(a)The prohibitions set forth in section 17 of
this chapter do not apply to any of the following:
(1)An account, an agreement, or a transaction that is within the
exclusive jurisdiction of the Commodity Futures Trading
Commission as provided under the Commodity Exchange Act.
(2)A commodity contract:
(A)that is for the purchase of at least one (1) precious metal;
(B)that requires physical delivery of the quantity of the
precious metals purchased not later than twenty-eight (28)
calendar days after payment of any portion of the purchase
price; and
(C)under which the purchaser receives physical delivery of the
quantity of precious metals purchased not later than
twenty-eight (28) calendar days after payment of any portion of
the purchase price.
(3)A commodity contract solely between pe
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(a) The prohibitions set forth in section 17 of
this chapter do not apply to any of the following:
(1) An account, an agreement, or a transaction that is within the
exclusive jurisdiction of the Commodity Futures Trading
Commission as provided under the Commodity Exchange Act.
(2) A commodity contract:
(A) that is for the purchase of at least one (1) precious metal;
(B) that requires physical delivery of the quantity of the
precious metals purchased not later than twenty-eight (28)
calendar days after payment of any portion of the purchase
price; and
(C) under which the purchaser receives physical delivery of the
quantity of precious metals purchased not later than
twenty-eight (28) calendar days after payment of any portion of
the purchase price.
(3) A commodity contract solely between persons engaged in
producing, processing, using commercially, or handling as
merchants:
(A) each commodity subject to the contract; or
(B) any byproduct of the commodity subject to the contract.
(4) A commodity contract under which the offeree or the
purchaser is any of the following:
(A) A person described in section 18(a) of this chapter.
(B) An insurance company.
(C) An investment company (as defined in the Investment
Company Act of 1940).
(b) For purposes of this section, physical delivery is considered to
have occurred if both of the following occur:
(1) The quantity of precious metals purchased is delivered (in
specifically segregated or fungible bulk form) within the
twenty-eight (28) day period to the possession of a depository
that:
(A) is not the seller; and
(B) is any of the following:
(i) A depository that issues warehouse receipts that are
recognized for delivery purposes for any commodity on a
contract market designated by the Commodity Futures
Trading Commission.
(ii) A storage facility that is licensed or regulated by the
United States or any agency of the United States.
(iii) A depository designated by the commissioner.
(2) The depository, any other person described in subdivision
(1)(B), or a qualified seller issues and the purchaser receives a
certificate, document of title, confirmation, or other instrument
that evidences that the quantity of precious metals:
(A) has been delivered to the depository; and
(B) is held and will continue to be held:
(i) by the depository on the purchaser's behalf; and
(ii) free and clear of all liens and encumbrances, other than
liens of the purchaser, tax liens, liens agreed to by the
purchaser, or liens of the depository for fees and expenses
that have previously been disclosed to the purchaser.
(c) For the purposes of this section, a qualified seller is a person
who meets the following conditions:
(1) Is a seller of precious metals.
(2) Has:
(A) a tangible net worth of at least five million dollars
($5,000,000); or
(B) has an affiliate who:
(i) has unconditionally guaranteed the obligations and
liabilities of the person; and
(ii) has a tangible net worth of at least five million dollars
($5,000,000).
(3) Has stored precious metals with at least one (1) depository on
behalf of customers for at least the preceding three (3) years.
(4) Before any offer, and annually after any offer, files with the
commissioner a sworn notice of intent to act as a qualified seller
under this section that contains the following:
(A) The person's name and address.
(B) The names of the person's directors, officers, controlling
shareholders, partners, principals, and other controlling
persons.
(C) The address of the person's principal place of business.
(D) The state and date of the person's incorporation or
organization.
(E) The name and address of the person's registered agent in
Indiana.
(F) A statement that:
(i) the person; or
(ii) an affiliate of the person who has guaranteed the
obligations and liabilities of the person;
has a tangible net worth of at least five million dollars
($5,000,000).
(G) Depository information required by the commissioner,
including the following:
(i) The name and address of any depository that the person
intends to use.
(ii) The name and address of each depository in which the
person has stored precious metals on behalf of customers at
any time during the preceding three (3) years.
(iii) Independent verification from each depository named in
item (ii) that the person has in fact stored precious metals on
behalf of the person's customers in the depository during the
preceding three (3) years and a statement by each depository
showing the total deposits made by the person during the
three (3) years.
(H) A financial statement, audited by an independent certified
public accountant, for:
(i) the person; or
(ii) an affiliate of the person who has guaranteed the
obligations and liabilities of the person;
for the past three (3) years.
(I) The certified public accountant's audit report of the financial
statement described in clause (H).
(J) A statement describing the details of any civil, criminal, or
administrative proceedings currently pending or adversely
resolved against the person or the person's directors, officers,
controlling shareholders, partners, principals, or other
controlling persons during the preceding ten (10) years,
including the following:
(i) Civil litigation and administrative proceedings involving
securities or commodities violations or fraud.
(ii) Criminal proceedings.
(iii) Denials, suspensions, or revocations of securities or
commodities licenses or registrations.
(iv) Suspensions or expulsions from membership in or
associations with a self-regulatory organization registered
under the Securities Exchange Act of 1934 or the
Commodities Exchange Act.
(K) A statement declaring that proceedings described in clause
(J) have not occurred if there have been no proceedings of that
type.
(5) Notifies the commissioner of any material changes in the
information provided in the notice of intent under subdivision (4)
not later than fifteen (15) days after the changes occur or are
made.
(6) Annually furnishes to:
(A) each purchaser for whom the seller is currently storing
precious metals; and
(B) the commissioner;
a report by an independent certified public accountant of the
accountant's examination of the seller's precious metals storage
program.