N.J. Admin. Code § 13:47A-2.13

Current through Register Vol. 56, No. 21, November 4, 2024

Section 13:47A-2.13 - Investment adviser brochure rule

(a) Definitions. For the purpose of this section, the following phrases shall have the following meanings, unless the context clearly indicates otherwise:

1. "Contract for impersonal advisory services" means any contract relating solely to the provision of investment advisory services:

i. By means of written material or oral statements that do not purport to meet the objectives or needs of specific individuals or accounts;

ii. Through the issuance of statistical information containing no expression of opinion as to the investment merits of a

particular security; or

iii. Any combination of the services in (a)1i or ii above.

2. "Entering into," in reference to an advisory contract, does not include an extension or renewal without material change of any such contract that is in effect immediately prior to such extension or renewal.

(b) General requirements for the investment adviser brochure rule are as follows:

1. Unless otherwise provided in this section, an investment adviser, registered or required to be registered pursuant to 13:47A-2.1 shall, in accordance with the provisions of this section, furnish each advisory client and prospective advisory client with:

i. A brochure, which may be a copy of Part 2A of its Form ADV or written documents containing the information required by Part 2A of Form ADV;

ii. A copy of its Part 2B brochure supplement for each individual:

(1) Providing investment advice and having direct contact with clients in this State; or

(2) Exercising discretion over assets of clients in this State, even if no direct contact is involved;

iii. A copy of its Part 2A Appendix 1 wrap fee brochure, if the investment adviser sponsors or participates in a wrap fee account;

iv. A summary of material changes from the last annual updating amendment (including, but not limited to, changes in advisory fees), which may be included in Form ADV Part 2 or given as a separate document; and

v. Such other information as the Bureau Chief may require.

2. The brochure must comply with the language, organizational format and filing requirements specified in the Instructions to Form ADV Part 2.

(c) Delivery of the brochure required under this section shall be as follows:

1. Initial delivery. An investment adviser, except as provided in (c)3 below, shall deliver the Part 2A brochure and any brochure supplements required by this section to a prospective advisory client:

i. Not less than 48 hours prior to entering into any advisory contract with such client or prospective client; or

ii. At the time of entering into any such contract, if the advisory client has a right to terminate the contract without penalty within five business days after entering into the contract.

2. Annual delivery shall be as follows:

i. An investment adviser, except as provided in (c)3 below, must:

(1) Deliver within 120 days of the end of its fiscal year a free, updated brochure and related brochure supplements, which include or are accompanied by a summary of material changes; or

(2) Deliver a summary of material changes, which includes an offer to provide a copy of the updated brochure and supplements and information on how the client may obtain a copy of the brochures and supplements.

ii. Investment advisers do not have to deliver a summary of material changes or a brochure to clients if no material changes have taken place since the last summary and brochure delivery. The Bureau interprets "material change" to include changes in advisory fees, thereby requiring an update to all parts of Form ADV.

3. Delivery of the brochure and related brochure supplements required by (c)1 and 2 above need not be made to:

i. Clients who receive only impersonal advice and who pay less than $ 500.00 in fees per year;

ii. An investment company registered under the Investment Company Act of 1940; or

iii. A business development company, as defined in the Investment Company Act of 1940 and whose advisory contract meets the requirements of section 15c of that Act.

4. Delivery of the brochure and related supplements may be made electronically if the investment adviser:

i. In the case of an initial delivery to a potential client, obtains a verification that a readable copy of the brochure and supplements were received by the client;

ii. In the case of deliveries other than initial deliveries, obtains each client's prior consent to provide the brochure and supplements electronically;

iii. Prepares the electronically delivered brochure and supplements in the format prescribed in (b) above and instructions to Form ADV Part 2;

iv. Delivers the brochure and supplements in a format that can be retained by the client in either electronic or paper form; and

v. Establishes procedures to supervise personnel transmitting the brochure and supplements and prevent violations of this section.

(d) Other disclosures. Nothing in this section shall relieve any investment adviser from any obligation pursuant to any provision of the Act or the rules and regulations thereunder or other Federal or State law to disclose any information to its advisory clients or prospective advisory clients not specifically required by this section.

N.J. Admin. Code § 13:47A-2.13

Adopted by 47 N.J.R. 2155(a), effective 8/17/2015