Current through Reg. 49, No. 38; September 20, 2024
(a)
Dealers, investment advisers, dealer agents, and investment adviser
representatives who use the Internet, the World Wide Web, and similar
proprietary or common carrier electronic systems (collectively, the "Internet")
to distribute information on available products and services through certain
communications made on the Internet directed generally to anyone having access
to the Internet, and transmitted through postings on Bulletin Boards, displays
on "Home Pages" or similar methods ("Internet Communications") shall not be
deemed to be a "dealer" in this state for purposes of the Act, §4.D, based
solely on that fact if the following conditions are observed:
(1) The Internet Communication contains a
legend in which it is clearly stated that:
(A) the dealer, investment adviser, dealer
agent, or investment adviser representative in question may only transact
business in this state if first registered, excluded, or exempted from Texas
dealer, investment adviser, dealer agent, or investment adviser representative
registration requirements, as may be; and
(B) follow-up, individualized responses to
persons in Texas by such dealer, investment adviser, dealer agent, or
investment adviser representative that involve either the effecting or
attempting to effect transactions in securities, or the rendering of
personalized investment advice for compensation, as may be, will not be made
absent compliance with Texas dealer, investment adviser, dealer agent, or
investment adviser representative registration requirements, or an applicable
exemption or exclusion;
(2) The Internet Communication contains a
mechanism, including and without limitation, technical "firewalls" or other
implemented policies and procedures, designed reasonably to ensure that prior
to any subsequent, direct communication with prospective customers or clients
in Texas, said dealer, investment adviser, dealer agent, or investment adviser
representative is first registered in Texas or qualifies for an exemption or
exclusion from such requirement. Nothing in this section shall be construed to
relieve a Texas registered dealer, investment adviser, dealer agent, or
investment adviser representative from any applicable securities registration
requirement in Texas;
(3) The
Internet Communication does not involve either effecting or attempting to
effect transactions in securities, or the rendering of personalized investment
advice for compensation, as may be, in Texas over the Internet, but is limited
to the dissemination of general information on products and services;
and
(4) In the case of a dealer
agent or investment adviser representative:
(A) the affiliation with the dealer or
investment adviser of the dealer agent or investment adviser representative is
prominently disclosed within the Internet Communication;
(B) the dealer or investment adviser with
whom the dealer agent or investment adviser representative is associated
retains responsibility for reviewing and approving the content of any Internet
Communication by a dealer agent or investment adviser representative;
(C) the dealer or investment adviser with
whom the dealer agent or investment adviser representative is associated first
authorizes the distribution of information on the particular products and
services through the Internet Communication; and
(D) in disseminating information through the
Internet Communication, the dealer agent or investment adviser representative
acts within the scope of the authority granted by the dealer or investment
adviser.
(b)
The position expressed in this section extends to state dealer, investment
adviser, dealer agent, and investment adviser representative registration
requirements only, and does not excuse compliance with applicable securities
registration, antifraud, or related provisions.
(c) Nothing in this section shall be
construed to affect the activities of any dealer, investment adviser, dealer
agent, or investment adviser representative engaged in business in this state
that is not subject to the jurisdiction of the Securities Commissioner as a
result of the National Securities Markets Improvement Act of 1996, as
amended.
