551.102(11)(e)(e) A broker-dealer registered under the Securities Exchange Act of 1934. 551.102(11)(f)(f) An employee pension, profit-sharing, or benefit plan if the plan has total assets in excess of $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 chapter, a depository institution, or an insurance company. 551.102(11)(g)(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 $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 chapter, a depository institution, or an insurance company. For purposes of this paragraph, “political subdivision of a state” does not include a school district. 551.102(11)(h)(h) A trust, if it has total assets in excess of $10,000,000, its trustee is a depository institution, and its participants are exclusively plans of the types identified in par. (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. 551.102(11)(i)(i) An organization described in section 501 (c) (3) of the Internal Revenue Code (26 USC 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 $10,000,000. 551.102(11)(j)(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 USC 681 (c)) with total assets in excess of $10,000,000. 551.102(11)(k)(k) A private business development company as defined in section 202 (a) (22) of the Investment Advisers Act of 1940 (15 USC 80b-2 (a) (22)) with total assets in excess of $10,000,000. 551.102(11)(L)(L) A federal covered investment adviser acting for its own account. 551.102(11)(m)(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). 551.102(11)(n)(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). 551.102(11)(o)(o) Any other person, other than an individual, of institutional character with total assets in excess of $2,500,000 not organized for the specific purpose of evading this chapter. 551.102(11)(p)(p) Any other person specified by rule adopted or order issued under this chapter. 551.102(12)(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. 551.102(13)(13) “Insured” means insured as to payment of all principal and all interest. 551.102(14)(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. 551.102(15)(15) “Investment adviser” means a person that, for compensation, engages in the business of advising others, either directly or through publications, writings, or electronic means, 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 regarding securities to others for compensation as part of a business or that holds itself out as providing investment advice regarding securities to others for compensation. The term does not include any of the following: 551.102(15)(b)(b) A lawyer, accountant, engineer, or teacher whose performance of investment advice is solely incidental to the practice of the person’s profession. 551.102(15)(c)(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. 551.102(15)(d)(d) A publisher of a bona fide newspaper, news magazine, or business or financial publication of general and regular circulation. 551.102(15)(g)(g) Any other person that is excluded by the Investment Advisers Act of 1940 from the definition of investment adviser. 551.102(15)(h)(h) Any other person excluded by rule adopted or order issued under this chapter. 551.102(16)(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, receives compensation to solicit, offer, or negotiate for the sale of or for selling investment advice, or supervises employees who perform any of the foregoing. The term does not include any of the following: 551.102(16)(a)(a) An individual who performs only clerical or ministerial acts. 551.102(16)(b)(b) An individual who 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. 551.102(16)(c)(c) An individual who 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 USC 80b-3a), and, in addition to the place of business, any of the following apply to the individual: 551.102(16)(c)1.1. The individual is an “investment adviser representative,” as that term is defined by rule adopted under section 203A of the Investment Advisers Act of 1940 (15 USC 80b-3a). 551.102(16)(c)2.2. The individual is not a supervised person, as defined in section 202 (a) (25) of the Investment Advisers Act of 1940 (15 USC 80b-2 (a) (25)). 551.102(16)(d)(d) An individual who is excluded by rule adopted or order issued under this chapter. 551.102(17)(17) “Issuer” means a person that issues or proposes to issue a security, subject to the following: 551.102(17)(a)(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 pursuant to the trust or other agreement or instrument under which the security is issued. 551.102(17)(b)(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. 551.102(17)(c)(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. 551.102(17)(d)(d) With respect to a fractional or pool interest in a life settlement investment, “issuer” means every person who creates the fractional or pool interest for the purpose of offering or selling the interest. 551.102(17)(e)(e) With respect to a life settlement investment that is not a fractional or pool interest, “issuer” means the provider, as defined in s. 632.69 (1) (p), or the person who purchases or otherwise acquires the life settlement from a provider and then offers or sells life settlement investments except that, under this paragraph, “issuer” does not include a broker-dealer or agent registered under this chapter and does not include the owner of the insurance policy, certificate of insurance, or death benefit underlying the life settlement investment. 551.102(17m)(17m) “Life settlement investment” means the entire interest or any fractional or pool interest in a life insurance policy or certificate of insurance or in the death benefit thereunder that is the subject of a life settlement, as defined in s. 632.69 (1) (j), but does not include any of the following: 551.102(17m)(a)(a) The assignment, transfer, sale, devise or bequest of a death benefit, life insurance policy, or certificate of insurance by the owner to a provider pursuant to s. 632.69. 551.102(17m)(b)(b) The exercise of accelerated benefits pursuant to the life insurance policy or certificate and consistent with applicable law. 551.102(18)(18) “Nonissuer transaction” or “nonissuer distribution” means a transaction or distribution not directly or indirectly for the benefit of the issuer. 551.102(19)(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 USC 78n (d)). 551.102(20)(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. 551.102(21)(21) “Place of business” of a broker-dealer, an investment adviser, or a federal covered investment adviser means any of the following: 551.102(21)(a)(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. 551.102(21)(b)(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. 551.102(23)(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. 551.102(24)(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. 551.102(25)(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. 551.102(26)(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 all of the following: 551.102(26)(a)(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. 551.102(26)(b)(b) A gift of assessable stock involving an offer and sale. 551.102(26)(c)(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. 551.102(27)(27) “Securities and Exchange Commission” means the United States Securities and Exchange Commission. 551.102(28)(28) “Security” means a note; stock; treasury stock; security future; bond; debenture; evidence of indebtedness; limited partnership interest; life settlement investment or similar agreement; 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: 551.102(28)(a)(a) Includes both a certificated and an uncertificated security. 551.102(28)(b)(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 other specified period. 551.102(28)(c)(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 or in a governmental benefit plan qualified for federal income tax purposes under the Internal Revenue Code or trust or fund managed by the investment board. 551.102(28)(d)(d) Subject to the exception in par. (e), includes all of the following: 551.102(28)(d)1.1. An investment in a common enterprise with the expectation of profits to be derived through the essential managerial efforts of someone other than the investor. For purposes of this subdivision, a “common enterprise” is an enterprise in which the fortunes of the investor are tied to the efficacy of the efforts of those seeking the investment or a third party. 551.102(28)(d)2.2. Any investment by which an offeree furnishes initial value to an offeror, and a portion of this initial value is subjected to the risks of the enterprise, and the furnishing of the initial value is induced by the offeror’s promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind over and above the initial value will accrue to the offeree as a result of the operation of the enterprise, and the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise. 551.102(28)(e)(e) Includes as an “investment contract,” among other contracts, an interest in a limited liability partnership and in a limited liability company; except an interest, or class or series thereof, in a limited liability partnership or limited liability company is not an “investment contract” if any of the following apply: 551.102(28)(e)1.1. Each holder of an interest, or class or series thereof, is actively engaged in the management of the limited liability partnership or limited liability company. However, evidence that partners or members vote or have the right to vote, or the right to information concerning the business and affairs of the limited liability partnership or limited liability company, or the right to participate in management, shall not establish, without more, that all partners or members are actively engaged in the management of the limited liability partnership or limited liability company. 551.102(28)(e)2.2. Each holder of an interest, or class or series thereof, is authorized under applicable law or under the partnership, operating, or other governing agreement or document to act for and bind the limited liability partnership or limited liability company and the total number of holders of all interests in the limited liability partnership or limited liability company does not exceed 15. 551.102(28)(f)(f) Does not include a time share created and marketed in accordance with ch. 707 if the requirements under s. 707.11 are satisfied. 551.102(28)(g)(g) Does not include a membership interest in a domestic mutual holding company, as provided under s. 644.22. 551.102(28)(h)(h) Does not include as an “investment contract” any contract excluded by rule adopted or order issued under this chapter. 551.102(29)(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. 551.102(30)(30) “Sign” means to do any of the following, with present intent to authenticate or adopt a record: 551.102(30)(b)(b) To attach or logically associate with the record an electronic symbol, sound, or process. 551.102(31)(31) “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. 551.102 AnnotationA profit-sharing agreement between management and labor in exchange for wage concessions was not a security. Fore Way Express, Inc. v. Bast, 178 Wis. 2d 693, 505 N.W.2d 408 (Ct. App. 1993). 551.102 AnnotationThere is a presumption that every note is a security, which may be rebutted by showing that the note falls within or closely resembles the family of instruments deemed not to be securities. Family resemblance is determined by examining four factors: 1) the motivations of a reasonable seller and buyer; 2) the note’s plan of distribution; 3) the reasonable expectations of the investing public; and 4) whether other risk-reducing factors exist, making unnecessary the application of the securities laws to protect the public. State v. McGuire, 2007 WI App 139, 302 Wis. 2d 688, 735 N.W.2d 555, 05-2832. 551.102 AnnotationWhen a certificate of stock was mailed to the plaintiff in Wisconsin, and extensive solicitation was conducted by the defendants in Wisconsin, there was an “offer” within former s. 551.02 (11) (b), 1969 stats. Since the securities were neither registered in Wisconsin nor exempt from registration, the plaintiff was entitled to rescind the transaction and recover the purchase price of the securities, plus costs. Hardtke v. Love Tree Corp., 386 F. Supp. 1085 (1975). 551.102 AnnotationAn “offer to sell” under former s. 551.02 (11) (b), 1973 stats., was made when the defendant gave an unexecuted partnership agreement to the plaintiff implicitly inviting the plaintiff to return it completed as to form and amount. Feitler v. Midas Associates, 418 F. Supp. 735 (1976). 551.102 NoteNOTE: The above annotations refer to ch. 551 as it existed prior to its repeal and recreation by 2007 Wis. Act 196. 551.103551.103 References to federal statutes. “Securities Act of 1933” (15 USC 77a et seq.), “Securities Exchange Act of 1934” (15 USC 78a et seq.), “Public Utility Holding Company Act of 1935” (15 USC 79 et seq.), “Investment Company Act of 1940” (15 USC 80a-1 et seq.), “Investment Advisers Act of 1940” (15 USC 80b-1 et seq.), “Employee Retirement Income Security Act of 1974” (29 USC 1001 et seq.), “National Housing Act” (12 USC 1701 et seq.), “Commodity Exchange Act” (7 USC 1 et seq.), “Internal Revenue Code” (26 USC 1 et seq.), “Securities Investor Protection Act of 1970” (15 USC 78aaa et seq.), “Securities Litigation Uniform Standards Act of 1998” (112 Stat. 3227), “Small Business Investment Act of 1958” (15 USC 661 et seq.), and “Electronic Signatures in Global and National Commerce Act” (15 USC 7001 et seq.) mean those statutes and the rules and regulations adopted under those statutes, as in effect on the date of enactment of this chapter, or as later amended. 551.103 HistoryHistory: 2007 a. 196. 551.104551.104 References to federal agencies. A reference in this chapter to an agency or department of the United States is also a reference to a successor agency or department. 551.104 HistoryHistory: 2007 a. 196. 551.105551.105 Electronic records and signatures. This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, but does not modify, limit, or supersede section 101 (c) of that act (15 USC 7001 (c)) or authorize electronic delivery of any of the notices described in section 103 (b) of that act (15 USC 7003 (b)). This chapter authorizes the filing of records and signatures, when specified by provisions of this chapter or by a rule adopted or order issued under this chapter, in a manner consistent with section 104 (a) of that act (15 USC 7004 (a)). 551.105 HistoryHistory: 2007 a. 196. EXEMPTIONS FROM REGISTRATION
OF SECURITIES
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