Missouri Revised Statutes
Chapter 409
Regulation of Securities
←409.01-101
Section 409.1-102.1
409.01-103→
August 28, 2015
Definitions.
409.1-102. In this act, unless the context otherwise requires:
(1) "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. 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.
(2) "Commissioner" means the commissioner of securities appointed by the
secretary of state.
(3) "Bank" means:
(A) A banking institution organized under the laws of the United States;
(B) A member bank of the Federal Reserve System;
(C) Any other banking institution, whether incorporated or not, 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" means 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, a trust company organized or chartered under the laws of
this state, or a savings institution, if its activities as a broker-dealer are
limited to those specified in subsections 3(a)(4)(B)(i) to (vi), (viii) to
(x), and (xi) if limited to unsolicited transactions; 3(a)(5)(B); and
3(a)(5)(C) of the Securities Exchange Act of 1934 (15 U.S.C. Sections
78c(a)(4) and (5)) or a bank that satisfies the conditions described in
subsection 3(a)(4)(E) of the Securities Exchange Act of 1934 (15 U.S.C.
Section 78c(a)(4));
(D) An international banking institution; or
(E) A person excluded by rule adopted or order issued under this act.
(5) "Depository institution" means:
(A) A bank; or
(B) A savings institution, trust company, credit union, or 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" means a person registered under
the Investment Advisers Act of 1940.
(7) "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. Section 77r(b)) or rules or regulations
adopted pursuant to that provision.
(8) "Filing" means the receipt under this act of a record by the
commissioner or a designee of the commissioner.
(9) "Fraud", "deceit", and "defraud" are not limited to common law
deceit.
(10) "Guaranteed" means guaranteed as to payment of all principal and
all interest.
(11) "Institutional investor" means any of the following, whether acting
for itself or for others in a fiduciary capacity:
(A) A depository institution, a trust company organized or chartered
under the laws of this state, or an international banking institution;
(B) An insurance company;
(C) A separate account of an insurance company;
(D) An investment company as defined in the Investment Company Act 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)(H), adopted under the Securities Act of 1933 (17
C.F.R. 230.144A);
(N) 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);
(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" 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.
(13) "Insured" means insured as to payment of all principal and all
interest.
(14) "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.
(15) "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 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, a trust company organized or chartered under the laws of
this state, or a 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" 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 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" means 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" means a
transaction or distribution not directly or indirectly for the benefit of the
issuer.
(19) "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 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" 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.
(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" means sections 409.101, 409.102 and 409.201 to
409.421, as repealed by this act.
(23) "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.
(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", 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.
(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" means the United States
Securities and Exchange Commission.
(28) "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; 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 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) May include 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" 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.
(30) "Sign" means, 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" 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. 2003 H.B. 380)
Effective 9-01-03
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