(a) A licensee shall be deemed to own an eligible security only if the following apply:
(1) The licensee owns the eligible security solely and exclusively in its own right, both of record and beneficially.
(2) The eligible security is not subject to any pledge, lien, or security interest.
(3) The licensee can freely negotiate, assign, or otherwise transfer the eligible security.
(b) Notwithstanding subdivision (a), no licensee shall be deemed not to own an eligible security solely on account of any of the following facts, provided that, but for that fact, the licensee would be deemed to own the eligible security under the provisions of subdivision (a):
(1) The fact that the eligible security is owned of record by a documented nominee of the licensee or by a securities depository.
(2) The fact that the licensee has pledged the eligible security with the United States or any state of the United States to secure payment by the licensee of transmission money.
(3) The fact that the licensee holds the eligible security in a custodial capacity as an agent of its customers in a pooled account titled in the name of the licensee for the benefit of its customers.
(c) The commissioner shall make a determination of the application of paragraph (3) of subdivision (b) based on the following:
(1) The amount, nature, quality, and liquidity of the licensee’s assets.
(2) The amount and nature of the licensee’s liabilities.
(3) The history of the licensee’s compliance with applicable state and federal law.
(Amended by Stats. 2013, Ch. 533, Sec. 6. (AB 786) Effective January 1, 2014.)
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