§ 23-19-1-2 — Definitions

Indiana § 23-19-1-2

• Jurisdiction: Indiana
• Title 23: BUSINESS AND OTHER ASSOCIATIONS
• Art. 19: INDIANA UNIFORM SECURITIES ACT
• Ch. 1: General Provisions

Text

In this article, 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.
However, 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 article.
(2) "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 under 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 article; and
(D) a receiver, conservator, or other liquidating agent of any
institution or firm included in clause (A), (B), or (C).
(3) "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 savings institution, or a trust company that is a
wholly owned subsidiary of a bank or savings institution if its
activities as a broker-dealer are limited to those specified in
subsections 3(a)(4)(B)(i) through (vi), (viii) through (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.
78c(a)(4) and 15 U.S.C. 78c(a)(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. 78c(a)(4));
(D) an international banking institution; or
(E) a person excluded by rule adopted or order issued under this
article.
(4) "Commissioner" means the securities commissioner appointed
under IC 23-19-6-1(a).
(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 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 under that provision.
(8) "Filing" means the receipt under this article of a record by the
commissioner or a designee of the commissioner.
(9) "Fraud", "fraudulent", "deceit", and "defraud" mean a
misrepresentation of a material fact, a promise, representation, or
prediction not made honestly or in good faith, or the failure to
disclose a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made,
not misleading. This definition does not limit or diminish the full
meaning of the terms as applied by or defined in courts of law or
equity. The terms are not limited to common law deceit.
(10) "Guaranteed" means guaranteed as to payment of all
principal, dividends, and 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 ten million dollars
($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 article, 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 ($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 article, a
depository institution, or an insurance company;
(H) a trust, if it has total assets in excess of ten million dollars
($10,000,000), its trustee is a depository institution, and its
participants are exclusively plans of the types identified in
clause (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
ten million dollars ($10,000,000);
(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 ten million dollars ($10,000,000);
(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 ten million
dollars ($10,000,000);
(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 CFR 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 CFR 240.15a-6);
(O) any other person, other than an individual, of institutional
character with total assets in excess of ten million dollars
($10,000,000) not organized for the specific purpose of evading
this article; or
(P) any other person specified by rule adopted or order issued
under this article.
(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 savings institution, or a trust company that is a
wholly owned subsidiary of 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 article.
(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, 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. 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. 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. 80b-2(a)(25)); or
(D) is excluded by rule adopted or order issued under this
article.
(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 under 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 IC 23-2-1 (before its repeal).
(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 a fixed or variable sum of money either in a lump sum or
periodically for life or another 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" 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) "Third party solicitor" means a person that, for
compensation, directly or indirectly, solicits a client for or refers
a client to an investment adviser, a federal covered investment
adviser, or an investment adviser representative. The term does
not include the following:
(A) An employee subject to the supervision and control of an
investment adviser registered under IC 23-19-4-3.
(B) A "supervised person", as defined in Section 202(a)(25) of
the Investment Advisers Act of 1940 (15 U.S.C. 80b-2(a)(25)).
(C) A partner, officer, director, or employee of a person that
controls, is controlled by, or is under common control with an
investment adviser or a federal covered investment adviser.
(D) An individual excluded by a rule adopted or order issued
under this article.
(32) "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.
(33) "Accredited investor" has the meaning set forth in 17 CFR
230.501(a).

Legislative History

As added by P.L.27-2007, SEC.23. Amended by P.L.106-2014, SEC.2; P.L.158-2022, SEC.5.