§485A-102 Definitions.
As used in this chapter, unless the context otherwise requires:
"Agent" means 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. 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 falls within this definition. The definition
shall not include an individual excluded by rule adopted or order issued under
this chapter.
"Bank" means:
(1) A banking institution organized under the laws of
the United States;
(2) A member bank of the Federal Reserve System;
(3) 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. 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 chapter; or
(4) A receiver, conservator, or other liquidating
agent of any institution or firm included in paragraph (1), (2), or (3).
"Broker-dealer" means a person
engaged in the business of effecting transactions in securities for the
accounts of others or for the person's own account. The term shall not
include:
(1) An agent;
(2) An issuer;
(3) A depository institution;
(4) Any person licensed as a real estate broker or
real estate salesperson under the laws of this State while effecting
transactions in a security exempted by sections [485A-202(a)(24)] and [485A-202(a)(25)];
(5) An international banking institution; or
(6) A person excluded by rule adopted or order issued
under this chapter.
"Commissioner" means the commissioner
of securities of this State.
"Depository institution" means:
(1) A bank; or
(2) 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
shall not include:
(A) An insurance company or other organization
primarily engaged in the business of insurance;
(B) A Morris Plan bank; or
(C) An industrial loan company.
"Director" means the director of
commerce and consumer affairs.
"Federal covered investment adviser"
means a person registered under the Investment Advisers Act of 1940.
"Federal covered security" means 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. 77r(b)),
or rules or regulations adopted pursuant to that provision.
"Filing" means the receipt of a
record required under this chapter by the commissioner or a designee of the
commissioner.
"Fraud", "deceit", and
"defraud" are not limited to common law deceit.
"Guaranteed" means guaranteed as to
payment of all principal and all interest.
"Institutional investor" means any of
the following, whether acting for itself or for others in a fiduciary capacity:
(1) A depository institution or international banking
institution;
(2) An insurance company;
(3) A separate account of an insurance company;
(4) An investment company as defined in the
Investment Company Act of 1940;
(5) A broker-dealer registered under the Securities
Exchange Act of 1934;
(6) An employee pension, profit-sharing, or benefit
plan if the plan has total assets in excess of $10,000,000 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 chapter, a depository institution, or an
insurance company;
(7) 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 $10,000,000 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 chapter, a depository
institution, or an insurance company;
(8) A trust, if it has total assets in excess of
$10,000,000, its trustee is a depository institution, and its participants are
exclusively plans of the types identified in paragraph (6) or (7), regardless
of the size of their assets, except a trust that includes as participants
self-directed individual retirement accounts or similar self-directed plans;
(9) An organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 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 $10,000,000;
(10) 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. 681(c)) with total assets in excess of $10,000,000;
(11) A private business development company as defined
in section 202(a)(22) of the Investment Advisers Act of 1940 (15 U.S.C.
80b-2(a)(22)) with total assets in excess of $10,000,000;
(12) A federal covered investment adviser acting for
its own account;
(13) 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);
(14) A "major U.S. 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);
(15) Any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000, not
organized for the specific purpose of evading this chapter; or
(16) Any other person specified by rule adopted or
order issued under this chapter.
"Insurance company" means 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.
"Insured" means insured as to payment
of all principal and all interest.
"International banking institution"
means 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.
"Investment adviser" means 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 shall not include:
(1) An investment adviser representative;
(2) A lawyer, accountant, engineer, or teacher whose
performance of investment advice is solely incidental to the practice of the
person's profession;
(3) 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;
(4) A publisher of a bona fide newspaper, news
magazine, or business or financial publication of general and regular
circulation;
(5) A federal covered investment adviser;
(6) A bank or savings institution;
(7) Any other person that is excluded by the
Investment Advisers Act of 1940 from the definition of investment adviser; or
(8) Any other person excluded by rule adopted or
order issued under this chapter.
"Investment adviser representative"
means 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 oneself 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 shall not include an individual
who:
(1) Performs only clerical or ministerial acts;
(2) 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;
(3) 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. 80b-3a) and is:
(A) 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. 80b-3a); or
(B) 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. 80b-2(a)(25)); or
(4) Is excluded by rule adopted or order issued under
this chapter.
"Issuer" means a person that issues
or proposes to issue a security, subject to the following:
(1) 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
a depositor or manager pursuant to the trust or other agreement or instrument
under which the security is issued;
(2) 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; and
(3) 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.
"Nonissuer transaction" or
"nonissuer distribution" means a transaction or distribution not
directly for the benefit of the issuer.
"Offer to purchase" includes an
attempt or offer to obtain, or solicitation of an offer to sell, a security or
interest in a security for value. The term shall 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)).
"Person" means 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.
"Place of business" of a
broker-dealer, an investment adviser, or a federal covered investment adviser
means:
(1) 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
(2) 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.
"Predecessor act" means chapter 485,
Hawaii Revised Statutes.
"Price amendment" means 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.
"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.
"Record" except in the phrases
"of record", "official record", and "public
record", means information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retrievable in perceivable
form.
"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:
(1) 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;
(2) A gift of assessable stock involving an offer and
sale; and
(3) 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.
"Securities and Exchange Commission"
means the United States Securities and Exchange Commission.
"Security" means 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; variable annuity 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; 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:
(1) Includes both a certificated and an
uncertificated security;
(2) 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;
(3) Does not include an interest in a contributory or
noncontributory pension or welfare plan subject to the Employee Retirement
Income Security Act of 1974;
(4) Includes any contractual or quasi-contractual
arrangement pursuant to which:
(A) A person furnishes value, other than
services, to an offeror;
(B) A portion of that value is subjected to
the risk of the offeror's enterprise;
(C) The furnishing of that value is induced by
the representations of an offeror which give rise to a reasonable understanding
that a valuable benefit will accrue to the offeree as a result of the operation
of the enterprise; and
(D) The offeree does not receive the right to
exercise practical and actual control over the management of the enterprise in
a meaningful way; and
(5) 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.
"Self-regulatory organization" means
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 Rulemaking Board
established under the Securities Exchange Act of 1934.
"Sign" means, with present intent to
authenticate or adopt a record:
(1) To execute or adopt a tangible symbol; or
(2) To attach or logically associate with the record
an electronic symbol, sound, or process.
"State" means 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. [L 2006, c 229, pt of §1; am L 2013, c 165, §1]