Selected Sections of the
Indiana Securities Act
Sections included on this page:
(a) "Commissioner" means the securities commissioner provided for in section 15(a) of this chapter.
(b) "Agent" means an individual, other than a broker-dealer, who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities. A partner, officer, or director of a broker-dealer or issuer or a person occupying a similar status or performing similar functions is an agent only if the person effects or attempts to effect a purchase or sale of securities in Indiana. "Agent" does not include an individual who represents an issuer in:
(1) effecting transactions in a security exempted by section 2(a)(1), 2(a)(2), 2(a)(3), 2(a)(6), 2(a)(7), or 2(a)(10) of this chapter;
(2) effecting transactions exempted by section 2(b) of this chapter;
(3) effecting transactions with existing employees, partners, or directors of the issuer, if no commission or other remuneration is paid or given directly or indirectly for soliciting a person in Indiana; or
(4) effecting transactions in Indiana limited to those transactions described in Section 15(h)(2) of the Securities Exchange Act of 1934 (15 U.S.C. 78o).
(c) "Broker-dealer" means a person engaged in the business of effecting offers, sales, or purchases of securities for the account of others or for the person's own account. "Broker-dealer" does not include:
(1) an agent;
(2) an issuer with respect to the offer or sale of the issuer's own securities;
(3) a bank, savings institution, or trust company; or
(4) a person who has no place of business in Indiana if the person effects transactions in Indiana exclusively with:
(i) the issuers of the securities involved in the transactions;
(ii) other broker-dealers; or
(iii) banks, savings institutions, trust companies, insurance companies, investment companies (as defined in the
Investment Company Act of 1940, as in effect on December 31, 1990), pension or profit-sharing trusts, or other financial institutions or institutional buyers, whether acting for themselves or as trustees, whether or not the offeror or any of the offerees is then present in Indiana.
(d) "Fraud", "fraudulent", "deceit", and "defraud" mean a misrepresentation of a material fact, a promise or 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 the light of the circumstances under which they were made, not misleading. This definition does not limit or diminish the full meaning of those terms as applied by or defined in courts of law or equity. These terms are not limited to common law deceit.
(e) "Guaranteed" means guaranteed as to payment of principal, interest, or dividends.
(f) "Issuer" means a person who issues or proposes to issue a security, except that with respect to certificates of deposit, voting-trust certificates, or collateral-trust certificates, or with respect to certificates of interest or shares in an unincorporated investment trust not having a board of directors or person performing similar functions or of the fixed, restricted management, or unit type. The term "issuer" means the person or persons performing the acts and assuming the duties of depository or manager pursuant to the provisions of the trust or other agreement or instrument under which the security is issued.
(g) "Nonissuer" means not directly or indirectly for the benefit of the issuer.
(h) "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a joint-stock company, a trust where the interests of the beneficiaries are evidenced by a security, an unincorporated organization, a government, or a political subdivision of a government.
(i)(1) "Sale" or "sell" means a contract of sale of, contract to sell, or disposition of, a security, or interest in a security for value.
(2) "Offer" or "offer to sell" means an attempt or offer to dispose of, or solicitation of an offer to purchase, a security, or interest in a security for value.
(3) "Transaction" and "transactions" include the meanings of "sale", "sell", "offer", "offer to sell", and "purchase".
(4) "Purchase" means an acquisition, direct or indirect, of a security or an interest in a security for value.
(5) A security given or delivered with, or as a bonus on account of, a purchase of securities or any other thing is considered to constitute part of the subject of the purchase and to have been offered and sold for value.
(6) A purported gift of assessable stock is considered to involve an offer and sale.
(7) A sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer, as well as a sale or offer of a security that gives the holder a present or future right or
privilege to convert into another security of the same or another issuer, is considered to include an offer of the other security.
(8) The terms defined in this subsection do not include
(i) a bona fide secured transaction in or loan of outstanding securities;
(ii) a stock dividend, whether the corporation distributing the dividend is the issuer of the stock or not, if nothing of value is given by the stockholders for the dividend other than the surrender of a right to a cash or property dividend when each stockholder may elect to take the dividend in cash or property or in stock; or
(iii) an act incident to a judicially approved reorganization in which a security is issued in exchange for one (1) or more outstanding securities, claims, or property interests, or partly in such exchange and partly for cash.
(j) "Securities Act of 1933", "Securities Exchange Act of 1934", "Public Utility Holding Company Act of 1935", and "Investment Company Act of 1940" mean the federal statutes of those names, as in effect on December 31, 1990.
(k) "Security" means a note, stock, treasury stock, bond, debenture, evidence of indebtedness, an interest in a limited liability company or limited liability partnership and any class or series of an interest in a limited liability company or limited liability partnership (including any fractional or other interest in an interest in a limited liability company or limited liability partnership), certificate of interest or participation in a profit-sharing agreement, commodity futures contract, option, put, call, privilege, or other right to purchase or sell a commodity futures contract, margin accounts for the purchase of commodities or commodity futures contracts, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, viatical settlement contract, any fractional or pooled interest in a viatical settlement contract, voting-trust certificate, certificate of deposit for a security, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title or lease, an automatic extension or rollover of an existing security, 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, option, or right to subscribe to or purchase, any of the foregoing. "Security" does not include:
(1) 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 some other specified period;
(2) a contract or trust agreement under which money is paid pursuant to a charitable remainder annuity trust or a charitable remainder unitrust (described in Section 664 of the Internal Revenue Code), or a pooled income fund (described in Section 642(c)(5) of the Internal Revenue Code) or an annuity contractunder which the purchaser receives a charitable contribution deduction under Section 170 of the Internal Revenue Code; or
(3) an interest in a limited liability company or limited liability partnership if the person claiming that the interest is not a security can prove 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.
(l) "State" means a state, territory, or possession of the United States, the District of Columbia, and Puerto Rico.
(m) Corporations are "affiliated" during a period of time when either is the owner of shares of the other representing and possessing fifty percent (50%) or more of the total combined voting power of all classes of stock issued by the other corporation and then outstanding and entitled to vote.
(n) "Investment adviser" means a person who holds himself out to be an investment adviser, or who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as a part of a regular business, issues and promulgates analyses or reports concerning securities. "Investment adviser" does not include any of the following:
(1) A bank, savings institution, or trust company.
(2) A lawyer, an accountant, an engineer, or a teacher whose performance of these services is solely incidental to the practice of the person's profession.
(3) A broker-dealer or its agent whose performance of these services is solely incidental to the conduct of the broker-dealer's business as a broker-dealer and who receives no special compensation for them.
(4) A publisher of a bona fide newspaper, news column, newsletter, news magazine, or business or financial publication or service, by whatever means communicated, that does not render advice on the specific investment situation of individual clients.
(5) An investment adviser representative.
(6) A person who is an investment adviser to an investment company registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.).
(7) A person who is registered as an investment adviser under Section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3).
(8) A person who is excluded from the definition of investment adviser under Section 202(a)(11) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-2).
(9) Other persons the commissioner may by rule or order designate.
(o) "Transferable share" means a security representing an equity interest in a corporation or business trust, but does not include theshares of open-end investment companies (as defined by the Investment Company Act of 1940, as in effect on December 31, 1990).
(p) A "qualified transfer agent" means:
(1) a bank whose deposits are insured by the Bank Insurance Fund of the Federal Deposit Insurance Corporation; or
(2) a person, independent of the issuer, approved by the commissioner by regulation or by individual order in specific cases.
(q) "Investment adviser representative" means a person, except a person in a clerical or ministerial position:
(1) who is employed by or associated with an investment adviser registered under this chapter; or
(2) who has a place of business located in Indiana and is employed by or associated with a person required to be registered as an investment adviser under Section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3); and
(A) makes recommendations or otherwise renders advice regarding securities;
(B) manages accounts or portfolios of clients;
(C) determines recommendations or advice that should be given regarding securities;
(D) solicits, offers, or negotiates the sale of or sells investment advisory services; or
(E) supervises employees who perform a duty described in this subsection.
(r) "Accredited investor" means a person who is within any of the following categories, or who the issuer reasonably believes is within any of the following categories, at the time of the sale of securities to the person:
(1) A person who meets the definition of "accredited investor" (as defined under the Securities Act of 1933 in 17 CFR 230.215), and in any other rule or regulation modifying the definition adopted by the Securities and Exchange Commission as in effect on December 31, 1990.
(2) A person to whom an offer or sale may be made without registration pursuant to section 2(b)(8) or 2(b)(9) of this chapter.
(3) Any other person the commissioner may designate by rule or order.
(s) "Federal covered security" refers to a security described as a covered security in Section 18(b) of the Securities Act of 1933 (15 U.S.C. 77r).
(t) "Viatical settlement contract" means an agreement for the purchase, sale, assignment, transfer, devise, or bequest of a portion of a death benefit or ownership of a life insurance policy or contract for consideration that is less than the expected death benefit of the life insurance policy or contract. The term does not include the following:
(1) A loan by an insurer under the terms of a life insurance policy, including a loan secured by the cash value of a policy.
(2) An agreement with a bank, savings bank, savings and loan association, credit union, or other licensed lending institution that takes an assignment of a life insurance policy as collateral for a loan.
(3) The provision of accelerated death benefits by an insurer to an insured under the provisions of a life insurance contract.
(4) Agreements between an insurer and a reinsurer.
(5) An agreement by a person who enters into not more than one (1) such agreement in any five (5) year period to purchase a life insurance policy or contract for the transfer of a life insurance policy for a value that is less than the expected death benefit.
It is unlawful for any person to offer or sell any security in Indiana unless:
(1) it is registered under this chapter;
(2) the security or transaction is exempted under section 2 of this chapter; or
(3) it is a federal covered security.
REGISTRATION UNDER SECURITIES ACT OF 1933; REGISTRATION BY COORDINATION; REQUIRED INFORMATION
(a) A security for which a registration statement has been filed under the Securities Act of 1933 in connection with the same offering may be registered by coordination.
(b) An application for registration under this section shall be filed with the commission and shall contain the following information and be accompanied by the following documents, in addition to the information specified in section 6(e) of this chapter, and the consent to service of process required by section 16 of this chapter:
(1) One (1) copy of the latest registration statement filed under the Securities Act of 1933 as of the date of filing under this section.
(2) If the commissioner, by rule or otherwise, requires a copy of the articles of incorporation and bylaws (or their substantial equivalents) currently in effect, a copy of any agreements with or among underwriters, a copy of an indenture or other instrument governing the issuance of the security to be registered, and a specimen or copy of the security.
(3) If the commissioner requests, other information, or copies of other documents, filed under the Securities Act of 1933.
(4) An undertaking to forward all future amendments to the federal prospectus other than an amendment that merely delays the effective date of the registration promptly, and in any event not later than the first business day after the day they are forwarded to or filed with the Securities and Exchange Commission, whichever first occurs.
(c) An application for registration under this section automatically becomes effective at the moment the federal registration statement becomes effective if all the following conditions are satisfied:
(1) No stop order is in effect and no proceeding is pending under section 7 of this chapter.
(2) The application for registration has been on file with the commissioner for at least ten (10) business days.
(3) A statement of the maximum and minimum proposed offering prices and the maximum underwriting discounts and commissions has been on file for two (2) full business days or a shorter period as the commissioner permits by rule or otherwise and the offering is made within those limitations.
(4) The registrant promptly notifies the commissioner by telephone or telegram of the date and time when the federal registration statement became effective and the content of the price amendment, if any.
(5) The registrant promptly files a posteffective amendment containing the information and documents in the price amendment. "Price amendment" means the final federal amendment 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.
(d) Upon failure to receive the required notification and posteffective amendment with respect to the price amendment, the commissioner may enter a stop order, without notice or hearing,
retroactively denying effectiveness to the application for registration or suspending its effectiveness until compliance with this subsection, if the commissioner promptly notifies the registrant by telephone or telegram (and promptly confirms by letter or telegram when the commissioner notifies by telephone) of the issuance of the order. If the registrant proves compliance with the requirements of this subsection as to notice and posteffective amendment, the stop order is void as of the time of its entry. The commissioner may by rule or otherwise waive either or both of the conditions specified in subsection (c)(2), (c)(3), (c)(4), and (c)(5). If the federal registration statement becomes effective before all conditions in this subsection are satisfied and they are not waived, the application for registration automatically becomes effective as soon as all the conditions are satisfied. If the registrant advises the commissioner of the date when the federal registration statement is expected to become effective, the commissioner shall promptly advise the registrant by telephone or telegram at the registrant's expense, whether all the conditions are satisfied and whether the commissioner then contemplates the institution of a proceeding under section 7 of this chapter. The advice of the commissioner does not preclude the institution of a proceeding at any time.
FRAUDULENT OR DECEITFUL ACTS
It is unlawful for any person in connection with the offer, sale or purchase of any security, either directly or indirectly, (1) to employ any device, scheme or artifice to defraud, or (2) to make any untrue statements of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of circumstances under which they are made, not misleading, or (3) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.
UNLAWFUL PRACTICES; INVESTMENT ADVISERS AND INVESTMENT ADVISER REPRESENTATIVES
(a) It is unlawful for an investment adviser or an investment adviser representative who receives consideration, directly or indirectly, from another person for advising the other person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise to:
(1) employ a device, scheme, or artifice to defraud the other person;
(2) engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon the other person; or
(3) knowingly sell to or purchase from a client a security when the investment adviser or investment adviser representative is acting as principal for the adviser's or the representative's own account, or knowingly sell to or purchase for the account of a client a security when the investment adviser or investment adviser representative is acting as a broker for a person other than the client without:
(A) disclosing to the client in writing before the completion of the sale or purchase the fact that the investment adviser or investment adviser representative is acting as a broker for a person other than the client; and
(B) obtaining consent from the client for the sale or purchase.
The prohibitions of this subdivision do not apply to a transaction with a client of a broker-dealer if the broker-dealer is not acting as an investment adviser in the transaction.
(b) Except as permitted by rule or order of the commissioner, it is unlawful for an investment adviser to enter into, extend, or renew an investment advisory contract unless it provides in writing that:
(1) the investment adviser shall not be compensated on the basis of a share of capital gains upon or capital appreciation of the funds or a portion of the funds of the client;
(2) no assignment of the contract may be made by the investment adviser without the consent of the other party to the contract; and
(3) the investment adviser, if a partnership, shall notify the other party to the contract of a change in the membership of the partnership within a reasonable time after the change.
Subdivision (1) does not prohibit an investment advisory contract which provides for compensation based upon the total value of a fund averaged over a definite period, or as of definite dates or taken as of a definite date. "Assignment", as used in subdivision (2), includes a direct or indirect transfer or hypothecation of an investment advisory contract by the assignor or of a controlling block of the assignor's outstanding voting securities by a security holder of the assignor, but if the investment adviser is a partnership, no assignment of an investment advisory contract is considered to result from the death or withdrawal of a minority interest in the business of the investment adviser or from the admission to the investment adviser of one (1) or more members who, after admission, will be only a minority of the members and will have only a minority interest in the business.
(c) It is unlawful for an investment adviser to take or have custody of the securities of a client if:
(1) the commissioner by rule prohibits custody; or
(2) in the absence of a rule, the investment adviser fails to notify the commissioner that the investment adviser has or may have custody.
(d) When soliciting advisory clients, it is unlawful for a person to make an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.
(e) The commissioner may by rule or order allow exemptions from subsections (a)(3), (b)(1), (b)(2), and (b)(3) if the exemptions are in the public interest and within the purposes of this chapter.
(f) The commissioner may by rule or order require disclosure in writing of the information specified by the commissioner by an investment adviser or an investment adviser representative to a client or prospective client.
(g) It is unlawful for a person that is required to be registered under Section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) as an investment adviser to:
(1) employ a device, scheme, or artifice to defraud another person;
(2) engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person; or
(3) when soliciting advisory clients, to make an untrue statement of material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances in which they are made, not misleading.
PROHIBITED ACTIONS RELTATED TO VIATICAL SETTLEMENT CONTRACTS
(a) This section applies to the following:
(1) The secretary of state.
(2) The securities commissioner.
(3) A prosecuting attorney.
(4) The attorney general.
(5) A designee of a person specified in subdivisions (1) through (4).
(b) A person specified in subsection (a) shall not take any action against another person under this chapter solely because a:
(1) viatical settlement contract; or
(2) fractional or pooled interest in a viatical settlement contract;
that was the subject of a transaction in which the other person was involved before March 17, 2000, was not registered under this chapter.
(c) A person specified in subsection (a) shall not take any action against another person under this chapter solely because the other person did not, before March 17, 2000, comply with the:
(1) registration requirements of this chapter; or
(2) requirements of this chapter that apply to a person that offers or sells securities in Indiana;if the other person did not at the time of the offer or sale, and before March 17, 2000, offer or sell securities other than a viatical settlement contract or a fractional or pooled interest in a viatical settlement contract.
(d) A person specified in subsection (a) shall not take any action against another person under this chapter solely because the other person did not comply with the registration requirements referred to in subsections (b) and (c).
DECEPTIVE PRACTICES; CIVIL LIABILITY; RIGHTS AND REMEDIES; COSTS; ATTORNEY’S FEES
(a) A person who offers or sells a security in violation of this chapter, and who does not sustain the burden of proof that the person did not know and in the exercise of reasonable care could not have known of the violation, is liable to any other party to the transaction who did not knowingly participate in the violation or who did not have, at the time of the transaction, knowledge of the violation, who may sue either at law or in equity to rescind the transaction or to recover the consideration paid, together, in either case, with interest as computed in subsection (g)(1), plus costs, and reasonable attorney's fees, less the amount of any cash or other property received on the security upon the tender of the security bythe person bringing the action or for damages if the person no longer owns the security. Damages are the amount that would be recoverable upon a tender less:
(1) the value of the security when the buyer disposed of the security; and
(2) the interest as computed in subsection (g)(1) on the value of the security from the date of disposition.
(b) A person who purchases a security in violation of this chapter, and who does not sustain the burden of proof that the person did not know and in the exercise of reasonable care could not have known of the violation, is liable to any other party to the transaction who did not knowingly participate in the violation or who did not have, at the time of the transaction, knowledge of the violation. The other party to the transaction may bring an action to rescind the transaction or for damages, together, in either case, with reasonable attorney's fees, upon the tender of the consideration received by the person bringing the action.
(c) A person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as a part of a regular business, issues analyses or reports concerning securities and:
(1) violates section 8, 12.1(b), 14, or 26 of this chapter;
(2) employs a device, scheme, or artifice to defraud a person; or
(3) engages in an act that operates or would operate as fraud or deceit upon a person;
is liable to the other person, who may bring an action to recover any consideration paid for advice, any loss due to advice, interest at eight percent (8%) each year from the date consideration was paid, costs, and reasonable attorney's fees less the value of cash or property received due to the advice. It is a defense to an action brought for a violation of section 12.1(b) or 26 of this chapter that the person accused of the violation did not know of the violation and, exercising reasonable care, could not have known of the violation.
(d) A person who directly or indirectly controls a person liable under subsection (a), (b), or (c), a partner, officer, or director of the person, a person occupying a similar status or performing similar functions, an employee of a person who materially aids in the conduct creating the liability, and a broker-dealer or agent who materially aids in the conduct are also liable jointly and severally with and to the same extent as the person, unless the person who is liable sustains the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons liable.
(e) A tender specified in this section may be made at any time before entry of judgment.
(f) A cause of action under this statute survives the death of aperson who might have been a plaintiff or defendant.
(g) Action under this section shall be commenced within three (3) years after discovery by the person bringing the action of a violation of this chapter, and not afterwards, but in no event may an action, unless the period is extended by operation of IC 34-11-5-1, be commenced more than six (6) years after the purchase or sale of a viatical settlement contract or fractional or pooled interest in a viatical settlement contract that occurred before March 17, 2000, and is the subject of the action. This subsection does not affect a remedy that is available to a person bringing a cause of action under IC 27 or IC 34 or based on common law fraud. No person may sue under this section:
(1) if that person received a written offer, before suit and at a time when the person owned the security, to refund the consideration paid together with interest on that amount from the date of payment to the date of repayment, with interest on:
(A) interest-bearing obligations to be computed at the same rate as provided on the security; and
(B) all other securities at the rate of eight percent (8%) per year;
less the amount of any income received on the security, and the person failed to accept the offer within thirty (30) days of its receipt; or
(2) if the person received an offer before suit and at a time when the person did not own the security, unless the person rejected the offer in writing within thirty (30) days of its receipt.
(h) No person who has made or engaged in the performance of a contract in violation of this chapter or a rule or order under this chapter, or who has acquired a purported right under a contract with knowledge of the facts by reason of which its making or performance was in violation, may base a suit on the contract.
(i) A condition, stipulation, or provision binding a person acquiring a security to waive compliance with this chapter or a rule or order under this chapter is void.
(j) The rights and remedies specifically prescribed by this chapter are the only rights and remedies created by this chapter, but are in addition to any other rights or remedies that exist at law or in equity.
(a) If the commissioner determines, after notice and opportunity for a hearing, that any person has violated this chapter, the commissioner may, in addition to or in lieu of all other remedies, impose a civil penalty upon any person who has violated this chapter.
This penalty may not exceed ten thousand dollars ($10,000) for each violation of this chapter found to have been committed. An appeal from the decision of the commissioner imposing a civil penalty under this subsection may be taken by any aggrieved party pursuant to section 20 of this chapter.
(b) The commissioner may bring any action in the circuit or superior court of Marion County to enforce payment of any penalty imposed under subsection (a).
(c) Penalties collected under this section shall be deposited in the securities division enforcement account established under section 15(c) of this chapter.
The above is not the complete act. This page contains only certain sections of the statute which we believe you may find informative. We do not and cannot guarantee the above sections are current law in this state. Legislatures may enact revised statutes at any time. Moreover these sections are presented for informational purposes only and are presented “as is” with all faults and with no warranties or guarantees as to the accuracy. Further, The content on these pages are not offered or intended to be legal advice by this firm for any purpose or manner whatsoever. If you require the current and complete version of the Law in your state, you should visit the Legislature home page of the particular state for more information or contact an attorney for advice on obtaining such information.