As Amended
SEC. 75-71-503. Prohibited practices concerning fraud, deceit, lack of disclosure; requirements as to investment advisory contracts; custody of securities or funds by investment adviser.
(a) It is unlawful for any person who receives, directly or indirectly, any consideration from another person primarily for advising the other person as to the value of securities or their purchase or sale:
(1) To employ any device, scheme, or artifice to defraud the other person;
(2) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon the other person; or
(3) To act as principal for his own account, knowingly to sell any security from a client, or act as broker for a person other than such client knowingly to effect any sale or purchase of any security for the account of such client, without disclosing to such client in writing before the execution of such transaction the capacity in which he is acting and obtaining the consent of the client to such transaction. The prohibitions of this subparagraph shall not apply to any transaction with a customer of a broker-dealer if such broker-dealer is not acting as an investment adviser in relation to such transactions.
(b) In the solicitation of advisory clients, it is unlawful for any person to make any 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.
(c) Except as may be permitted by rule or order of the Secretary of State, it is unlawful for any investment adviser to enter into, extend or renew any investment advisory contract unless it provides in writing:
(1) That the investment adviser shall not be compensated on the basis of a share of capital gains upon or capital appreciation of the funds or any portion of the funds of the client;
(2) That no assignment of the contract may be made by the investment adviser without the consent of the other party to the contract; and
(3) That the investment adviser, if a partnership, shall notify the other party to the contract of any change in the membership of the partnership within a reasonable time after the change.
(d) Subparagraph (c)(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 a definite date. "Assignment," as used in subparagraph (c)(2), includes any 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; provided, however, 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 of the members of the investment adviser, or from the admission to the investment adviser of one or more members who, after admission, will be only a minority of the members and will have only a minority interest business. The Secretary of State may by rule adopt exemptions from subparagraphs (c)(1), (2) and (3) where such exemptions are consistent with the public interest and within the purposes fairly intended by the policy and provisions of this chapter.
(e) It is unlawful for any investment adviser to take or have custody of any securities or funds of any client if
(1) The Secretary of State by rule prohibits custody; or
(2) In the absence of rule, the investment adviser fails to notify the Secretary of State that he has or may have custody.
(f) The Secretary of State may by rule or order adopt exemptions from subparagraph (a)(3) and subparagraphs (c)(1), (c)(2) and (c)(3) where such exemptions are consistent with the public interest and within the purposes fairly intended by the policy and provisions of this chapter.
SOURCES: Laws, 1981, ch. 521, Sec. 102; 1987, ch. 477, Sec. 14, eff from and after July 1, 1987.