ORS 59.015
Definitions for Oregon Securities Law


As used in the Oregon Securities Law, unless the context otherwise requires:

(1)

“Broker-dealer” means a person who engages, all or part of the time, in effecting transactions in securities for the account of others or for the person’s own account. “Broker-dealer” does not include:

(a)

An issuer effecting sales in its own securities;

(b)

The following institutions:

(A)

A financial institution or trust company, as defined in ORS 706.008 (Additional definitions for Bank Act); or

(B)

A financial holding company or a bank holding company, as defined in ORS 706.008 (Additional definitions for Bank Act), holding an institution described in subparagraph (A) of this paragraph; a savings and loan holding company as defined in section 408 of the National Housing Act, 12 U.S.C. section 1730a, holding an association described in subparagraph (A) of this paragraph; the subsidiaries and affiliates of the financial holding company, bank holding company or savings and loan holding company; or subsidiaries and affiliates of institutions described in subparagraph (A) of this paragraph, if the appropriate statutory regulatory authority is exercising control over, or is regulating or supervising the person in the sale of securities in accord with the purposes of the Oregon Securities Law;

(c)

A person who has no place of business in this state effecting transactions in this state exclusively with broker-dealers;

(d)

A person effecting sales exempted by ORS 59.035 (Transactions exempt from registration);

(e)

A salesperson;

(f)

A person effecting sales of securities owned by the person registered for sale pursuant to ORS 59.065 (Registration procedures);

(g)

A person effecting sales of securities exempted by ORS 59.025 (Securities exempt from registration) (7);

(h)

A person licensed as a mortgage banker or a mortgage broker under ORS 86A.095 (Short title) to 86A.198 (Materials in languages other than English) when effecting sales of securities involving real estate paper registered for sale pursuant to ORS 59.065 (Registration procedures); or

(i)

A person designated by rule or order by the director.

(2)

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

(3)

“Director” means the Director of the Department of Consumer and Business Services.

(4)

“Federal covered investment adviser” means a person who is registered as an investment adviser pursuant to section 203 of the Investment Advisers Act of 1940, as amended.

(5)

“Federal covered security” means any security that is a covered security under section 18 of the Securities Act of 1933, as amended, and for which such Act provides that the director may require filing of a notice and payment of a fee.

(6)

“Fraud,” “deceit” and “defraud” are not limited to common-law deceit.

(7)

“Guaranteed” means guaranteed as to payment of principal, interest or dividends.

(8)

Intentionally left blank —Ed.

(a)

“Investment adviser representative” means any partner, officer, director or person occupying a similar status or performing a similar function, or other individual, except clerical or ministerial personnel, who is employed by or associated with:

(A)

A state investment adviser that is licensed or required to be licensed in this state and who does any of the following:
(i)
Makes any recommendations or otherwise renders advice regarding securities;
(ii)
Manages accounts or portfolios of clients;
(iii)
Determines which recommendation or advice regarding securities should be given;
(iv)
Solicits, offers or negotiates for the sale of or sells investment advisory services; or
(v)
Supervises employees acting under this subparagraph; or

(B)

A federal covered investment adviser, subject to the limitations of section 203A of the Investment Advisers Act of 1940, as amended, as the director may designate by rule or order.

(b)

“Investment adviser representative” does not include a person designated by rule or order of the director.

(9)

“Issuer” means a person who issues, proposes to issue or has issued a security and includes an issuer to be formed. 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 persons performing similar functions or of the fixed, restricted management or unit type, the “issuer” is the person or persons performing the acts and assuming the duties of depositor or manager pursuant to the provisions of the trust or other instrument or agreement under which the security is issued.

(10)

“License” means a license as provided under the Oregon Securities Law.

(11)

“Mortgage banker” means a mortgage banker as defined in ORS 86A.100 (Definitions).

(12)

“Mortgage broker” means a mortgage broker as defined in ORS 86A.100 (Definitions).

(13)

“Offer” or “offer to sell” includes every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value. Every sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer, as well as every sale or offer of a security which 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.

(14)

“Person” includes an individual, a joint venture, a partnership, a cooperative, a limited liability company, an association, a joint stock company, a corporation, a trust, an unincorporated organization or a government or political subdivision of a government.

(15)

“Real estate paper” means any obligation secured or purportedly secured by an interest in real property. Real estate paper includes, but is not limited to, mortgage-backed securities, collateralized mortgage obligations, and real estate mortgage investment conduits.

(16)

“Registered” means registered as provided in the Oregon Securities Law.

(17)

Intentionally left blank —Ed.

(a)

“Sale” or “sell” includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value. Any security given or delivered with, or as a bonus on account of, a purchase of securities or any other thing shall constitute a part of the subject of the purchase and shall have been offered and sold for value. A gift of assessable stock by or for any issuer or promoter shall constitute a sale.

(b)

For purposes of the authority of the director under ORS 59.245 (Investigations) and 59.255 (Enjoining violations), the terms “sale” and “sell” include the terms “offer” and “offer to sell.”

(c)

“Sale” and “sell” do not include:

(A)

A bona fide pledge or loan of securities;

(B)

A bona fide security dividend, whether the corporation distributing the dividend is the issuer of the security or not, if nothing of value is given by the recipients for the dividend other than payments in connection with the elimination of fractional shares; or

(C)

An act incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims or property interests, or partly in such exchange and partly for cash.

(18)

Intentionally left blank —Ed.

(a)

“Salesperson” means a person, other than a broker-dealer, who represents or purports to represent a broker-dealer, issuer or owner of securities in effecting or attempting to effect in any manner transactions in securities.

(b)

“Salesperson” does not include:

(A)

A person who represents an issuer in effecting sales in a security exempted by ORS 59.025 (Securities exempt from registration);

(B)

A person who represents an issuer in effecting sales exempted by ORS 59.035 (Transactions exempt from registration);

(C)

A person who represents an issuer in effecting sales with existing partners or directors of the issuer, if no commission or other remuneration is paid or given directly or indirectly for soliciting any person in this state;

(D)

An employee of an institution or organization described in subsection (1)(b) of this section to the extent the employee is not a dual employee of the institution and a broker-dealer;

(E)

A person effecting transactions in this state limited to those transactions described in section 15(h)(2) and (3) of the Securities Exchange Act of 1934, as amended; or

(F)

A person designated by rule or order by the director.

(c)

A person who is a partner, director or officer of a broker-dealer, issuer or owner of securities, or a person who occupies a similar status or performing similar functions, is a “salesperson” only if the person otherwise comes within this definition.

(19)

Intentionally left blank —Ed.

(a)

“Security” means a note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in a pension plan or profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, variable annuity, 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 such title or lease, real estate paper sold by a broker-dealer, mortgage banker, mortgage broker or a person described in subsection (1)(b) of this section to persons other than persons enumerated in ORS 59.035 (Transactions exempt from registration) (4), or, in general, any interest or instrument commonly known as a “security,” or any certificate of interest or participation in, temporary or interim certificates for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing.

(b)

“Security” does not include:

(A)

An insurance or endowment policy or annuity contract, other than a variable 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 some other specified period;

(B)

A beneficial interest in a voluntary inter vivos trust unless the trust is created solely for the purpose of voting or is part of an attempt to evade the provisions of ORS 59.005 (Short title) to 59.505 (Provision of records to law enforcement and certain state agencies); or

(C)

A beneficial interest in a testamentary trust.

(20)

Intentionally left blank —Ed.

(a)

“State investment adviser” means a person who, for compensation:

(A)

Engages all or part of the time of the person, in this state, in the business of advising others, either directly or by mail or through publication or writing, as to the value of securities or as to the advisability of investing in, purchasing or selling securities;

(B)

Engages all or part of the time of the person, in this state, in the business of managing an investment or trading account in securities for other persons; or

(C)

Issues or promulgates, as part of a regular business in this state, analyses or reports concerning securities.

(b)

“State investment adviser” does not include:

(A)

An investment adviser representative;

(B)

An institution or organization described in subsection (1)(b) of this section;

(C)

A licensed broker-dealer whose performance of investment advisory services is solely incidental to the conduct of business as a broker-dealer and who receives no special compensation for such services;

(D)

A salesperson licensed to a broker-dealer whose performance of investment advisory services is solely incidental to that person’s activities as a salesperson and who receives no special compensation for such services;

(E)

A publisher of or contributor to a bona fide newspaper, newsmagazine, investment manual or service, or business or financial publication of general, regular and paid circulation;

(F)

A person whose only clients are federal covered investment advisers, state investment advisers, broker-dealers, mortgage bankers, mortgage brokers, banks, savings institutions or trust companies, insurance companies, investment companies as defined in the Investment Company Act of 1940, as amended, pension or profit-sharing trusts, or other financial institutions or institutional buyers, whether acting for themselves or as trustees;

(G)

A duly licensed or registered lawyer, engineer or accountant whose performance of investment advisory services is solely incidental to the practice of the profession;

(H)

A person whose advice, analyses or reports relate only to securities exempted by ORS 59.025 (Securities exempt from registration) (1);

(I)

A federal covered investment adviser in compliance with ORS 59.165 (Licensing of broker-dealers, investment advisers and salespersons required) (7);

(J)

A person, advising others, that has no place of business in this state and during the preceding 12-month period has had fewer than six clients, other than those persons included in subparagraph (F) of this paragraph, who are residents of this state; or

(K)

Such other persons as the director may by rule or order designate. [1967 c.537 §3; 1971 c.624 §1; 1971 c.641 §1; 1973 c.366 §1; 1975 c.491 §1; 1985 c.349 §1; 1987 c.414 §§69, 69a; 1987 c.603 §1; 1989 c.197 §1; 1991 c.5 §18; 1993 c.158 §1; 1993 c.508 §27; 1993 c.744 §13; 1995 c.93 §26; 1995 c.622 §11; 1997 c.631 §375; 1997 c.772 §1; 1999 c.53 §1; 1999 c.315 §1; 2001 c.104 §14; 2001 c.377 §39a; 2003 c.270 §1; 2007 c.393 §1; 2009 c.259 §20]

Source: Section 59.015 — Definitions for Oregon Securities Law, https://www.­oregonlegislature.­gov/bills_laws/ors/ors059.­html.

Notes of Decisions

Sale of “Dare to be Great” contracts, consisting of series of tapes and group sessions in addition to franchise under which buyer could sell contracts, is “investment contract” covered by Oregon Blue Sky Law. Hurst v. Dare to be Great, Inc., 474 F2d 483 (1973)

Under the “risk capital” test, sales of memberships in a travel club did not constitute “investment contracts,” and were therefore not subject to registration requirements, since initial capital used to initiate club operations was not provided by memberships sold in Oregon. Jet Set Travel Club v. Corp. Commr., 21 Or App 362, 535 P2d 109 (1975)

Sales and leaseback of an apartment complex was an investment contract within the meaning of paragraph (13) (a). Bergquist v. Intl. Realty, Ltd., 272 Or 416, 537 P2d 553 (1975)

The sale of a “fractional interest” in a racehorse is an “investment contract” within the meaning of this section when the purchaser expects to derive a profit to be created solely through the efforts of other persons. Marshall v. Harris, 276 Or 447, 555 P2d 756 (1976)

A limited partnership interest is a “security” subject to the anti-fraud provision of the Oregon Securities Law. Pratt v. Kross, 276 Or 483, 555 P2d 765 (1976)

Transaction whereby plaintiff paid $6,000 to defendant and took back promissory note in defendant’s corporation, with agreement that plaintiff would have option to convert note to 50% interest in new corporation plus 25% interest in defendant’s corporation, constituted “option for the sale of ... a security.” Foelker v. Kwake, 279 Or 379, 568 P2d 1369 (1977)

Transactions in investment scheme which involved Treasury bill “straddles” in which assets of scheme promoter and investors were intermingled, were investment contracts and therefore securities under this section. Black v. Corporation Division, 54 Or App 432, 634 P2d 1383 (1981)

Where investors in land sale scheme did not anticipate playing any significant role in dividing land, recruiting other investors, rezoning or resubdividing the land or obtaining purchasers for resale of property and they executed agreement conferring general management powers on defendant, participatory undivided interests sold by defendant were “investment contracts.” State v. Jacobs, 55 Or App 406, 637 P2d 1377 (1981), Sup Ct review denied

Where plaintiffs purchased gold and silver coins from defendant, coins could be picked up on demand and plaintiffs understood that any profit would depend upon market and not on efforts of defendant, there was neither common enterprise nor expectation of profit to be made through management and control of others and so there was no investment contract within the meaning of this section. Jost v. Locke, 65 Or App 704, 673 P2d 545 (1983), Sup Ct review denied

Facts existed in record for jury to find that transaction in which plaintiff agreed to loan capital for production of film where loan would be repaid or, alternatively, plaintiff would have option to take equity in film was investment contract under this section. Computer Concepts Inc. v. Brandt, 310 Or 706, 801 P2d 800 (1990), Sup Ct review denied

Sales-leaseback agreement providing for above-market rent did not intertwine profits and losses so as to place agreement in category of security. Almaden Plaza Assoc. v. United Trust Fund Ltd. Partnership, 123 Or App 372, 860 P2d 289 (1993), Sup Ct review denied

Agreement in which shares of stock in newly formed company are apportioned among parties for value given is sale of securities. Towery v. Lucas, 128 Or App 555, 876 P2d 814 (1994)

Buyer of securities is not under constructive notice of recorded lien on company assets. Towery v. Lucas, 128 Or App 555, 876 P2d 814 (1994)

Law Review Citations

68 OLR 890 (1989)

59.005
Short title
59.015
Definitions for Oregon Securities Law
59.025
Securities exempt from registration
59.035
Transactions exempt from registration
59.045
Authority of director to deny, withdraw or condition exemptions
59.049
Federal covered securities exempt from registration
59.051
Statutory references to federal law
59.055
Conditions of offer and sale of securities
59.065
Registration procedures
59.070
Amended registration application
59.075
Registration by director
59.085
Conditions imposed on registration
59.095
Approval of plan to issue securities in exchange for other securities, claims or property
59.105
Denial, suspension or revocation of registration
59.115
Liability in connection with sale or successful solicitation of sale of securities
59.125
Effect of notice of offer to repay purchaser
59.127
Liability in connection with purchase or successful solicitation of purchase of securities
59.131
Effect of notice of intent to return unlawfully purchased security
59.135
Fraud and deceit with respect to securities or securities business
59.137
Liability in connection with violation of ORS 59.135
59.145
Effect of notice filing, registration or license
59.155
Director is agent for service of process
59.165
Licensing of broker-dealers, investment advisers and salespersons required
59.175
Procedures for notice filing and licensing
59.185
Expiration of license
59.195
Licensees to keep records
59.205
Grounds for denying, suspending, revoking or imposing condition or restriction on license
59.215
Action against applicant or licensee for act or omission of associate
59.225
Cancellation of license or application
59.235
General supervision over persons dealing in securities
59.245
Investigations
59.255
Enjoining violations
59.265
Procedure when assets or capital of broker-dealer or investment adviser found impaired
59.275
Burden of proof
59.285
Rules
59.295
Notice of orders
59.305
Judicial review of orders
59.315
Oaths and subpoenas in proceedings before director
59.325
Certified copies of documents
59.331
Scope of Attorney General powers
59.335
Application of certain sections
59.345
When offer to sell or buy is made in this state
59.350
Treatment of certain transactions
59.355
Corporations subject to other laws
59.365
Common-law and statutory rights not limited
59.370
Limitation on liability for good faith act or omission
59.451
Prohibition against filing false statement by person under investigation or examination
59.480
Definitions for ORS 59.480 to 59.505
59.485
Required reporting by certain securities professionals of suspected financial exploitation
59.490
Notifications to third parties
59.495
Delay of disbursements
59.500
Limitation on liability
59.505
Provision of records to law enforcement and certain state agencies
59.535
Definitions for ORS 59.535 to 59.585
59.540
Registration in beneficiary form
59.545
Registration in beneficiary form
59.550
Origination of registration in beneficiary form
59.555
Form of registration in beneficiary form
59.560
Effect of registration in beneficiary form
59.565
Ownership on death of owner
59.570
Protection of registering entity
59.575
Nontestamentary transfer on death
59.580
Terms, conditions and forms for registration
59.585
Short title
59.710
Definitions for ORS 59.710 to 59.830
59.720
Application of ORS 59.710 to 59.830 to real estate contracts and brokers
59.730
Making contract involving securities without intending a bona fide sale or purchase
59.740
Conducting bucket shop or repeatedly making forbidden contracts
59.750
Receipt or communication of prices for purpose of forbidden contract
59.760
Reporting false sale of securities with intent to deceive
59.770
Manipulating market by pretended sales
59.780
Broker’s trading against customer’s order
59.790
Insolvent broker-dealer receiving securities from customer
59.800
Pledge or sale by broker-dealer of customer’s securities
59.810
Delivery to customer of true statement of purchase or sale made by broker
59.820
Actions against corporation for second violation
59.830
Self-incrimination by witness
59.991
Criminal penalties for ORS 59.005 to 59.505 and 59.710 to 59.830
59.995
Civil penalties for ORS 59.005 to 59.505 and 59.710 to 59.830
Green check means up to date. Up to date