PURPOSE: This rule identifies practices in the securities business which are generally associated with schemes to manipulate.

1. (1) A broker-dealer or agent who engaged in one (1) or more of the following practices shall be deemed to have engaged in an “act, practice or course of business which operates or would operate as a fraud” as used in section 409.5-501 of the Missouri Securities Act of 2003 (the Act). This rule is not intended to be all inclusive and acts or practices not enumerated in this rule may also be deemed fraudulent:

   1. (A) Entering into a transaction with a customer in any security at an unreasonable price or at a price not reasonably related to the current market price of the security or receiving an unreasonable commission or profit;
   2. (B) Contradicting or negating the importance of any information contained in a prospectus or other offering materials with intent to deceive or mislead or using any advertising or sales presentation in a deceptive or misleading manner;
   3. (C) In connection with the offer, sale or purchase of a security, falsely leading a customer to believe that the broker-dealer or agent is in possession of material, nonpublic information which would have an impact on the value of the security;
   4. (D) In connection with the solicitation of a sale or purchase of a security, engaging in a pattern or practice of making contradictory recommendations to different investors of similar investment objective for some to sell and others to purchase the same security, at or about the same time, when not justified by the particular circumstances of each investor;
   5. (E) Failing to make a bona fide public offering of all the securities allotted to a broker-dealer for distribution by, among other things—1) transferring securities to a customer, another broker-dealer or a fictitious account with the understanding that those securities will be returned to the broker-dealer or its nominees, or 2) parking or withholding securities;

   6. (F) Although nothing in this rule precludes application of the general anti-fraud provisions against anyone for practices similar in nature to the practices discussed as follows, the following paragraphs specifically apply only in connection with solicited offers or sales of designated securities in transactions not exempted in the following:

      1. 1. Failing to disclose at the time of solic-

itation, in either a principal or agency transaction, the price at which the broker-dealer is currently selling or offering to sell the designated security and the price at which the broker-dealer is currently buying or offering to buy the designated security, and failing to disclose those prices, which were in effect at the time of execution, on the trade confirmation of the transaction;

1. 2. Failing to disclose, at the time of

solicitation and on the trade confirmation, all compensation to be paid to the agent as a result of the transaction;

1. 3. In connection with a principal trans-

action by a market maker, failing to disclose, both at the time of solicitation and on the confirmation, a short inventory position in the firm’s account of more than five percent (5%) of the issued and outstanding shares of that class of securities of the issuer;

1. 4. Conducting sales contests solely with

respect to a particular security;

1. 5. Failing or refusing to promptly exe-

cute sell orders on behalf of a customer;

1. 6. Soliciting a secondary market trans-

action when there has not been a bona fide distribution in the primary market;

1. 7. Engaging in a pattern of enhancing

the compensation of an agent with respect to sales and purchases in the same security;

1. 8. In connection with the solicitation of

a sale of an equity security, or a security containing an equity component, in which the difference between the bid and ask price is twenty-five percent (25%) or more of the ask price, to fail to—

1. A. Disclose to the customer the bid

and ask price of the designated security as well as its spread in both percentage and dollar amounts at the time of solicitation; and

1. B. Include with the confirmation, in a

form satisfactory to the commissioner, written explanation of the bid and ask price;

1. 9. For the purposes of subsection (1)(F),

the following shall be exempt transactions:

1. A. Transactions in which the price of

the designated security is five dollars ($5) or and Investment Adviser Representatives

more, provided, however, that if the designated security is a unit composed of one (1) or more securities, the unit price divided by the number of components of the unit other than warrants, options, rights or similar securities must be five dollars ($5) or more, and any component of the unit that is a warrant, option, right or similar security or a convertible security must have an exercise price or conversion price of five dollars ($5) or more;

1. B. Transactions that are not recom-

mended by the broker-dealer;

1. C. Transactions by a broker-dealer—

   1. (I) Whose commissions, commis-

sion equivalents and mark-ups from transactions in designated securities during each of the immediately preceding three (3) months, and during eleven (11) or more of the preceding twelve (12) months, did not exceed five percent (5%) of its total commissions, commission-equivalents and mark-ups from transactions in securities during those months; and

1. (II) Who has not been a market

maker in the designated security that is the subject of the transaction in the immediately preceding twelve (12) months; and

1. D. Any transaction(s) that, upon prior

written request or upon its own motion, the commissioner conditionally or unconditionally exempts as not encompassed within the purposes of subsection (1)(F); and

1. 10. For the purposes of subsection

(1)(F)—

1. A. The term designated security shall

mean any equity security other than a security—

1. (I) Registered, or approved for reg-

istration upon notice of issuance, on a national securities exchange recognized under 409.2-201(6), RSMo;

1. (II) Exempted as a foreign issuer

pursuant to 15 CSR 30-54.260;

1. (III) Authorized, or approved for

authorization upon notice of issuance, for quotation in the National Market System of the National Association of Securities Dealers Automated Quotation System;

1. (IV) Issued by an investment com-

pany registered under the Investment Company Act of 1940;

1. (V) That is a put option or call

option issued by The Options Clearing Corporation; or

1. (VI) Whose issuer has net tangible

assets in excess of four (4) million dollars, as demonstrated by financial statements dated less than fifteen (15) months previously that the broker-dealer has reviewed and has a reasonable basis to believe on the date of the transaction with the person, there have been no adverse changes to the issuer’s most current financial statement and—

1. (a) In the event the issuer is

other than a foreign private issuer, the most recent financial statements for the issuer have been audited and reported on by an independent public accountant in accordance with the provisions of 17 CFR 210.2.02; or

1. (b) In the event the issuer is a

foreign private issuer, are the most recent financial statements for the issuer that have been filed with the commissioner, furnished to the commissioner pursuant to 17 CFR 240.12g3-2(b) or prepared in accordance with generally accepted accounting principles in the country of incorporation, audited in compliance with the requirements of that jurisdiction and reported on by an accountant duly registered and in good standing in accordance with the regulations of that jurisdiction;

1. (G) Effecting any transaction in, or inducing the purchase or sale of any security by means of any manipulative, deceptive or other fraudulent device or contrivance including, but not limited to, the use of boiler-room tactics or use of fictitious or nominee accounts; and
2. (H) Failure to comply with any prospectus delivery requirement promulgated under federal law.

AUTHORITY: sections 409.2-201, 409.4-412, 409.5-501 and 409.6-605, RSMo Supp. 2003.* Original rule filed March 27, 1989, effective June 12, 1989. Amended: Filed June 29, 1990, effective Dec. 31, 1990. Emergency amendment filed Aug. 27, 2003, effective Sept. 12, 2003, expired March 9, 2004. Amended: Filed Aug. 28, 2003, effective Feb. 29, 2004.

*Original authority: 409.2-201, RSMo 2003; 409.4-412, RSMo 2003; 409.5-501, RSMo 2003.