N.D. Cent. Code § 10-04-02

10-04-02. Definitions

When used in this chapter, unless the context or subject matter otherwise requires:

1. "Agent" means an individual, other than a broker-dealer, who represents a

broker-dealer or an issuer or is self-employed in effecting or attempting to effect

purchases or sales of securities. However, a partner, officer, or director of a

broker-dealer, or an individual having a similar status or performing similar functions is

an agent only if the individual otherwise comes within the term.

2. "Bank" means:

a. A bank institution organized under the laws of the United States;

b. A member bank of the federal reserve system;

c. Any other banking institution, whether or not incorporated, 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, 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; and

d. A receiver, conservator, or other liquidating agent of any institution or firm

included in subdivision a, b, or c.

3. "Broker-dealer" means a person engaged in the business of effecting transactions in

securities issued by another person or by such person for the account of others or for

the person's own account. The term does not include:

a. An agent;

b. 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 or a bank that satisfies the conditions described in

subsection 3(a)(4)(E) of the Securities Exchange Act of 1934; or

c. An issuer, including an officer, director, employee, or trustee of, or member or

manager of, or partner in, or a general partner of, an issuer, that sells, offers for

sale, or does any act in furtherance of the sale of a security that represents an

economic interest in that issuer, provided no commission, fee, or other similar

remuneration is paid to or received by the issuer for the sale.

4. "Commissioner" means the insurance commissioner.

5. "Department" means the insurance department.

6. "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 shares insurance fund, or a

successor authorized by federal law. The term does not include:

(1) An insurance company or other organization primarily engaged in the

business of insurance;

(2) A Morris plan bank; 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 shares insurance fund, or a

successor authorized by federal law. The term does not include:

(1) An insurance company or other organization primarily engaged in the

business of insurance;

(2) A Morris plan bank; or

(3) An industrial loan company.

7. "Federal covered adviser" means a person who is registered under section 203 of the

Investment Advisers Act of 1940.

8. "Federal covered security" means a security that is, or upon completion of a

transaction will be, a covered security pursuant to section 18(b) of the Securities Act of

1933 or rules or regulations adopted under that Act.

9. "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 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

chapter, 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 subdivision 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,

corporation, Massachusetts trust or similar business trust, limited liability

company, or partnership, not formed for 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

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 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)(i)(H), adopted under the Securities Act of 1933;

n. A major United States institutional investor as defined in rule 15a-6(b)(4)(i)

adopted under the Securities Exchange Act of 1934; or

o. Any other person, other than an individual, of institutional character with total
iser 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;

n. A major United States institutional investor as defined in rule 15a-6(b)(4)(i)

adopted under the Securities Exchange Act of 1934; or

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 chapter.

10. "Investment adviser" means any 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 or

promulgates analyses or reports concerning securities. The term includes financial

planners and other persons who, as an integral component of other financially related

services, provide the foregoing investment advisory services to others for

compensation and as part of a business or who hold themselves out as providing the

foregoing investment advisory services to others for compensation. The term does not

include:

a. An investment adviser representative.

b. A bank, savings institution, or trust company.

c. A lawyer, accountant, engineer, or teacher whose performance of these services

is solely incidental to the practice of the person's profession.

d. A broker-dealer or its agent whose performance of these services is solely

incidental to the conduct of business as a broker-dealer and who receives no

special compensation for them.

e. A publisher of any bona fide newspaper, news column, newsletter, news

magazine, or business or financial publication or service, whether communicated

in hard copy form, or by electronic means, or otherwise, that does not consist of

the rendering of advice on the basis of the specific investment situation of each

client.

f. A federal covered adviser.

g. A person who is excluded by the Investment Advisers Act of 1940 from the

definition of investment adviser.

h. Such other persons not within the intent of this subsection as the commissioner

may by rule or order designate.

11. a. "Investment adviser representative" means an individual employed by or

associated with an investment adviser or federal covered adviser and who:

(1) Makes any recommendations or otherwise renders advice regarding

securities directly to advisory clients;

(2) Manages the accounts or portfolios of clients;

(3) Determines which recommendations or advice regarding securities should

be given;

(4) Provides investment advice or holds out as providing investment advice,

receives compensation to solicit, offer, or negotiate for the sale of or sells

investment advisory services; or

(5) Immediately supervises employees in the performance of any of the

foregoing.

b. The term does not include an individual who:

(1) 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 the securities and exchange commission pursuant to

section 203A of the Investment Advisers Act of 1940.

(2) 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.
dviser,

unless the individual has a "place of business" in this state, as that term is

defined by the securities and exchange commission pursuant to

section 203A of the Investment Advisers Act of 1940.

(2) 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.

(3) Performs only clerical or ministerial acts.

12. "Issuer" means every person who issues or proposes to issue any security, except

that:

a. With respect to certificates of deposit, voting-trust certificates, collateral trust

certificates, or shares in an unincorporated investment trust, issuer means the

person or persons performing the acts and assuming the duties of depositor or

manager pursuant to the provisions of the trust or other agreement or instrument

under which such securities are issued.

b. With respect to equipment trust certificates or like securities serving the same

purpose, issuer means the person by whom the equipment or 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. With respect to fractional interests in an oil, gas, or other mineral lease or in

payments out of production under a lease, right, or royalty, issuer means the

owner of any such right or any interest in such 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 fractional or pooled interest in a viatical settlement contract,

issuer means the person who creates, for the purpose of sale, the fractional or

pooled interest. The issuer of a viatical settlement contract that is not

fractionalized or pooled means the person effecting the transactions with the

investors in such contracts.

13. "Offer for sale" or "offer to sell" means every attempt or offer to dispose of, or

solicitation of an order or offer to buy, a security or interest in a security for value.

14. "Person" means an individual, corporation, limited liability company, partnership,

association, joint venture, trust, government, governmental subdivision, agency, or

instrumentality or any other legal or commercial entity.

15. "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.

16. "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.

17. "Record" except in 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.

18. "Sale" or "sell" means every sale, contract to sell, or disposition of a security or interest

in a security for value, and every contract to make any such sale or disposition. The

term includes:

a. Any security given or delivered with, or as a bonus on account of any purchase of

securities or any other thing, must be conclusively presumed to constitute a part
rievable in perceivable form.

18. "Sale" or "sell" means every sale, contract to sell, or disposition of a security or interest

in a security for value, and every contract to make any such sale or disposition. The

term includes:

a. Any security given or delivered with, or as a bonus on account of any purchase of

securities or any other thing, must be conclusively presumed to constitute a part

of the subject of such purchase and to have been sold for value.

b. 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.

19. "Security" means any note; stock; treasury stock; bond; debenture; evidence of

indebtedness; certificate of interest or participation in any profit-sharing agreement;

certificate of interest or participation in an oil, gas, or mining title or lease or in

payments out of production under such a title or lease; collateral trust certificate;

preorganization certificate or subscription; transferable share; investment contract;

viatical or life settlement contract or a fractionalized or pooled interest therein;

program, contract, or other arrangement in which persons invest in a common

enterprise the returns of which depend to any extent upon inducing other persons to

participate or invest in the enterprise; investment of money or money's worth including

goods furnished or services performed in the risk capital of a venture with the

expectation of profit or some other form of benefit to the investor when the investor

has no direct control over the investment or policy decisions of the venture; voting-trust

certificate; certificate of deposit for a security; foreign currency commodity contract, as

used in chapter 51-23; or beneficial interest in title to property, profits, or earnings; or,

in general, any interest or instrument commonly known as a "security"; or any

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.

20. "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.

21. "Viatical or life settlement contract" means an agreement for the purchase, sale,

assignment, transfer, devise, or bequest of any portion of the death benefit or

ownership of a life insurance policy or certificate, for consideration that is less than the

expected death benefit of the life insurance policy or certificate. "Viatical or life

settlement contract" does not include:

a. The assignment, transfer, sale, devise, or bequest of a death benefit, life

insurance policy, or certificate of insurance by the owner to the provider pursuant

to chapter 26.1-33.4;

b. The assignment of a life insurance policy to a bank or depository institution; or

c. The exercise of accelerated benefits pursuant to the terms of a life insurance

policy issued in accordance with the insurance laws of this state.