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RULE §109.15Designated Matching Services

(a) In general. The use of a designated matching service facility by an issuer member shall not constitute public solicitation or advertisement within the meaning of The Securities Act, §5.I and §5.Q, §109.13 of this title (relating to Limited Offering Exemptions), §109.14 of this title (relating to Oil, Gas and Other Mineral Interests), or §139.16 of this title (relating to Sales to Individual Accredited Investors), and a designated matching service shall not be deemed a dealer subject to registration within the meaning of The Securities Act or the rules and regulations thereunder.

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

  (1) Designated matching service--A matching service designated by the Securities Commissioner under this section.

  (2) Designated matching service facility--A computer system operated, or a seminar or meeting conducted, by a designated matching service.

  (3) Investor member--An investor who has been properly qualified by and uses a designated matching service. Any of the following investors, among others, may be properly qualified: any institutional investor as described in the Texas Securities Act, §5.H, or §109.4 of this title (relating to Securities Registration Exemption for Sales to Financial Institutions and Certain Institutional Investors); any individual accredited investor as defined in §139.16 of this title (relating to Sales to Individual Accredited Investors); any sophisticated investor as defined in §109.13(a)(2) of this title (relating to Limited Offering Exemptions); or any person who is engaged in the same business, or in the practice of a profession or discipline directly related to that business, as is the issuer member whose identity and summary business plan is provided to that person.

  (4) Issuer member--An issuer who uses a designated matching service facility.

  (5) Summary business plan--A brief statement specifically describing the issuer, its management, its products or services, and the market for those products or services. Other information, including, specifically, financial projections, must not be included in a summary business plan.

(c) Application. A person may apply to the Securities Commissioner to be a designated matching service by filing Form 133.35, Application for Designation as Matching Service Under §109.15. No designation will be made unless the applicant demonstrates that it:

  (1) owns, operates, sponsors, or conducts a matching service facility limited to providing investor members with the summary business plans and identities of issuer members;

  (2) will not be involved in any manner in the sale, offer for sale, solicitation of a sale or offer to buy, a security other than as set forth in paragraph (1) of this subsection;

  (3) believes, after making a reasonable factual inquiry, that any person who uses the matching service facility in the capacity of an investor is a properly qualified investor member;

  (4) is a governmental entity, quasi-governmental entity, an institution of higher education or a domestic (Texas) nonprofit corporation that is associated with a governmental or quasi-governmental entity or an institution of higher education;

  (5) does not employ any person required to be registered under the Act as a dealer, investment adviser, salesman, or agent;

  (6) does not have, and does not employ any person who has, a business relationship with any investor member or issuer member other than to provide such member access to the matching service facility;

  (7) charges fees only in an amount necessary to cover its reasonable operating costs and that are unrelated to the amount of money being raised by any issuer member or the amount of securities sold by any issuer member;

  (8) agrees not to use any advertisement of its matching service facility that advertises any particular issuer or any particular securities or the quality of any securities or that is false or misleading or otherwise likely to deceive a reader thereof, and, upon objection by the Securities Commissioner, agrees to cease any advertisement; and

  (9) meets such other conditions as the Securities Commissioner considers appropriate for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of The Securities Act and the rules and regulations thereunder.

(d) Designation consistent with Act. Designation under this section is not available to any matching service formed in a manner that constitutes part of a scheme to violate or evade the provisions of The Securities Act or Board rules.

(e) Withdrawal of designation. The Securities Commissioner, upon ten days notice and hearing before the Securities Commissioner or a hearings officer as now or hereafter required by law, may withdraw a person's designation as a matching service if the person does not meet the standards for designation provided in this section.

Source Note: The provisions of this §109.15 adopted to be effective April 21, 1995, 20 TexReg 2619; amended to be effective January 8, 2006, 30 TexReg 8865

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