
(b), a rule adopted or order issued under this Act may require the filing of a prospectus, pamphlet,
circular, form letter, advertisement, sales literature, or other advertising record relating to a security
or investment advice, addressed or intended for distribution to prospective investors, including
clients or prospective clients of a person registered or required to be registered as an investment
adviser under this Act.
(b) Excluded communications. This section does not apply to sales and advertising literature
specified in subsection (a) which relates to a federal covered security, a federal covered investment
adviser, or a security or transaction exempted by Section 201, 202, or 203 except as required
pursuant to Section 201(7).
Section
33.
Section 505.
It is unlawful for a person to make or cause to be made, in a record
that is used in an action or proceeding or filed under this Act, a statement that, at the time and in
the light of the circumstances under which it is made, is false or misleading in a material respect,
or, in connection with the statement, to omit to state a material fact necessary to make the
statement made, in the light of the circumstances under which it was made, not false or misleading.
Section
34.
Section 506.
The filing of an application for registration, a registration statement,
a notice filing under this Act, the registration of a person, the notice filing by a person, or the
registration of a security under this Act does not constitute a finding by the director that a record
filed under this Act is true, complete, and not misleading. The filing or registration or the
availability of an exemption, exception, preemption, or exclusion for a security or a transaction
does not mean that the director has passed upon the merits or qualifications of, or recommended
or given approval to, a person, security, or transaction. It is unlawful to make, or cause to be made,
to a purchaser, customer, client, or prospective customer or client a representation inconsistent
with this section.
Section
35.
Section 507.
A broker-dealer, agent, investment adviser, federal covered
investment adviser, or investment adviser representative is not liable to another broker-dealer,
agent, investment adviser, federal covered investment adviser, or investment adviser representative
for defamation relating to a statement that is contained in a record required by the director, or
designee of the director, the Securities and Exchange Commission, or a self-regulatory
organization, unless the person knew, or should have known at the time that the statement was
made, that it was false in a material respect or the person acted in reckless disregard of the
statement's truth or falsity.
Section
36.
Section 508.
(a) Criminal penalties. It is a class four felony for any person that
willfully violates this Act, or a rule adopted or order issued under this Act, except Section 504 or
the notice filing requirements of Section 302 or 405, or that willfully violates Section 505 knowing
the statement made to be false or misleading in a material respect, upon conviction, shall be fined
not more than ten thousand dollars per violation. An individual convicted of violating a rule or
order under this Act may be fined, but may not be imprisoned, if the individual did not have
knowledge of the rule or order. A subsequent violation is a Class 3 felony.
(b) Criminal reference not required. The Attorney General or the proper prosecuting attorney
with or without a reference from the director, may institute criminal proceedings under this Act.
(c) No limitation on other criminal enforcement. This Act does not limit the power of this state
to punish a person for conduct that constitutes a crime under other laws of this state.
Section
37.
Section 509.
(a) Securities Litigation Uniform Standards Act. Enforcement of civil
liability under this section is subject to the Securities Litigation Uniform Standards Act of 1998.
(b) Liability of seller to purchaser. A person is liable to the purchaser if the person sells a
security in violation of Section 301 or, by means of an untrue statement of a material fact or an
omission to state a material fact necessary in order to make the statement made, in light of the
circumstances under which it is made, not misleading, the purchaser not knowing the untruth or
omission and the seller not sustaining the burden of proof that the seller did not know and, in the
exercise of reasonable care, could not have known of the untruth or omission. An action under this
subsection is governed by the following:
(1) The purchaser may maintain an action to recover the consideration paid for the security,
less the amount of any income received on the security, and interest at Category D,
§
54-3-16 from the date of the purchase, costs, and reasonable attorneys' fees
determined by the court, upon the tender of the security, or for actual damages as
provided in paragraph (3).
(2) The tender referred to in paragraph (1) may be made any time before entry of judgment.
Tender requires only notice in a record of ownership of the security and willingness to
exchange the security for the amount specified. A purchaser that no longer owns the
security may recover actual damages as provided in paragraph (3).
(3) Actual damages in an action arising under this subsection are the amount that would be
recoverable upon a tender less the value of the security when the purchaser disposed of
it, and interest at Category D
§
54-3-16 from the date of the purchase, costs, and
reasonable attorneys' fees determined by the court.
(c) Liability of purchaser to seller. A person is liable to the seller if the person buys a security
by means of an untrue statement of a material fact or omission to state a material fact necessary
in order to make the statement made, in light of the circumstances under which it is made, not
misleading, the seller not knowing of the untruth or omission, and the purchaser not sustaining the
burden of proof that the purchaser did not know, and in the exercise of reasonable care, could not
have known of the untruth or omission. An action under this subsection is governed by the
following:
(1) The seller may maintain an action to recover the security, and any income received on
the security, costs, and reasonable attorneys' fees determined by the court, upon the
tender of the purchase price, or for actual damages as provided in paragraph (3).
(2) The tender referred to in paragraph (1) may be made any time before entry of judgment.
Tender requires only notice in a record of the present ability to pay the amount tendered
and willingness to take delivery of the security for the amount specified. If the purchaser
no longer owns the security, the seller may recover actual damages as provided in
paragraph (3).
(3) Actual damages in an action arising under this subsection are the difference between the
price at which the security was sold and the value the security would have had at the
time of the sale in the absence of the purchaser's conduct causing liability, and interest
at Category D
§
54-3-16 from the date of the sale of the security, costs, and reasonable
attorneys' fees determined by the court.
(d) Liability of unregistered broker-dealer and agent. A person acting as a broker-dealer or
agent that sells or buys a security in violation of Section 401(a), 402(a), or 506 is liable to the
customer. The customer, if a purchaser, may maintain an action for recovery of actual damages as
specified in subsections (b)(1) through (3), or, if a seller, for a remedy as specified in subsections
(c)(1) through (3).
(e) Liability of unregistered investment adviser and investment adviser representative. A person
acting as an investment adviser or investment adviser representative that provides investment
advice for compensation in violation of Section 403(a), 404(a), or 506 is liable to the client. The
client may maintain an action to recover the consideration paid for the advice, interest at Category
D
§
54-3-16 from the date of payment, costs, and reasonable attorneys' fees determined by the
court.
(f) Liability for investment advice. A person that receives directly or indirectly any
consideration for providing investment advice to another person and that employs a device,
scheme, or artifice to defraud the other person or engages in an act, practice, or course of business
that operates or would operate as a fraud or deceit on the other person, is liable to the other person.
An action under this subsection is governed by the following:
(1) The person defrauded may maintain an action to recover the consideration paid for the
advice and the amount of any actual damages caused by the fraudulent conduct, interest
at Category D
§
54-3-16 from the date of the fraudulent conduct, costs, and reasonable
attorneys' fees determined by the court, less the amount of any income received as a
result of the fraudulent conduct.
(2) This subsection does not apply to a broker-dealer or its agents if the investment advice
provided is solely incidental to transacting business as a broker-dealer and no special
compensation is received for the investment advice.
(g) Joint and several liability. The following persons are liable jointly and severally with and
to the same extent as persons liable under subsections (b) through (f):
(1) A person that directly or indirectly controls a person liable under subsections (b)
through (f), unless the controlling person sustains the burden of proof that the person
did not know, and in the exercise of reasonable care could not have known, of the
existence of conduct by reason of which the liability is alleged to exist;
(2) An individual who is a managing partner, executive officer, or director of a person
liable under subsections (b) through (f), including an individual having a similar status
or performing similar functions, unless the individual sustains the burden of proof that
the individual did not know and, in the exercise of reasonable care could not have
known, of the existence of conduct by reason of which the liability is alleged to exist;
(3) An individual who is an employee of or associated with a person liable under
subsections (b) through (f) and who materially aids the conduct giving rise to the
liability, unless the individual sustains the burden of proof that the individual did not
know and, in the exercise of reasonable care could not have known, of the existence of
conduct by reason of which the liability is alleged to exist; and
(4) A person that is a broker-dealer, agent, investment adviser, or investment adviser
representative that materially aids the conduct giving rise to the liability under
subsections (b) through (f), unless the person sustains the burden of proof that the
person did not know and, in the exercise of reasonable care could not have known, of
the existence of conduct by reason of which liability is alleged to exist.
(h) Right of contribution. A person liable under this section has a right of contribution as in
cases of contract against any other person liable under this section for the same conduct.
(i) Survival of cause of action. A cause of action under this section survives the death of an
individual who might have been a plaintiff or defendant.
(j) Statute of limitations. A person may not obtain relief:
(1) Under subsection (b) for violation of Section 301, or under subsection (d) or (e), unless
the action is instituted within one year after the violation occurred; or
(2) Under subsection (b), other than for violation of Section 301, or under subsection (c)
or (f), unless the action is instituted within the earlier of two years after discovery of the
facts constituting the violation or five years after the violation.
(k) No enforcement of violative contract. A person that has made, or has engaged in the
performance of, a contract in violation of this Act or a rule adopted or order issued under this Act,
or that has acquired a purported right under the contract with knowledge of conduct by reason of
which its making or performance was in violation of this Act, may not base an action on the
contract.
(l) No contractual waiver. A condition, stipulation, or provision binding a person purchasing
or selling a security or receiving investment advice to waive compliance with this Act or a rule
adopted or order issued under this Act is void.
(m) Survival of other rights or remedies. The rights and remedies provided by this Act are in
addition to any other rights or remedies that may exist, but this Act does not create a cause of
action not specified in this section or Section 411(e).
Section
38.
Section 510.
A purchaser, seller, or recipient of investment advice may not
maintain an action under Section 509 if:
(1) The purchaser, seller, or recipient of investment advice receives in a record, before the
action is instituted:
(A) An offer stating the respect in which liability under Section 509 may have arisen
and fairly advising the purchaser, seller, or recipient of investment advice of that
person's rights in connection with the offer, and any financial or other
information necessary to correct all material misrepresentations or omissions in
the information that was required by this Act to be furnished to that person at the
time of the purchase, sale, or investment advice;
(B) If the basis for relief under this section may have been a violation of Section
509(b), an offer to repurchase the security for cash, payable on delivery of the
security, equal to the consideration paid, and interest at Category D
§
54-3-16
from the date of the purchase, less the amount of any income received on the
security, or, if the purchaser no longer owns the security, an offer to pay the
purchaser upon acceptance of the offer damages in an amount that would be
recoverable upon a tender, less the value of the security when the purchaser
disposed of it, and interest at Category D
§
54-3-16 from the date of the purchase
in cash equal to the damages computed in the manner provided in this subsection;
(C) If the basis for relief under this section may have been a violation of Section
509(c), an offer to tender the security, on payment by the seller of an amount
equal to the purchase price paid, less income received on the security by the
purchaser and interest at Category D
§
54-3-16 from the date of the sale; or if the
purchaser no longer owns the security, an offer to pay the seller upon acceptance
of the offer, in cash, damages in the amount of the difference between the price
at which the security was purchased and the value the security would have had
at the time of the purchase in the absence of the purchaser's conduct that may
have caused liability and interest at Category D
§
54-3-16 from the date of the
sale;
(D) If the basis for relief under this section may have been a violation of Section
509(d); and if the customer is a purchaser, an offer to pay as specified in
subparagraph (B); or, if the customer is a seller, an offer to tender or to pay as
specified in subparagraph (C);
(E) If the basis for relief under this section may have been a violation of Section
509(e), an offer to reimburse in cash the consideration paid for the advice and
interest at Category D
§
54-3-16 from the date of payment; or
(F) If the basis for relief under this section may have been a violation of Section
509(f), an offer to reimburse in cash the consideration paid for the advice, the
amount of any actual damages that may have been caused by the conduct, and
interest at Category D
§
54-3-16 from the date of the violation causing the loss;
(2) The offer under paragraph (1) states that it must be accepted by the purchaser, seller, or
recipient of investment advice within thirty days after the date of its receipt by the
purchaser, seller, or recipient of investment advice or any shorter period, of not less than
three days, that the director, by order, specifies;
(3) The offeror has the present ability to pay the amount offered or to tender the security
under paragraph (1);
(4) The offer under paragraph (1) is delivered to the purchaser, seller, or recipient of
investment advice, or sent in a manner that ensures receipt by the purchaser, seller, or
recipient of investment advice; and
(5) The purchaser, seller, or recipient of investment advice that accepts the offer under
paragraph (1) in a record within the period specified under paragraph (2) is paid in
accordance with the terms of the offer.
Section
39.
Section 601.
(a) Administration. This Act shall be administered by the director.
(b) The director shall designate one of his employees to administer the provisions of this Act
in the event of his absence or disability.
(c) This Act shall be administered under the direction and supervision of the Department of
Revenue and Regulation and the secretary thereof, but shall retain the quasi-judicial, quasi-
legislative, advisory, and other nonadministrative functions, as defined in
§
1-32-1, otherwise
vested in it and shall exercise those functions independently of the secretary of the Department of
Revenue and Regulation.
(d) The director shall be appointed by the secretary of the Department of Revenue and
Regulation and may be removed at the pleasure of the secretary. The appointment and removal of
the director shall be subject to approval by the Governor.
(e) The director shall receive travel expenses, in accordance with the rules of the Board of
Finance, incurred in the discharge of official duties.
(f) The director shall employ, from time to time, such clerks and employees as are necessary
for the administration of this chapter, and they shall perform such duties as the director shall
assign.
(g) The director may be included in the state's employees' blanket bond pursuant to
§
3-5-5.1.
(h) The director shall use the seal with the words, Director of Securities, South Dakota, and
such designs as the director shall prescribe engraved thereon by which seal the director shall
authenticate his signature and proceedings.
(i) Unlawful use of records or information. It is unlawful for the director or an officer,
employee, or designee of the director to use for personal benefit or the benefit of others records or
other information obtained by or filed with the director that are not public under Section 607(b).
This Act does not authorize the director or an officer, employee, or designee of the director to
disclose the record or information, except in accordance with Section 602, 607(c), or 608.
(j) No privilege or exemption created or diminished. This Act does not create or diminish a
privilege or exemption that exists at common law, by statute or rule, or otherwise.
(k) Investor education. The director may develop and implement investor education initiatives
to inform the public about investing in securities, with particular emphasis on the prevention and
detection of securities fraud. In developing and implementing these initiatives, the director may
collaborate with public and nonprofit organizations with an interest in investor education. The
director may accept a grant or donation from a person that is not affiliated with the securities
industry or from a nonprofit organization, regardless of whether the organization is affiliated with
the securities industry, to develop and implement investor education initiatives. This subsection
does not authorize the director to require participation or monetary contributions of a registrant in
an investor education program.
Section
40.
Section 602.
(a) Authority to investigate. The director may:
(1) Conduct public or private investigations within or outside of this state which the
director considers necessary or appropriate to determine whether a person has violated,
is violating, or is about to violate this Act or a rule adopted or order issued under this
Act, or to aid in the enforcement of this Act or in the adoption of rules and forms under
this Act;
(2) Require or permit a person to testify, file a statement, or produce a record, under oath
or otherwise as the director determines, as to all the facts and circumstances concerning
a matter to be investigated or about which an action or proceeding is to be instituted;
and
(3) Publish a record concerning an action, proceeding, or an investigation under, or a
violation of, this Act or a rule adopted or order issued under this Act if the director
determines it is necessary or appropriate in the public interest and for the protection of
investors.
(b) Director powers to investigate. For the purpose of an investigation under this Act, the
director or its designated officer may administer oaths and affirmations, subpoena witnesses, seek
compulsion of attendance, take evidence, require the filing of statements, and require the
production of any records that the director considers relevant or material to the investigation.
(c) Procedure and remedies for noncompliance. If a person does not appear or refuses to testify,
file a statement, produce records, or otherwise does not obey a subpoena as required by the director
under this Act, the director, or any officer designated by him, may apply to the circuit court to
enforce compliance, or may refer the matter to the Attorney General or the proper attorney, who
may apply to the circuit court or a court of another state to enforce compliance. The court may:
(1) Hold the person in contempt;
(2) Order the person to appear before the director;
(3) Order the person to testify about the matter under investigation or in question;
(4) Order the production of records;
(5) Grant injunctive relief, including restricting or prohibiting the offer or sale of securities
or the providing of investment advice;
(6) Impose a civil penalty of not more than ten thousand dollars per violation; and
(7) Grant any other necessary or appropriate relief.
(d) Application for relief. This section does not preclude a person from applying to the circuit
court or a court of another state for relief from a request to appear, testify, file a statement, produce
records, or obey a subpoena.
(e) Use immunity procedure. An individual is not excused from attending, testifying, filing a
statement, producing a record or other evidence, or obeying a subpoena of the director under this
Act or in an action or proceeding instituted by the director under this Act on the ground that the
required testimony, statement, record, or other evidence, directly or indirectly, may tend to
incriminate the individual or subject the individual to a criminal fine, penalty, or forfeiture. If the
individual refuses to testify, file a statement, or produce a record or other evidence on the basis of
the individual's privilege against self-incrimination, the director may apply to the circuit court to
compel the testimony, the filing of the statement, the production of the record, or the giving of
other evidence. The testimony, record, or other evidence compelled under such an order may not
be used, directly or indirectly, against the individual in a criminal case, except in a prosecution for
perjury or contempt or otherwise failing to comply with the order.
(f) Assistance to securities regulator of another jurisdiction. At the request of the securities
regulator of another state or a foreign jurisdiction, the director may provide assistance if the
requesting regulator states that it is conducting an investigation to determine whether a person has
violated, is violating, or is about to violate a law or rule of the other state or foreign jurisdiction
relating to securities matters that the requesting regulator administers or enforces. The director may
provide the assistance by using the authority to investigate and the powers conferred by this section
as the director determines is necessary or appropriate. The assistance may be provided without
regard to whether the conduct described in the request would also constitute a violation of this Act
or other law of this state if occurring in this state. In deciding whether to provide the assistance,
the director may consider whether the requesting regulator is permitted and has agreed to provide
assistance reciprocally within its state or foreign jurisdiction to the director on securities matters
when requested; whether compliance with the request would violate or prejudice the public policy
of this state; and the availability of resources and employees of the director to carry out the request
for assistance.
Section
41.
Section 603.
(a) Civil action instituted by director. If the director believes that a
person has engaged, is engaging, or is about to engage in an act, practice, or course of business
constituting a violation of this Act or a rule adopted or order issued under this Act or that a person
has, is, or is about to engage in an act, practice, or course of business that materially aids a
violation of this Act or a rule adopted or order issued under this Act, the director may maintain an
action in the circuit court to enjoin the act, practice, or course of business and to enforce
compliance with this Act or a rule adopted or order issued under this Act.
(b) Relief available. In an action under this section and on a proper showing, the court may:
(1) Issue a permanent or temporary injunction, restraining order, or declaratory judgment;
(2) Order other appropriate or ancillary relief, which may include:
(A) An asset freeze, accounting, writ of attachment, writ of general or specific
execution, and appointment of a receiver or conservator, that may be the director
for the defendant or the defendant's assets;
(B) Ordering the director to take charge and control of a defendant's property,
including investment accounts and accounts in a depository institution, rents, and
profits; to collect debts; and to acquire and dispose of property;
(C) Imposing a civil penalty up to ten thousand dollars for each violation; an order
of rescission, restitution, or disgorgement directed to a person that has engaged
in an act, practice, or course of business constituting a violation of this Act or the
predecessor act or a rule adopted or order issued under this Act or the
predecessor act; and
(D) Ordering the payment of prejudgment and postjudgment interest; or
(3) Order such other relief as the court considers appropriate.
(c) No bond required. The director may not be required to post a bond in an action or
proceeding under this Act.
Section
42.
Section 604.
(a) Issuance of an order or notice. If the director determines that a
person has engaged, is engaging, or is about to engage in an act, practice, or course of business
constituting a violation of this Act or a rule adopted or order issued under this Act or that a person
has materially aided, is materially aiding, or is about to materially aid an act, practice, or course
of business constituting a violation of this Act or a rule adopted or order issued under this Act, the
director may:
(1) Issue an order directing the person to cease and desist from engaging in the act, practice,
or course of business or to take other action necessary or appropriate to comply with this
Act;
(2) Issue an order denying, suspending, revoking, or conditioning the exemptions for a
broker-dealer under Section 401(b)(1)(D) or (F) or an investment adviser under Section
403(b)(1)(C); or
(3) Issue an order under Section 204.
(b) Summary process. An order under subsection (a) is effective on the date of issuance. Upon
issuance of the order, the director shall promptly serve each person subject to the order with a copy
of the order and a notice that the order has been entered. The order must include a statement
whether the director will seek a civil penalty or costs of the investigation, a statement of the
reasons for the order, and notice that, within fifteen days after receipt of a request in a record from
the person, the matter will be scheduled for a hearing. If a person subject to the order does not
request a hearing and none is ordered by the director within thirty days after the date of service of
the order, the order, which may include a civil penalty or costs of the investigation if a civil penalty
or costs were sought in the statement accompanying the order, becomes final as to that person by
operation of law. If a hearing is requested or ordered, the director, after notice of and opportunity
for hearing to each person subject to the order, may modify or vacate the order or extend it until
final determination.
(c) Procedure for final order. If a hearing is requested or ordered pursuant to subsection (b), a
hearing must be held pursuant to chapter 1-26. A final order may not be issued unless the director
makes findings of fact and conclusions of law in a record pursuant to chapter 1-26. The final order
may make final, vacate, or modify the order issued under subsection (a).
(d) Civil penalty. In a final order under subsection (c), the director may impose a civil penalty
up to ten thousand dollars for each violation.
(e) Costs. In a final order, the director may charge the actual cost of an investigation or
proceeding for a violation of this Act or a rule adopted or order issued under this Act.
(f) Filing of certified final order with court; effect of filing. If a petition for judicial review of
a final order is not filed in accordance with Section 609, the director may file a certified copy of
the final order with the clerk of a court of competent jurisdiction. The order so filed has the same
effect as a judgment of the court and may be recorded, enforced, or satisfied in the same manner
as a judgment of the court.
(g) Enforcement by court; further civil penalty. If a person does not comply with an order under
this section, the director may petition a court of competent jurisdiction to enforce the order. The
court may not require the director to post a bond in an action or proceeding under this section. If
the court finds, after service and opportunity for hearing, that the person was not in compliance
with the order, the court may adjudge the person in civil contempt of the order. The court may
impose a further civil penalty against the person for contempt in an amount not more than ten
thousand dollars, for each violation and may grant any other relief the court determines is just and
proper in the circumstances.
Section
43.
Section 605.
(a) Issuance and adoption of forms, orders, and rules. The director
may:
(1) Issue forms and orders and, after notice and comment, may adopt and amend rules
necessary or appropriate to carry out this Act and may repeal rules, including rules and
forms governing registration statements, applications, notice filings, reports, and other
records;
(2) By rule, define terms, whether or not used in this Act, but those definitions may not be
inconsistent with this Act; and
(3) By rule, classify securities, persons, and transactions and adopt different requirements
for different classes.
(b) Findings and cooperation. Under this Act, a rule or form may not be adopted or amended,
or an order issued or amended, unless the director finds that the rule, form, order, or amendment
is necessary or appropriate in the public interest or for the protection of investors and is consistent
with the purposes intended by this Act. In adopting, amending, and repealing rules and forms,
Section 608 applies in order to achieve uniformity among the states and coordination with federal
laws in the form and content of registration statements, applications, reports, and other records,
including the adoption of uniform rules, forms, and procedures.
(c) Financial statements. Subject to Section 15(h) of the Securities Exchange Act and Section
222 of the Investment Advisers Act of 1940, the director may require that a financial statement
filed under this Act be prepared in accordance with generally accepted accounting principles in the
United States and comply with other requirements specified by rule adopted or order issued under
this Act. A rule adopted or order issued under this Act may establish:
(1) Subject to Section 15(h) of the Securities Exchange Act and Section 222 of the
Investment Advisors Act of 1940, the form and content of financial statements required
under this Act;
(2) Whether unconsolidated financial statements must be filed; and
(3) Whether required financial statements must be audited by an independent certified
public accountant.
(d) Interpretative opinions. The director may provide interpretative opinions or issue
determinations that the director will not institute a proceeding or an action under this Act against
a specified person for engaging in a specified act, practice, or course of business if the
determination is consistent with this Act. A fifty dollar fee is required for interpretative opinions
and no action letters.
(e) Effect of compliance. A penalty under this Act may not be imposed for, and liability does
not arise from conduct that is engaged in or omitted in good faith believing it conforms to a rule,
form, or order of the director under this Act.
(f) Presumption for public hearings. A hearing in an administrative proceeding under this Act must
be conducted in public unless the director for good cause consistent with this Act determines that
the hearing will not be so conducted.
Section
44.
Section 606.
(a) Public register of filings. The director shall maintain, or designate
a person to maintain, a register of applications for registration of securities; registration statements;
notice filings; applications for registration of broker-dealers, agents, investment advisers, and
investment adviser representatives; notice filings by federal covered investment advisers that are
or have been effective under this Act or the predecessor act; notices of claims of exemption from
registration or notice filing requirements contained in a record; orders issued under this Act or the
predecessor act; and interpretative opinions or no action determinations issued under this Act.
(b) Public availability. The director shall make all rules, forms, interpretative opinions, and
orders available to the public.
(c) Copies of public records. The director shall furnish a copy of a record that is a public record
or a certification that the public record does not exist to a person that so requests. A rule adopted
under this Act may establish a reasonable charge for furnishing the record or certification. A copy
of the record certified or a certificate by the director of a record's nonexistence is prima facie
evidence of a record or its nonexistence.
Section
45.
Section 607.
(a) Presumption of public records. Except as otherwise provided in
subsection (b), records obtained by the director or filed under this Act, including a record contained
in or filed with a registration statement, application, notice filing, or report, are public records and
are available for public examination.
(b) Nonpublic records. The following records are not public records and are not available for
public examination under subsection (a):
(1) A record obtained by the director in connection with an audit or inspection under
Section 411(d) or an investigation under Section 602;
(2) A part of a record filed in connection with a registration statement under Sections 301
and 303 through 305 or a record under Section 411(d) that contains trade secrets or
confidential information if the person filing the registration statement or report has
asserted a claim of confidentiality or privilege that is authorized by law;
(3) A record that is not required to be provided to the director or filed under this Act and
is provided to the director only on the condition that the record will not be subject to
public examination or disclosure;
(4) A nonpublic record received from a person specified in Section 608(a); and
(5) Any social security number, residential address unless used as a business address, and
residential telephone number unless used as a business telephone number, contained in
a record that is filed; and
(6) A record obtained by the director through a designee of the director or that a rule or
order under this Act determines has been:
(A) Expunged from the director's records by the designee; or
(B) Determined to be nonpublic or nondisclosable by that designee if the director
finds the determination to be in the public interest and for the protection of
investors.
(c) Director discretion to disclose. If disclosure is for the purpose of a civil, administrative, or
criminal investigation, action, or proceeding or to a person specified in Section 608(a), the director
may disclose a record obtained in connection with an audit or inspection under Section 411(d) or
a record obtained in connection with an investigation under Section 602.
Section
46.
Section 608.
(a) Objective of uniformity. The director shall, in its discretion,
cooperate, coordinate, consult, and, subject to Section 607, share records and information with the
securities regulator of another state, Canada, a Canadian province or territory, a foreign
jurisdiction, the Securities and Exchange Commission, the United States Department of Justice,
the Commodity Futures Trading Commission, the Federal Trade Commission, the Securities
Investor Protection Corporation, a self-regulatory organization, a national or international
organization of securities regulators, a federal or state banking and insurance regulator, and a
governmental law enforcement agency to effectuate greater uniformity in securities matters among
the federal government, self-regulatory organizations, states, and foreign governments.
(b) Policies to consider. In cooperating, coordinating, consulting, and sharing records and
information under this section and in acting by rule, order, or waiver under this Act, the director
shall, in its discretion, take into consideration in carrying out the public interest the following
general policies:
(1) Maximizing effectiveness of regulation for the protection of investors;
(2) Maximizing uniformity in federal and state regulatory standards; and
(3) Minimizing burdens on the business of capital formation, without adversely affecting
essentials of investor protection.
(c) Subjects for cooperation. The cooperation, coordination, consultation, and sharing of
records and information authorized by this section includes:
(1) Establishing or employing one or more designees as a central depository for registration
and notice filings under this Act and for records required or allowed to be maintained
under this Act;
(2) Developing and maintaining uniform forms;
(3) Conducting a joint examination or investigation;
(4) Holding a joint administrative hearing;
(5) Instituting and prosecuting a joint civil or administrative proceeding;
(6) Sharing and exchanging personnel;
(7) Coordinating registrations under Sections 301 and 401 through 404 and exemptions
under Section 203;
(8) Sharing and exchanging records, subject to Section 607;
(9) Formulating rules, statements of policy, guidelines, forms, and interpretative opinions
and releases;
(10) Formulating common systems and procedures;
(11) Notifying the public of proposed rules, forms, statements of policy, and guidelines;
(12) Attending conferences and other meetings among securities regulators, which may
include representatives of governmental and private sector organizations involved in
capital formation, deemed necessary or appropriate to promote or achieve uniformity;
and
(13) Developing and maintaining a uniform exemption from registration for small issuers,
and taking other steps to reduce the burden of raising investment capital by small
businesses.
Section
47.
Section 609.
(a) Judicial review of orders. A final order issued by the director under
this Act is subject to judicial review in accordance with chapter 1-26.
(b) Judicial review of rules. A rule adopted under this Act is subject to judicial review in
accordance with chapter 1-26.
Section
48.
Section 610.
(a) Sales and offers to sell. Sections 301, 302, 401(a), 402(a), 403(a),
404(a), 501, 506, 509, and 510 do not apply to a person that sells or offers to sell a security unless
the offer to sell or the sale is made in this state or the offer to purchase or the purchase is made and
accepted in this state.
(b) Purchases and offers to purchase. Sections 401(a), 402(a), 403(a), 404(a), 501, 506, 509,
and 510 do not apply to a person that purchases or offers to purchase a security unless the offer to
purchase or the purchase is made in this state or the offer to sell or the sale is made and accepted
in this state.
(c) Offers in this state. For the purpose of this section, an offer to sell or to purchase a security
is made in this State, whether or not either party is then present in this state, if the offer:
(1) Originates from within this state; or
(2) Is directed by the offeror to a place in this state and received at the place to which it is
directed.
(d) Acceptances in this state. For the purpose of this section, an offer to purchase or to sell is
accepted in this state, whether or not either party is then present in this state, if the acceptance:
(1) Is communicated to the offeror in this state and the offeree reasonably believes the
offeror to be present in this state and the acceptance is received at the place in this state
to which it is directed; and
(2) Has not previously been communicated to the offeror, orally or in a record, outside this
state.
(e) Publications, radio, television, or electronic communications. An offer to sell or to purchase
is not made in this state when a publisher circulates or there is circulated on the publisher's behalf
in this state a bona fide newspaper or other publication of general, regular, and paid circulation that
is not published in this state, or that is published in this state but has had more than two thirds of
its circulation outside this state during the previous twelve months or when a radio or television
program or other electronic communication originating outside this state is received in this state.
A radio or television program, or other electronic communication is considered as having
originated in this state if either the broadcast studio or the originating source of transmission is
located in this state, unless:
(1) The program or communication is syndicated and distributed from outside this state for
redistribution to the general public in this state;
(2) The program or communication is supplied by a radio, television, or other electronic
network with the electronic signal originating from outside this state for redistribution
to the general public in this state;
(3) The program or communication is an electronic communication that originates outside
this state and is captured for redistribution to the general public in this state by a
community antenna or cable, radio, cable television, or other electronic system; or
(4) The program or communication consists of an electronic communication that originates
in this state, but which is not intended for distribution to the general public in this state.
(f) Investment advice and misrepresentations. Sections 403(a), 404(a), 405(a), 502, 505, and
506 apply to a person if the person engages in an act, practice, or course of business instrumental
in effecting prohibited or actionable conduct in this state, whether or not either party is then present
in this state.
Section
49.
Section 611.
(a) Signed consent to service of process. A consent to service of
process complying with Section 611 required by this Act must be signed and filed in the form
required by a rule or order under this Act. A consent appointing the director the person's agent for
service of process in a noncriminal action or proceeding against the person, or the person's
successor or personal representative under this Act or a rule adopted or order issued under this Act
after the consent is filed, has the same force and validity as if the service were made personally on
the person filing the consent. A person that has filed a consent complying with this subsection in
connection with a previous application for registration or notice filing need not file an additional
consent.
(b) Conduct constituting appointment of agent for service. If a person, including a nonresident
of this state, engages in an act, practice, or course of business prohibited or made actionable by this
Act or a rule adopted or order issued under this Act and the person has not filed a consent to
service of process under subsection (a), the act, practice, or course of business constitutes the
appointment of the director as the person's agent for service of process in a noncriminal action or
proceeding against the person or the person's successor or personal representative.
(c) Procedure for service of process. Service under subsection (a) or (b) may be made by
providing a copy of the process to the office of the director, but it is not effective unless:
(1) The plaintiff, which may be the director, promptly sends notice of the service and a copy
of the process, return receipt requested, to the defendant or respondent at the address set
forth in the consent to service of process or, if a consent to service of process has not
been filed, at the last known address, or takes other reasonable steps to give notice; and
(2) The plaintiff files an affidavit of compliance with this subsection in the action or
proceeding on or before the return day of the process, if any, or within the time that the
court, or the director in a proceeding before the director, allows.
(d) Service in administrative proceedings or civil actions by director. Service pursuant to
subsection (c) may be used in a proceeding before the director or by the director in a civil action
in which the director is the moving party.
(e) Opportunity to defend. If process is served under subsection (c), the court, or the director
in a proceeding before the director, shall order continuances as are necessary or appropriate to
afford the defendant or respondent reasonable opportunity to defend.
Section
50.
Section 612.
If any provision of this Act or its application to any person or
circumstances is held invalid, the invalidity does not affect other provisions or applications of this
Act that can be given effect without the invalid provision or application, and to this end the
provisions of this Act are severable.
Section
51.
Section 701.
This Act, takes effect on July 1, 2004.
Section
52.
Section 702. That
§
§
47-31A-101 to 47-31A-420, inclusive, be repealed.
Section
53.
Section 703.
(a) Applicability of predecessor act to pending proceedings and
existing rights. The predecessor act exclusively governs all actions or proceedings that are pending
on the effective date of this Act or may be instituted on the basis of conduct occurring before the
effective date of this Act, but a civil action may not be maintained to enforce any liability under
the predecessor act unless instituted within any period of limitation that applied when the cause
of action accrued or within five years after the effective date of this Act, whichever is earlier.
(b) Continued effectiveness under predecessor act. All effective registrations under the
predecessor act, all administrative orders relating to the registrations, rules, statements of policy,
interpretative opinions, declaratory rulings, no action determinations, and conditions imposed on
the registrations under the predecessor act remain in effect while they would have remained in
effect if this Act had not been enacted. They are considered to have been filed, issued, or imposed
under this Act, but are exclusively governed by the predecessor act.
(c) Applicability of predecessor act to offers or sales. The predecessor act exclusively applies
to an offer or sale made within one year after the effective date of this Act pursuant to an offering
made in good faith before the effective date of this Act on the basis of an exemption available
under the predecessor act.
Section
54.
That
§
1-16A-59
be amended to read as follows:
1-16A-59.
For purposes of chapter
47-31A and any amendment thereto and substitution
therefor
47-31B
, bonds issued by the authority
shall be
are
deemed to be securities issued by a
public instrumentality of the State of South Dakota.
Section
55.
That
§
4-4-4.3
be amended to read as follows:
4-4-4.3.
There
shall be
is
established within the state treasury the securities operating fund and
the insurance operating fund, into which shall be deposited all fees received by each division. All
moneys in the funds created by this section shall be budgeted and expended in accordance with the
provisions of Title 4 on warrants drawn by the state auditor on vouchers approved by the secretary
of the Department of Revenue and Regulation. Expenditures from these funds may be made only
to pay the necessary expenses of purposes specified in chapters 37-5A, 37-25A,
47-31A
47-31B
,
47-33, and Title 58.
Section
56.
That
§
5-12-55
be amended to read as follows:
5-12-55.
The corporation is hereby declared to be performing a public function on behalf of
the state and to be a public instrumentality of the state. The income of the authority and the
corporation, and all properties at any time owned by the authority and the corporation, are exempt
from all taxation in the State of South Dakota. In addition, the corporation is exempt from all
filing, reporting, and similar requirements otherwise applicable to nonprofit and other corporations.
For purposes of chapter
47-31A and any amendment thereto and substitution therefor
47-31B
,
bonds, notes, certificates, or other obligations issued, incurred or created by the corporation under
§
§
5-12-48 to 5-12-60, inclusive,
shall be
are
deemed to be securities issued by a public
instrumentality of the State of South Dakota.
Section
57.
That
§
6-8B-69
be amended to read as follows:
6-8B-69.
Any credit enhancement obligation, any agreement or other arrangement related
thereto, and any anticipation note authorized hereunder shall be exempt from registration under
chapter
47-31A
47-31B
.
Section
58.
That subdivision (4) of
§
10-43-1
be amended to read as follows:
(4)
"Financial institution," any banking institution or savings and loan association organized
under the laws of the United States and located or doing business in this state; any bank,
savings and loan association, mutual saving bank, or trust company, organized under
the laws of this state or of any other state, district, territory, or country, doing business
within this state; any person licensed in this state pursuant to chapter 54-4, the
installment repayment small loan and consumer finance law; and any person in the
business of buying loans, notes, or other evidences of debt except those persons
registered as broker-dealers pursuant to chapter
47-31A
47-31B
; and persons in the
business of making installment repayment and open-end loans which may be unsecured
or secured by real or personal property, which loans are in an aggregate amount
exceeding five hundred dollars, which are repaid in two or more installment payments
or one lump sum payment extending over a time exceeding thirty days from the day the
loan was made except where the loan is made by the person selling the property,
incidental to the sale of the property and where the seller is primarily in the business of
selling such real or personal property or except where the loan is made to a related
corporation and the primary business of these related corporations is the production and
sale of tangible personal property or where the loan is made in the form of an advance
to secure the production of equipment to be obtained by the lender or to finance a joint
venture between the lender and others which has been formed to produce and sell
tangible personal property;
Section
59.
That
§
11-11-96
be amended to read as follows:
11-11-96.
For the purposes of chapter
47-31A and any amendments thereto and substitution
therefor
47-31B
, bonds issued by the authority
shall be
are
deemed to be securities issued by a
public instrumentality of the State of South Dakota.
Section
60.
That
§
25-7A-56
be amended to read as follows:
25-7A-56.
A state agency or board may not issue or renew the professional, sporting, or
recreational license, registration, certification, or permit of any applicant after receiving notice
from the Department of Social Services that the applicant has support arrearages in the sum of one
thousand dollars or more, unless the applicant first makes satisfactory arrangements with the
Department of Social Services for payment of any accumulated arrearages. An applicant who
disputes a determination by the Department of Social Services that the applicant has support
arrearages of one thousand dollars or more shall, upon request, be given a due process hearing by
the department. Upon recommendation by the department, the licensing agency or board may issue
a temporary license, registration, certification, or permit to the applicant pending final resolution
of the due process hearing. The department may promulgate rules pursuant to chapter 1-26 to
implement the provisions of this section.
The term professional license, registration, certification, or permit as specified by this section
includes appraisers as specified in chapter 36-21B; abstractors as specified in chapter 36-13;
accountants as specified in chapter 36-20A; barbers as specified in chapter 36-14; chiropractors
as specified in chapter 36-5; cosmetologists as specified in chapter 36-15; counselors as specified
in chapter 36-32; dentists and dental hygienists as specified in chapter 36-6A; electricians as
specified in chapter 36-16; engineers, architects, and surveyors as specified in chapter 36-18;
embalmers and funeral directors as specified in chapter 36-19; nurses as specified in chapter 36-9;
nurse practitioners and nurse mid-wives as specified in chapter 36-9A; physical therapists as
specified in chapter 36-10; medical assistants as specified in chapter 36-9B; hearing aid dispensers
as specified in chapter 36-24; physicians and surgeons as specified in chapter 36-4; physician's
assistants as specified in chapter 36-4A; advanced life support personnel as specified in chapter
36-4B; nursing facility administrators as specified in chapter 36-28; optometrists as specified in
chapter 36-7; pharmacists as specified in chapter 36-11; plumbers as specified in chapter 36-25;
podiatrists as specified in chapter 36-8; psychologists as specified in chapter 36-27A; real estate
brokers and salesmen as specified in chapter 36-21A; social workers as specified in chapter 36-26;
veterinarians as specified in chapter 36-12; insurance brokers, agents, and solicitors as specified
in chapter 58-30; teachers and administrators as specified in chapters 13-42 and 13-43; attorneys
as specified in chapter 16-16; securities agents, securities brokers, investment advisers, or
investment adviser representatives as specified in chapter
47-31A
47-31B
; pilots as specified in
chapter 50-11; day care providers as specified in chapter 26-6; gaming employees as specified in
chapter 42-7B; and law enforcement officers as specified in chapter 23-3. The state agencies or
boards which govern the professions, recreational licenses, and occupations listed in this paragraph
may adopt rules pursuant to chapter 1-26 to implement the provisions of this section for their
particular profession or occupation.
Section
61.
That
§
25-7A-56.9
be amended to read as follows:
25-7A-56.9.
The department shall enter into agreements with any financial institution
conducting business within the state whereby the financial institution shall, on a quarterly basis,
provide to the department the name, record address, social security number, or other taxpayer
identification number, and other identifying information requested by the department for each
obligor who owes past-due child support, and who maintains an account at the financial institution.
Every financial institution shall also comply with any lien, levy, or order for withholding of income
issued by the department against any account.
A financial institution is not liable to any person or entity for release or disclosure of any
information required herein, and is not liable for encumbering or surrendering to the department
any assets held by the financial institution and owned by the obligor. A financial institution is not
liable to any person or entity for any other action taken in good faith by the institution to comply
with the requirements of this section. Any information obtained by any Title IV-D agency pursuant
to this section is confidential in nature and may be disclosed only for the purpose of, and to the
extent necessary in, establishing, modifying, or enforcing a child support obligation.
As used in this section, financial institution includes any financial institution as defined in
subdivision 10-43-1(4), any institution regulated by chapter
47-31A
47-31B
, and any other
depository institution, credit union, benefit association, insurance company, safe deposit company,
bond fund, money market mutual fund, and any mutual fund of any kind or character. The term,
account, as used in this section includes any demand deposit account, checking account, negotiable
withdrawal order account, savings account, time deposit account, money market or any type of
mutual fund account, and intangible property as defined in subdivision 43-41B-1(10).
Section
62.
That
§
37-5A-14
be amended to read as follows:
37-5A-14.
The registration requirement imposed by
§
37-5A-6
shall
do
not apply to the
following:
(1)
Any transaction by an executor, administrator, sheriff, receiver, trustee in bankruptcy,
guardian or conservator;
(2)
Any offer or sale to a banking organization, financial organization or life insurance
corporation within the meanings given these terms by chapters 51A-1, 52-1, and 58-1;
or
(3)
Securities currently registered in this state pursuant to chapter
47-31A
47-31B
.
Section
63.
That subdivision (4) of
§
37-25A-2
be amended to read as follows:
(4)
Any offer or sale of a business opportunity registered pursuant to chapter
47-31A
47-
31B
;
Section
64.
That subdivision (4) of
§
37-25A-3
be amended to read as follows:
(4)
Any offer or sale of a business opportunity if the purchaser is a bank, savings and loan
association, trust company, insurance company, credit union, or investment company
as defined by the Investment Company Act of 1940, pension or profit sharing trust, or
other financial institution or institutional buyer or a dealer registered pursuant to chapter
47-31A
47-31B
, if the purchaser is acting for itself or in a fiduciary capacity;
Section
65.
That
§
47-21-77
be amended to read as follows:
47-21-77.
The provisions of
the Uniform Securities Act, chapter 47-31A, shall
chapter 47-31B
do
not apply to any note, bond or other evidence of indebtedness issued by any cooperative
pursuant to this chapter to the United States of America or any agency or other instrumentality
thereof, to any member of such cooperative, or to any mortgage, deed of trust, or other instrument
executed to secure the same.
The Uniform Securities Act
Chapter 47-31B
does not apply to the
issuance of membership certificates or any other evidence of member interest by any cooperative
or any such foreign corporation.
Section
66.
That
§
58-28-31
be amended to read as follows:
58-28-31.
The director
shall have
has
sole authority to regulate the issuance and sale of variable
contracts and promulgate rules to carry out the purposes and provisions of this chapter. The
Division of Securities may, upon request by the director, review the underlying investments in
securities of variable contracts. The Division of Securities may require filing a disclosure
document with the division of securities pursuant to chapter
47-31A
47-31B
.
Section
67.
That
§
58-33-90
be amended to read as follows:
58-33-90.
No insurance producer may offer or sell any security in this state unless the insurance
producer is properly registered or exempt from registration pursuant to chapter
47-31A
47-31B
.
Section
68.
That
§
58-33-91
be amended to read as follows:
58-33-91.
No insurance producer may offer or sell any security in this state unless the security
is registered or exempt from registration pursuant to chapter
47-31A
47-31B
.
Signed February 25, 2004.