Bill Text: TX HB3425 | 2015-2016 | 84th Legislature | Introduced
Bill Title: Relating to the creation of a intrastate investment market for purposes of trading securities issued under the intrastate crowdfunding exemption from federal securities laws.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2015-04-01 - Left pending in committee [HB3425 Detail]
Download: Texas-2015-HB3425-Introduced.html
By: Parker | H.B. No. 3425 |
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relating to the creation of a intrastate investment market for | ||
purposes of trading securities issued under the intrastate | ||
crowdfunding exemption from federal securities laws. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. SHORT TITLE. This Act may be cited as the "Texas | ||
Investment Market Exchange Act". | ||
SECTION 2. Section 5, The Securities Act (Article 581-23-5, | ||
Vernon's Texas Civil Statutes), is amended by adding subsection (W) | ||
to read as follows: | ||
(W) Creation of Stock Exchange for Securities financed | ||
using the intrastate crowdfunding exemption or other exemption from | ||
federal securities regulation. | ||
(1) Definitions. | ||
(a) "Texas Investment Market" means a person that | ||
is a broker-dealer, is exempt from federal registration under | ||
Section 15(A)(1) of the Securities Exchange Act of 1934, 15 USC § | ||
780, and provides a market or exchange at which transactions in | ||
securities that are sold or offered for sale pursuant to the | ||
intrastate crowdfunding or other federal exemption from securities | ||
regulation take place. As used in this subsection, "market" or | ||
"exchange" includes an online market or exchange or any other | ||
market or exchange operated through an internet portal. | ||
(2) Coordination with federal securities laws. A Texas | ||
investment market that trades securities that have been issued in | ||
reliance on the intrastate crowdfunding or other exemption from | ||
federal securities regulation must also meet all applicable | ||
requirements of the Securities and Exchange Commission relating to | ||
its establishment and operation. | ||
(3) Texas Investment Market; Requirements | ||
(a) Prohibited Activities. | ||
(1) No person may transact business in this | ||
State as a Texas Investment Market unless that person has | ||
registered with the Securities Commission as a Texas Investment | ||
Market. | ||
(2) Disqualifications. A person is not | ||
eligible to own, operate or otherwise manage a Texas Investment | ||
Market if that person has been subject to one of the following | ||
disqualifying events: | ||
(A) has been convicted, within the 5 | ||
years preceding the offering, of any felony or misdemeanor (i) in | ||
connection with the purchase or sale of any security; (ii) | ||
involving the making of any false filing with the SEC or state | ||
securities agency; or (iii) arising out of the conduct of the | ||
business of an underwriter, broker, dealer, municipal securities | ||
dealer, investment advisor or paid solicitor of securities; | ||
(B) is subject to any order, judgment | ||
or decree of any court of competent jurisdiction entered with the | ||
5-year period preceding the offering, that at the time of such | ||
filing, restrains or enjoins such person from engaging or | ||
continuing to engage in any conduct or practice (i) in connection | ||
with the purchase or sale of a security; (ii) involving the making | ||
of any false filing with the SEC or a state securities agency; or | ||
(iii) arising out of the conduct of the business of an underwriter, | ||
broker, dealer, municipal securities dealer, investment advisor or | ||
paid solicitor of purchasers of securities; and | ||
(C) is subject to any agreed order, | ||
final order, settlement agreement or other enforceable directive by | ||
the SEC or a state securities agency entered with the 5-year period | ||
preceding the offering, that at the time of such filing, restrains | ||
or enjoins such person from engaging or continuing to engage in any | ||
conduct or practice (i) in connection with the purchase or sale of a | ||
security; (ii) involving the making of any false filing with the SEC | ||
or a state securities agency; and (iii) arising out of the conduct | ||
of the business of an underwriter, broker, dealer, municipal | ||
securities dealer, investment advisor or paid solicitor of | ||
purchasers of securities; and (iv) arising out of scienter-based | ||
anti-fraud provisions in federal and state anti-fraud laws. | ||
(3) A Texas Investment Market is prohibited | ||
from engaging in the following activities: | ||
(A) selling or otherwise distributing | ||
to any third party personal identifying information of an | ||
individual without his or her written consent; | ||
(B) charging a fee for a securities | ||
transaction conducted through the Texas Investment Market that | ||
exceeds 5% of the value of the transaction, as determined by the | ||
value passed from one user to another in exchange for that security; | ||
(C) dealing in securities options, or | ||
in securities from more than one class in an offering, without | ||
obtaining written acknowledgement from each person involved in the | ||
transaction relating to the nature of the securities transaction. | ||
(4) It is unlawful for any person, in | ||
connection with the organization and operation of a Texas | ||
Investment Market, to directly or indirectly do any of the | ||
following: | ||
(A) employ a device, scheme, or | ||
artifice to defraud; | ||
(B) make an untrue statement of a | ||
material fact or omit to state a material fact; or | ||
(C) engage in an act, practice, or | ||
course of business that operates or would operate as a fraud or | ||
deceit on another person. | ||
(b) Registration. | ||
(1) No less than sixty (60) days prior to | ||
the offering of any securities for trade or sale, the Texas | ||
Investment Market must pay an appropriate filing fee, file a | ||
consent to service of process and file an application on a form and | ||
in a manner approved by the Securities Commissioner. At a minimum, | ||
the written application must contain the following information: | ||
(A) the names, mailing addresses, and | ||
telephone numbers of all individuals who serve as executive | ||
officers of the Texas Investment Market or who are direct or | ||
indirect owners of at least a 20% ownership interest in the Texas | ||
Investment Market; | ||
(B) the uniform resource locator | ||
(URL), if applicable, used primarily by the Texas Investment Market | ||
to effect transactions online; | ||
(C) the rules that have been | ||
established by the Texas Investment Market to provide for the | ||
equitable allocation of reasonable dues, fees, and other charges | ||
among its issuers, investors, and other persons using its | ||
facilities; and | ||
(D) any other information requested | ||
by the Securities Commissioner to make a determination regarding | ||
the registration application. | ||
(2) In considering an application for | ||
registration, the Securities Commissioner shall consider all of the | ||
following factors: | ||
(A) whether the Texas Investment | ||
Market has the capacity to facilitate the transactions contemplated | ||
in this subsection, the rules and orders of the Securities | ||
Commissioner and the rules established by the Texas Investment | ||
Market; | ||
(B) whether any of the individuals | ||
listed in the application have been disqualified pursuant to | ||
subsection (b)(3)(a)(2) or for other good cause; | ||
(C) whether the rules that have been | ||
established by the Texas Investment Market to provide for the | ||
equitable allocation of reasonable dues, fees, and other charges | ||
among its issuers, investors, and other persons using its | ||
facilities are in fact equitable; | ||
(D) whether the rules established by | ||
the Texas Investment Market provide for appropriate discipline for | ||
users that violate its own rules, the rules and regulations of the | ||
Board or this Article; | ||
(E) whether the rules established by | ||
the Texas Investment Market impose any burden of competition or | ||
obstruction to a liquid intrastate securities market that is not | ||
necessary or appropriate to further the purposes of this Article; | ||
and | ||
(F) whether the structure established | ||
by the Texas Investment Market has been designed to (i) protect | ||
against fraud and manipulative behavior, and (ii) to ensure that | ||
its operations do not foster unfair discrimination among issuers, | ||
investors and other persons that interact with the market. | ||
(3) If the information contained in an | ||
application that is filed under subsection (b)(1) is or becomes | ||
inaccurate or incomplete in any material respect, the registrant | ||
shall promptly file a correcting amendment to the application. | ||
(c) Operation. | ||
(1) The Texas Investment Market shall | ||
establish and maintain commercially reasonable measures to limit | ||
access to information concerning any transaction involving the | ||
offer or sale of securities issued pursuant to the intrastate | ||
crowdfunding exemption from securities regulation to Texas | ||
residents; | ||
(2) The Texas Investment Market shall | ||
establish and maintain a secure method of communication through the | ||
internet website that will permit issuers and investors to | ||
communicate with one another; | ||
(3) The Texas Investment Market shall | ||
establish rules that provide for the equitable allocation of dues, | ||
fees, and other charges among its issuers, investors, and other | ||
persons using its facilities, that provide for appropriate | ||
discipline of any person who violates it rules or the rules and | ||
regulations of the Board, that protect against fraud and | ||
manipulative behavior, and that ensure that its operations do not | ||
unfairly discriminate among issuers, investors and other persons | ||
interacting on the market; | ||
(4) The Texas Investment Market shall | ||
establish rules, practices and procedures that address the measures | ||
that will be taken to verify Texas residency of the issuers and | ||
investors engaging in the offer, sale and purchase of securities in | ||
reliance on the intrastate crowdfunding exemption, to ensure that | ||
individuals are not disqualified from trading securities pursuant | ||
to federal and state securities laws or for other good cause, and | ||
that issuers and investors are not insolvent; | ||
(5) A written and electronic record of each | ||
transaction conducted among users must be provided to each | ||
purchaser and must be maintained by the Texas Investment Market for | ||
a period of no less than seven (7) years after the date of the | ||
transaction. In addition, the Texas Investment Market must make and | ||
maintain the accounts, correspondence, memoranda, papers, books, | ||
and other records required by rule or order of the Securities | ||
Commissioner. These additional records shall be maintained in a | ||
form of data storage established by the Securities Commissioner; | ||
(6) By no later than the end of January of | ||
each year, the Texas Investment Market must file a report with the | ||
Securities Commissioner and post the report at the same time on its | ||
internet site that includes a record of each transaction that was | ||
initiated and each transaction that was concluded during the | ||
previous calendar year; and | ||
(7) Bonding/Financial Assurance. The Texas | ||
Investment Market must obtain and maintain appropriate bonding | ||
and/or insurance to protect the issuers and investors trading | ||
securities on its market, as specified by the Securities | ||
Commissioner by rule. | ||
(4) Right of Access to Records; Inspection. Any person | ||
operating a Texas Investment Market shall keep and maintain records | ||
relating to all sales and trades of securities made pursuant to and | ||
in reliance on the intrastate crowdfunding or other exemption from | ||
federal securities regulation and shall provide ready access to | ||
these records to the Securities Commissioner upon request. The | ||
Securities Commissioner has the authority to access, inspect, audit | ||
and review any Texas Investment Market registered under this | ||
subsection as well as all of its records during reasonable business | ||
hours. | ||
(5) Nothing in this exemption shall be construed to | ||
alleviate any person from the anti-fraud provisions in the Act or | ||
Board rules; nor shall such exemption be construed to provide | ||
relief from any other provisions of this Article other than as | ||
specifically stated | ||
SECTION 4. The Securities Act (Article 581-13-1, Vernon's | ||
Texas Civil Statutes) is amended to read as follows: | ||
(A) The Commissioner, without notice, may inspect a | ||
registered dealer, |
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crowdfunding portal and Texas Investment Market subject to | ||
regulation pursuant to Article 581-23-5(V)and (W) of the Act, as | ||
necessary to ensure compliance with this Act and Board rules. | ||
(B) The Commissioner, during regular business hours, may: | ||
(1) enter the business premises of a registered | ||
dealer, |
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crowdfunding portal subject to regulation pursuant to Article | ||
581-23-5(V) of this Act and any Texas Investment Market subject to | ||
regulation pursuant to Article 581-23-5(W) of this Act; | ||
(2) examine and copy books and records pertinent to | ||
the inspection. | ||
(C) During the inspection, the dealer, investment advisor, | ||
issuer, crowdfunding portal and Texas Investment Market shall: | ||
(1) provide to the Commissioner or the Commissioner's | ||
authorized representative immediate and complete access to the | ||
person's office, place of business, files, safe, and any other | ||
location in which books and records pertinent to the inspection are | ||
located; and | ||
(2) allow the Commissioner or the Commissioner's | ||
authorized representative to make photostatic or electronic copies | ||
of books or records subject to the inspection. | ||
(D) A dealer, |
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portal and Texas Investment Market may not charge a fee for copying | ||
information under this section. | ||
(E) Information obtained under this section and any | ||
intra-agency or interagency notes, memoranda, reports, or other | ||
communications consisting of advice, analyses, opinions, or | ||
recommendations that are made in connection with the inspection are | ||
confidential and may not be disclosed to the public or released by | ||
the Commissioner except to the same extent provided for the release | ||
or disclosure of confidential documents or other information made | ||
or obtained in connection with an investigation under Section 28 of | ||
this Act. | ||
SECTION 5. The Securities Act (Article 581-33,Vernon's | ||
Texas Civil Statutes) is amended by adding a new Section 581-33-4 to | ||
read as follows: | ||
Sec. 33-4. Civil Liability with respect to Sale of a | ||
Security issued under the Intrastate Crowdfunding Exemption by a | ||
Texas Investment Market. | ||
(A) Liability of Issuers | ||
(1) A person who offers or sells a security issued | ||
under the intrastate crowdfunding exemption through a registered | ||
Texas Investment Market in violation of the provisions set forth in | ||
Section 581-23-5(W) is liable to the person buying the security, | ||
who may sue either at law or in equity for rescission or for damages | ||
if the buyer no longer owns the security. | ||
(2) A person who offers or sells a security issued | ||
under the intrastate crowdfunding exemption through a registered | ||
Texas Investment Market by means of an untrue statement of a | ||
material fact or an omission to state a material fact necessary in | ||
order to make the statements made, in light of the circumstances | ||
under which they are made, is liable to the person buying the | ||
security, who may sue either at law or in equity for rescission, or | ||
for damages if the buyer no longer owns the security. | ||
(B) Survivability of Actions. Every cause of action under | ||
this Act survives the death of any person who might have been a | ||
plaintiff or defendant. | ||
(C) Unenforceability of Illegal Contracts. No person who | ||
has made or engaged in the performance of any contract in violation | ||
of this Act or any rule, regulation or order adopted hereunder, or | ||
who has acquired any purported right under any such contract with | ||
knowledge of the facts by reason of which its making or performance | ||
was in violation, may base any suit on the contract. | ||
(D) Saving of Existing Remedies. The rights and remedies | ||
provided by this Act are in addition to any other rights (including | ||
exemplary or punitive damages) or remedies that may exist at law or | ||
in equity. | ||
SECTION 6. This Act takes effect immediately if it receives | ||
a vote of two-thirds of all the members elected to each house, as | ||
provided by Section 39, Article III, Texas Constitution. If this | ||
Act does not receive the votes necessary for immediate effect, this | ||
Act takes effect September 1, 2015. |