Current through Register Vol. 50, page 114, March 25, 2024
Each investment adviser registered or required to be registered under chapter 41-31 B shall make and keep true, accurate, and current the following books, ledgers, and records:
(1) A journal or journals, including cash receipts and disbursements records, and any other records of original entry forming the basis of entries in any ledger.
(2) General and auxiliary ledgers (or other comparable records) reflecting asset, liability, reserve, capital, income and expense accounts.
(3) A memorandum of each order given by the investment adviser for the purchase or sale of any security, of any instruction received by the investment adviser from the client concerning the purchase, sale, receipt or delivery of a particular security, and of any modification or cancellation of any such order or instruction. The memoranda shall show the terms and conditions of the order, instruction, modification, or cancellation; shall identify the person connected with the investment adviser who recommended the transaction to the client and the person who placed the order; and shall show the account for which entered, the date of entry, and the bank, broker-dealer by or through whom executed where appropriate. Orders entered pursuant to the exercise of discretionary power shall be so designated.
(4) All check books, bank statements, canceled checks, and cash reconciliations of the investment adviser.
(5) All bills or statements (or copies of), paid or unpaid, relating to the investment adviser's business.
(6) All trial balances, financial statements, and internal audit working papers relating to the investment adviser's business.
(7) Originals of all written communications received and copies of all written communications sent by the investment adviser relating to:
(a) Any recommendation made or proposed to be made and any advice given or proposed to be given;
(b) Any receipt, disbursement or delivery of funds or securities; or
(c) The placing or execution of any order to purchase or sell any security, provided, however,
(i) That the investment adviser is not required to keep any unsolicited market letters and other similar communications of general public distribution not prepared by or for the investment adviser; and
(ii) That if the investment adviser sends any notice, circular, or other advertisement offering any report, analysis, publication, or other investment advisory service to more than ten persons, the investment adviser is not required to keep a record of the names and addresses of the persons to whom it was sent; except that if the notice, circular, or advertisement is distributed to persons named on any list, the investment adviser shall retain with the copy of the notice, circular, or advertisement a memorandum describing the list and its source.
(8) A list or other record of all accounts which list identifies the accounts in which the investment adviser is vested with any discretionary power with respect to the funds, securities, or transactions of any client.
(9) A copy of all powers of attorney and other evidences of the granting of any discretionary authority by any client to the investment adviser.
(10) A copy in writing of each agreement entered into by the investment adviser with any client, and all other written agreements otherwise relating to the investment adviser's business as an investment adviser.
(11) A file containing a copy of each notice, circular, advertisement, newspaper article, investment letter, bulletin, or other communication including by electronic media that the investment adviser circulates or distributes, directly or indirectly, to two or more persons (other than persons connected with the investment adviser), and if the notice, circular, advertisement, newspaper article, investment letter, bulletin, or other communication including by electronic media recommends the purchase or sale of a specific security and does not state the reasons for the recommendation, a memorandum of the investment adviser indicating the reasons for the recommendation.
(12)
(a) A record of every transaction in a security in which the investment adviser or any advisory representative (as hereinafter defined) of the investment adviser has, or by reason of any transaction acquires, any direct or indirect beneficial ownership, except:
(i) Transactions effected in any account over which neither the investment adviser nor any advisory representative of the investment adviser has any direct or indirect influence or control; and
(ii) Transactions in securities which are direct obligations of the United States. The record shall state the title and amount of the security involved; the date and nature of the transaction (i.e. purchase, sale or other acquisition or disposition); the price at which it was effected; and the name of the broker-dealer or bank with or through whom the transaction was effected. The record may also contain a statement declaring that the reporting or recording of any transaction may not be construed as an admission that the investment adviser or advisory representative has any direct or indirect beneficial ownership in the security. A transaction shall be recorded not later than ten days after the end of the calendar quarter in which the transaction was effected.
(b) For purposes of § 20:08:05:23(12) the following definitions apply:
(i) The term, advisory representative, means any partner, officer, or director of the investment adviser; any employee who participates in any way in the determination of which recommendations shall be made; any employee who, in connection with his duties, obtains any information concerning which securities are being recommended prior to the effective dissemination of the recommendations; and any of the following persons who obtain information concerning securities recommendations being made by the investment adviser prior to the effective dissemination of the recommendations:
(A) Any person in a control relationship to the investment adviser;
(B) Any affiliated person of a controlling person; and
(C) Any affiliated person of an affiliated person.
(ii) The term, control, means the power to exercise a controlling influence over the management of policies of a company, unless such power is solely the result of an official position with such company. Any person who owns beneficially, either directly or through one or more controlled companies, more than 25 percent of the voting securities of a company shall be presumed to control such company.
(c) An investment adviser may not be deemed to have violated the provisions of § 20:08:05:23(12) because of the failure to record securities transactions of any advisory representative if the investment adviser establishes that it instituted adequate procedures and used reasonable diligence to obtain promptly reports of all transactions required to be recorded.
(13)
(a) Notwithstanding the provisions of § 20:08:05:23(12) above, where the investment adviser is primarily engaged in a business or businesses other than advising investment advisory clients, a record must be maintained of every transaction in a security in which the investment adviser or any advisory representative (as hereinafter defined) of the investment adviser has, or by reason of any transaction acquires, any direct or indirect beneficial ownership, except:
(i) Transactions effected in any account over which neither the investment adviser nor any advisory representative of the investment adviser has any direct or indirect influence or control; and
(ii) Transactions in securities which are direct obligations of the United States.
The record shall state the title and amount of the security involved; the date and nature of the transaction (i.e. purchase, sale, or other acquisition or disposition); the price at which it was effected; and the name of the broker-dealer or bank with or through whom the transaction was effected. The record may also contain a statement declaring that the reporting or recording of any transaction shall not be construed as an admission that the investment adviser or advisory representative has any direct or indirect beneficial ownership in the security. A transaction shall be recorded not later than ten days after the end of the calendar quarter in which the transaction was effected.
(b) An investment adviser is "primarily engaged in a business or businesses other than advising investment advisory clients" when, for each of its most recent three fiscal years or for the period of time since organization, whichever is lesser, the investment adviser derived, on an unconsolidated basis, more than 50 percent of:
(i) Its total sales and revenues; and
(ii) Its income (or loss) before income taxes and extraordinary items, from such other business or businesses.
(c) For purposes of § 20:08:05:23(13) the following definitions apply:
(i) The term, advisory representative, when used in connection with a company primarily engaged in a business or businesses other than advising investment advisory clients, means any partner, officer, director, or employee of the investment adviser who participates in any way in the determination of which recommendation shall be made, or whose functions or duties relate to the determination of which securities are being recommended prior to the effective dissemination of the recommendations; and any of the following persons, who obtain information concerning securities recommendations being made by the investment adviser prior to the effective dissemination of such the recommendations or of the information concerning the recommendations:
(A) Any person in a control relationship to the investment adviser;
(B) Any affiliated person of a controlling person; and
(C) Any affiliated person of an affiliated person.
(ii) The term, control, means the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company. Any person who owns beneficially, either directly or through one or more controlled companies, more than 25 percent of the voting securities of a company shall be presumed to control such company.
(d) An investment adviser may not be deemed to have violated the provisions of § 20:08:05:23(13) because of the failure to record securities transactions of any advisory representative if the investment adviser establishes that it instituted adequate procedures and used reasonable diligence to obtain promptly reports of all transactions required to be recorded.
(14) A copy of each written statement and each amendment or revision, given or sent to any client or prospective client of the investment adviser in accordance with the provisions of §
20:08:05:26, and a record of the dates that each written statement, and each amendment or revision, was given, or offered to be given, to any client or prospective client who subsequently becomes a client.
(15) For each client that was obtained by the adviser by means of a solicitor to whom a cash fee was paid by the adviser:
(a) Evidence of a written agreement to which the adviser is a party related to the payment of such fee;
(b) A signed and dated acknowledgement of receipt from the client evidencing the client's receipt of the investment adviser's disclosure statement and a written disclosure statement of the solicitor; and
(c) A copy of the solicitor's written disclosure statement. The written agreement, acknowledgment, and solicitor disclosure statement will be considered to be in compliance if such documents are in compliance with Rule 275.206(4)-3 of the Investment Advisers Act of 1940. For purposes of this rule, the term, solicitor, means any person or entity who, for compensation, acts as an agent of an investment adviser in referring potential clients.
(16) All accounts, books, internal working papers, and any other records or documents that are necessary to form the basis for or demonstrate the calculation of the performance or rate of return of all managed accounts or securities recommendations in any notice, circular, advertisement, newspaper article, investment letter, bulletin, or other communication, including electronic media that the investment adviser circulates or distributes, directly or indirectly, to two or more persons (other than persons connected with the investment adviser). However, with respect to the performance of managed accounts, the retention of all account statements, if they reflect all debits, credits, and other transactions in a client's account for the period of the statement, and all worksheets necessary to demonstrate the calculation of the performance or rate of return of all manager accounts shall be deemed to satisfy the requirements of this paragraph.
(17) A file containing a copy of all written communications received or sent regarding any litigation involving the investment adviser or any investment adviser representative or employee, and regarding any written customer or client complaint.
(18) Written information about each investment advisory client that is the basis for making any recommendation or providing any investment advice to such client.
(19) Written procedures to supervise the activities of employees and investment adviser representatives that are reasonably designed to achieve compliance with applicable securities laws and regulations.
(20) A file containing a copy of each document (other than any notices of general dissemination) that was filed with or received from any state or federal agency or self-regulatory organization and that pertains to the registrant or its investment adviser representatives as that term is defined in § 20:08:05:23(12)(b), which file shall contain all applications, amendments, renewal filings, and correspondence.
(21) Copies, with original signatures of the investment adviser's appropriate signatory and the investment adviser representative, of each initial Form U4 and each amendment to the Disclosure Reporting Pages on Form U4 must be retained by the investment adviser (filing on behalf of the investment adviser representative) and must be made available for inspection upon regulatory request.
(22) Where the adviser inadvertently held or obtained a client's securities or funds and returned them to the client within three business days or has forwarded third party checks within 24 hours the adviser will be considered as not having custody but shall keep a ledger or other listing of all securities or funds held or obtained, including the following information:
(a) Issuer;
(b) Type of security and series;
(c) Date of issue;
(d) For debt instruments, the denomination, interest rate, and maturity date;
(e) Certificate number, including alphabetical prefix or suffix;
(f) Name in which registered;
(g) Date given to the adviser;
(h) Date sent to client or sender;
(i) Form of delivery to client or sender, or copy of the form of delivery to client or sender; and
(j) Mail confirmation number, if applicable, or confirmation by client or sender of the fund's or security's return.
(23) If an investment adviser obtains possession of securities that are acquired from the issuer in a transaction or chain of transactions not involving any public offering that comply with the exception from custody under §
20:08:05:25(10)(b), the adviser shall keep the following records:
(a) A record showing the issuer or current transfer agent's name, address, phone number, and other applicable contract information pertaining to the party responsible for recording client interests in the securities; and
(b) A copy of any legend, shareholder agreement, or other agreement showing that those securities that are transferable only with prior consent of the issuer or holders of the outstanding securities of the issuer.
(24) If an investment adviser has custody, as that term is defined in §
20:08:05:25(11), the records required to be made and kept under § 20:08:05:23(1) to (23), inclusive, shall include:
(a) A copy of any documents executed by the client (including a limited power of attorney) under which the adviser is authorized or permitted to withdraw a client's funds or securities maintained with a custodian upon the adviser's instruction to the custodian;
(b) A journal or other record showing all purchases, sales, receipts, and deliveries of securities (including certificate numbers) for all accounts and all other debits and credits to the accounts;
(c) A separate ledger account for each client showing all purchases, sales, receipts, and deliveries of securities, the date and price of each purchase and sale, and all debits and credits;
(d) Copies of confirmations of all transactions effected by or for the account of any client;
(e) A record for each security in which any client has a position, which record shall show the name of each client having any interest in each security, the amount or interest of each client, and the location of each security;
(f) A copy of each of the client's quarterly account statements, as generated and delivered by the qualified custodian. If the adviser also generates a statement that is delivered to the client, the adviser shall also maintain copies of such statements along with the date such statements were sent to the clients;
(g) If applicable to the adviser's situation, a copy of the special examination report verifying the completion of the examination by an independent certified public accountant and describing the nature and extent of the examination;
(h) A record of any finding by the independent certified public accountant of any material discrepancies found during the examination; and
(i) If applicable, evidence of the client's designation of an independent representative.
(25) If an investment adviser has custody because it advises a pooled investment vehicle, the adviser shall also keep the following records;
(a) True, accurate, and current account statements;
(b) Where the adviser complies with §
20:08:05:25(10)(c) the records required to be made and kept shall include:
(i) The date(s) of the audit;
(ii) A copy of the audited financial statements; and
(iii) Evidence of the mailing of the audited financial to all limited partners, members, or other beneficial owners within 120 days of the end of its fiscal year.
(c) If the adviser complies with §
20:08:05:25(8) the records required to be made and kept shall include:
(i) A copy of the written agreement with the independent party reviewing all fees and expenses, indicating the responsibilities of the independent third party.
(ii) Copies of all invoices and receipts showing approval by the independent party for payment through the qualified custodian.
(26) If an investment adviser has custody because it is acting as the trustee for a beneficial trust as described in §
20:08:05:25(10)(e), the investment adviser shall also keep the following records until the account is closed or the adviser is no longer acting as trustee:
(a) A copy of the written statement given to each beneficial owner setting forth a description of the requirements of §
20:08:05:25(1) to (9), inclusive, and the reason why the adviser will not be complying with those requirements; and
(b) A written acknowledgement signed and dated by each beneficial owner, and evidencing receipt of the statement required under § 20:08:05:23(26)(a).
(27) Each investment adviser subject to § 20:08:05:23(1) to (23), inclusive, who renders any investment supervisory or management service to any client shall, with respect to the portfolio being supervised or managed and to the extent that the information is reasonably available to or obtainable by the investment adviser, make and keep true, accurate and current:
(a) Records showing separately for each client the securities purchased and sold, and the date, amount, and price of each purchase and sale.
(b) For each security in which any client has a current position, information from which the investment adviser can promptly furnish the name of each client, and the current amount or interest of the client.
(28) Any books or records required by § 20:08:05:23 may be maintained by the investment adviser in such manner that the identity of any client to whom the investment adviser renders investment supervisory services is indicated by numerical or alphabetical code or some similar designation.
(29) Each investment adviser subject to § 20:08:05:23(1) to (23), inclusive, shall preserve the following records in the manner prescribed:
(a) All books and records required to be made under the provisions of § 20:08:05:23(1) to (27)(a), inclusive, except for books and records required to be made under the provisions of paragraphs § 20:08:05:23(11) and (16), shall be maintained and preserved in an easily accessible place for a period of not less than five years from the end of the fiscal year during which the last entry was made on record, the first two years in the principal office of the investment adviser.
(b) Partnership articles and any amendments, articles of incorporation, charters, minute books, and stock certificate books of the investment adviser and of any predecessor, shall be maintained in the principal office of the investment adviser and preserved until at least three years after termination of the enterprise.
(c) Books and records required to be made under the provisions of § 20:08:05:23(11) and (16) shall be maintained and preserved in an easily accessible place for a period of not less than five years, the first two years in the principal office of the investment adviser, from the end of the fiscal year during which the investment adviser last published or otherwise disseminated, directly or indirectly, the notice, circular, advertisement, newspaper article, investment letter, bulletin, or other communication including by electronic media.
(d) Books and records required to be made under the provisions of § 20:08:05:23(17) to (22), inclusive, shall be maintained and preserved in an easily accessible place for a period of not less than five years from the end of the fiscal year during which the last entry was made on such record, the first two years in the principal office of the investment adviser, or for the time period during which the investment adviser was registered or required to be registered in the state, if less.
(e) Notwithstanding other record preservation requirements of § 20:08:05:23, the following records or copies shall be required to be maintained at the business location of the investment adviser from which the customer or client is being provided or has been provided with investment advisory services:
(i) Records required to be preserved under §§ 20:08:05:23(3), 20:08:05:23(7) to (10), inclusive, 20:08:05:23(14) and (15), 20:08:05:23(17) to (19), inclusive, and 20:08:05:23(24 to 27), inclusive; and
(ii) The records or copies required under § 20:08:05:23(11) and (16) which records or related records identify the name of the investment adviser representative providing investment advice from that business location, or which identify the business location's physical address, mailing address, electronic mailing address, or telephone number. The records will be maintained for the period described in § 20:08:05:23(29).
(30) An investment adviser subject to § 20:08:05:23(1) to (23), inclusive, before ceasing to conduct or discontinuing business as an investment adviser shall arrange for and be responsible for the preservation of the books and records required to be maintained and preserved under § 20:08:05:23 for the remainder of the period specified in § 20:08:05:23, and shall notify the director in writing of the exact address where the books and records will be maintained during the period.
(31) Pursuant to § 20:08:05:23(29) the records required to be maintained and preserved may be immediately produced or reproduced, and maintained and preserved for the required time, by an investment adviser on:
(a) Paper or hard copy form as those records are kept in their original form; or
(b) Micrographic media, including microfilm, microfiche, or any similar medium; or
(c) Electronic storage media, including any digital storage medium or system that meets the terms of § 20:08:05:23.
(32) The investment adviser must:
(a) Arrange and index the records in a way that permits easy location, access, and retrieval of any particular record;
(b) Provide promptly any of the following that the director (by its examiners or other representatives) may request:
(i) A legible, true, and complete copy of the record in the medium and format in which it is stored;
(ii) A legible, true, and complete printout of the record; and
(iii) Means to access, view, and print the records; and
(iv) Separately store, for the time required for preservation of the original record, a duplicate copy of the record on any medium allowed by § 20:08:05:23.
(33) In the case of records created or maintained on electronic storage media, the investment adviser must establish and maintain procedures:
(a) To maintain and preserve the records, so as to reasonably safeguard them from loss, alteration, or destruction;
(b) To limit access to the records to properly authorized personnel and the director (including its examiners and other representatives); and
(c) To reasonably ensure that any reproduction of a non-electronic original record on electronic storage media is complete, true, and legible when retrieved.
(34) For purposes of § 20:08:05:23, the phrase, investment supervisory services, means the giving of continuous advice as to the investment of funds on the basis of the individual needs of each client; and the phrase, discretionary power, does not include discretion as to the price at which or the time when a transaction is or is to be effected, if, before the order is given by the investment adviser, the client has directed or approved the purchase or sale of a definite amount of the particular security.
(35) Any book or other record made, kept, maintained, and preserved in compliance with Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934, which is substantially the same as the book or other record required to be made, kept, maintained, and preserved under § 20:08:05:23, shall be deemed to be made, kept, maintained, and preserved in compliance with § 20:08:05:23.
(36) Each investment adviser registered or required to be registered in this state and that has its principal place of business in a state other than this state is exempt from the requirements of § 20:08:05:23, if the investment adviser is registered or licensed in such state and is in compliance with such state's recordkeeping requirements.
General Authority: SDCL 47-31B-411, 47-31B-605(a)(1), (2) and (3), 47-31B-605(b).
Law Implemented: SDCL 47-31B-103, 47-31B-411.
