502.102 - DEFINITIONS.

        502.102  DEFINITIONS.         In this chapter, unless the context otherwise requires:         1.  "Administrator" means the commissioner of insurance or the      deputy appointed pursuant to section 502.601.         2.  "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 chapter.         2A.  "Agricultural cooperative association" means an entity      which is structured and operated on a cooperative basis pursuant to      26 U.S.C. § 1381(a) and which meets the definitional requirement of      an association as provided in 12 U.S.C. § 1141j(c) or 7 U.S.C. § 291,      if the association is organized as any one of the following:         a.  A farmers cooperative association as defined in section      10.1.         b.  An association of persons organized pursuant to chapter      497 for purposes of conducting an agricultural or dairy business on a      cooperative plan, as described in section 497.1.         c.  A cooperative association organized pursuant to chapter      498 for purposes of conducting an agricultural, livestock,      horticultural, or dairy business on a cooperative plan and acting as      a cooperative selling agency, as described in section 498.2.         d.  An agricultural association as defined in section 499.2      and organized pursuant to chapter 499.         e.  A cooperative organized under chapter 501 which may      acquire or otherwise obtain or lease agricultural land in this state      as provided in section 501.103.         f.  Any other entity which is organized on a cooperative basis      under the laws of this state for the purpose of engaging in the      activities of an agricultural association as defined in section      499.2.         3.  "Bank" means any of the following:         a.  A banking institution organized under the laws of the      United States.         b.  A member bank of the United States 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 office of the comptroller of the currency of the United States      pursuant to Pub. L. No. 87-722, § 1, 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.         d.  A receiver, conservator, or other liquidating agent of any      institution or firm included in paragraph "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 any of the      following:         a.  An agent.         b.  An issuer.         c.  A bank or savings institution if its activities as a      broker-dealer are limited to those specified in section 3(a)(4)(B)(i)      through (vi), section 3(a)(4)(B)(vii) if the offer and sale of      private securities offerings are limited to nonconsumer transactions      that are not primarily for personal, family, or household purposes,      section 3(a)(4)(B)(viii) through (x), or section 3(a)(4)(B)(xi) if      limited to unsolicited transactions all as provided in the Securities      Exchange Act of 1934, 15 U.S.C. § 78c(a)(4); in section 3(a)(5)(B),      and 3(a)(5)(C) of the Securities Exchange Act of 1934, 15 U.S.C. §      78c(a)(4) and (5); or a bank that satisfies the conditions described      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.         e.  A person excluded by rule adopted or order issued under      this chapter.         5.  "Depository institution" means any of the following:         a.  A bank.         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 any      of the following:         (1)  An insurance company or other organization primarily engaged      in the business of insurance.         (2)  A Morris plan bank.         (3)  An industrial loan company that is not an "insured      depository institution" as defined in section 3(c)(2) of the      Federal Deposit Insurance Act, 12 U.S.C. § 1813(c)(2), or any      successor federal statute.         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. § 77r(b), or      rules or regulations adopted pursuant to that provision.         8.  "Filing" means the receipt under this chapter of a record      by the administrator or a designee of the administrator.         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 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 five 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 chapter, 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 five 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 chapter, a depository      institution, or an insurance company.         h.  A trust, if it has total assets in excess of five million      dollars, its trustee is a depository institution, and its      participants are exclusively plans of the types identified in      paragraph "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. § 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 five      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. § 681(c), with total assets in      excess of five 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.      § 80b-2(a)(22), with total assets in excess of five 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 by the      securities and exchange commission 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 by the securities and exchange commission      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 five million      dollars not organized for the specific purpose of evading this      chapter.         p.  Any other person specified by rule adopted or order issued      under this chapter.         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.         13A.  "Interest at the legal rate" means the interest rate for      judgments specified in section 535.3.         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 any of the following:         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 who 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.         h.  Any other person excluded by rule adopted or order issued      under this chapter.         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 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 does not include an individual who does or      is any of the following:         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 by      the securities and exchange commission under section 203A of the      Investment Advisers Act of 1940, 15 U.S.C. § 80b-3a, and is any of      the following:         (1)  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.         (2)  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).         d.  Is excluded by rule adopted or order issued under this      chapter.         17.  "Issuer" means a person that issues or proposes to issue      a security, subject to all of 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.         d.  With respect to a viatical settlement investment contract,      "issuer" means a person involved in creating, transferring, or      selling to an investor any interest in such a contract, including but      not limited to fractional or pooled interests, but does not include      an agent or a broker-dealer.         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; cooperative; 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 any of the      following:         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.         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 chapter" means this chapter as it existed on      December 31, 2004.         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 all of the following:         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.         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.         27A.  "Securities and regulated industries bureau" means the      securities and regulated industries bureau of the insurance division      of the department of commerce.         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.      All of the following shall apply to the term:         a.  It includes both a certificated and an uncertificated      security.         b.  It does not include an insurance or endowment policy or      annuity contract under which an insurance company promises to pay a      fixed or variable sum of money either in a lump sum or periodically      for life or other specified period.         c.  It does not include any of the following:         (1)  An interest in a contributory or noncontributory pension or      welfare plan subject to the Employee Retirement Income Security Act      of 1974.         (2)  A certificate or tax credit issued or transferred pursuant to      chapter 15E, division VII.         d.  It includes 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.         e.  It includes as a security an interest in a limited      liability company or in a limited liability partnership or any class      or series of such interest, including any fractional or other      interest in such interest, provided "security" does not include      an interest in a limited liability company or a limited liability      partnership if the person claiming that such an interest is not a      security proves that all of the members of the limited liability      company or limited liability partnership are actively engaged in the      management of the limited liability company or limited liability      partnership; provided that the evidence that members vote or have the      right to vote, or the right to information concerning the business      and affairs of the limited liability company or limited liability      partnership, or the right to participate in management, shall not      establish, without more, that all members are actively engaged in the      management of the limited liability company or limited liability      partnership.         f.  It includes a viatical settlement investment contract.         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, to do any of the following:         a.  To execute or adopt a tangible symbol.         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.         31A.  "Viatical settlement investment contract" means a      contract entered into by a viatical settlement purchaser, to which      the viator is not a party, to purchase a life insurance policy or an      interest in the death benefits of a life insurance policy, which      contract is entered into for the purpose of deriving economic      benefit.  
         Section History: Early Form
         [C31, 35, § 8581-c3; C39, § 8581.03; C46, 50, 54, 58, 62, 66,      71, 73, 75, § 502.3; C77, 79, 81, § 502.102; 81 Acts, ch 163, § 1; 82      Acts, ch 1100, § 24] 
         Section History: Recent Form
         83 Acts, ch 169, § 2; 85 Acts, ch 155, §23; 87 Acts, ch 53, § 1,      2; 87 Acts, ch 181, § 1; 91 Acts, ch 40, §3--5; 91 Acts, ch 230, §4,      5; 94 Acts, ch 1031, §6; 96 Acts, ch 1025, § 1; 97 Acts, ch 114,      §1--4; 98 Acts, ch 1106, §1, 2, 24; 99 Acts, ch 134, §1--3; 2001      Acts, ch 16, §5, 37; 2001 Acts, ch 55, §31, 38; 2001 Acts, ch 118,      §1, 2; 2002 Acts, ch 1111, §2, 3; 2003 Acts, ch 44, §89; 2003 Acts,      ch 108, §130; 2004 Acts, ch 1161, §1, 68; 2005 Acts, ch 19, §74; 2005      Acts, ch 135, §115; 2006 Acts, ch 1117, §5, 6         Referred to in § 252I.1, 421.17A, 508.31A, 508.32, 508.32A,      521A.14, 633D.2