Note: This rule expired in December 2016 and the SEC has not moved to renew it. It was renewed and functioned for almost two years longer than its original term dictated: See (d) at the end which had set the expiration date at Dec. 31, 2014. We publish this rule for back-reference purposes only.
(a) An investment adviser shall be deemed in compliance with the provisions of Section 206(3) when the adviser directly or indirectly, acting as principal for its own account, sells to or purchases from an advisory client any security if:
(1) The investment adviser exercises no “investment discretion” (as such term is defined in Section 3(a)(35) of the Securities Exchange Act of 1934 (“Exchange Act”), except investment discretion granted by the advisory client on a temporary or limited basis, with respect to the client’s account;
(2) Neither the investment adviser nor any person controlling, controlled by, or under common control with the investment adviser is the issuer of, or, at the time of the sale, an underwriter (as defined in Section 202(a)(20)) of, the security; except that the investment adviser or a person controlling, controlled by, or under common control with the investment adviser may be an underwriter of an investment grade debt security (as defined in paragraph (c) of this section);
(3) The advisory client has executed a written, revocable consent prospectively authorizing the investment adviser directly or indirectly to act as principal for its own account in selling any security to or purchasing any security from the advisory client, so long as such written consent is obtained after written disclosure to the advisory client explaining:
(i) The circumstances under which the investment adviser directly or indirectly may engage in principal transactions;
(ii) The nature and significance of conflicts with its client’s interests as a result of the transactions; and
(iii) How the investment adviser addresses those conflicts;
(4) The investment adviser, prior to the execution of each principal transaction:
(i) Informs the advisory client, orally or in writing, of the capacity in which it may act with respect to such transaction; and
(ii) Obtains consent from the advisory client, orally or in writing, to act as principal for its own account with respect to such transaction;
(5) The investment adviser sends a written confirmation at or before completion of each such transaction that includes, in addition to the information required by Rule 10b–10 under the Exchange Act, a conspicuous, plain English statement informing the advisory client that the investment adviser:
(i) Disclosed to the client prior to the execution of the transaction that the adviser may be acting in a principal capacity in connection with the transaction and the client authorized the transaction; and
(ii) Sold the security to, or bought the security from, the client for its own account;
(6) The investment adviser sends to the client, no less frequently than annually, written disclosure containing a list of all transactions that were executed in the client’s account in reliance upon this section, and the date and price of such transactions;
(7) The investment adviser is a broker-dealer registered under section 15 of the Exchange Act and each account for which the investment adviser relies on this section is a brokerage account subject to the Exchange Act, and the rules thereunder, and the rules of the self-regulatory organization(s) of which it is a member; and
(8) Each written disclosure required by this section includes a conspicuous, plain English statement that the client may revoke the written consent referred to in paragraph (a)(3) of this section without penalty at any time by written notice to the investment adviser.
(b) This section shall not be construed as relieving in any way an investment adviser from acting in the best interests of an advisory client, including fulfilling the duty with respect to the best price and execution for the particular transaction for the advisory client; nor shall it relieve such person or persons from any obligation that may be imposed by Section 206(1) or Section 206(2) of the Advisers Act or by other applicable provisions of the federal securities laws.
(c) For purposes of paragraph (a)(2) of this section, an "investment grade debt security" means a non-convertible debt security that, at the time of sale, is rated in one of the four highest rating categories of at least two nationally recognized statistical rating organizations (as defined in Section 3(a)(62) of the Exchange Act.
(d) This section will expire and no longer be effective on December 31, 2014.