U.S. Securities Laws Overview

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1 CDFA Intro EB-5 Finance Webcourse U.S. Securities Laws Overview September 18, 2013 Mariza E. McKee, Esq. Attorney Kutak Rock LLP This is a presentation of Kutak Rock LLP and is intended to provide our clients and friends with general information about some of the major issues and securities laws implicated in an EB-5 securities offering. This information is not intended, nor should it be used, as legal advice, and it does not create an attorney-client relationship.

com This is a presentation of Kutak Rock LLP and is intended to provide our clients and friends with general information

2 EB-5 Immigrant Investor Program Employment-Based Immigration Fifth Preference Established by Congress in 1990 Create jobs Attract investment capital Administered by U.S. Citizenship and Immigration Services (USCIS) Investment Requirements Equity at risk investment In a new commercial enterprise (NCE) $500,000 (if NCE is in a targeted employment area (TEA)) $1,000,000 (if NCE is not in a TEA) Create 10 new U.S. jobs per investment Immigrant Investor Benefit Potential for conditional-to-permanent U.S. residence Investor, spouse, and children under age 21 More Information: 2

Citizenship and Immigration Services (USCIS) Investment Requirements Equity at risk investment In a new commercial enterprise (NCE) $500,000 (if

3 Relevance of U.S. Securities Laws Issuers, Regional Centers, Managers, Principals, and EB-5 Investors Applicable U.S. Securities Laws Securities Act of 1933 Securities Exchange Act of 1934 Investment Company Act of 1940 Investment Advisers Act of 1940 State Blue Sky laws EB-5 Investments Likely fit within broad definition of security Anti-fraud, civil liability, and broker-dealer registration requirements apply even if exempt from registration Securities and Exchange Commission (SEC) Concerns April 3, 2013 USCIS Quarterly Stakeholders Meeting Reiteration that U.S. federal securities laws apply to EB-5 Program SEC Divisions of Corporation Finance, Trading and Markets, Investment Management, and Enforcement Executive Summary: ecutivesummary-eb pdf 3

1940 Investment Advisers Act of 1940 State Blue Sky laws EB-5 Investments Likely fit within broad definition of security Anti-fraud, civil liability, and broker-dealer registration requirements apply

4 Securities Act of 1933 Truth in Securities Law Register or Exemption Registration Purpose: Disclose important financial information, enabling investors to make informed judgments about whether to purchase a company s securities. Investors may have recovery rights if they can prove that there were material omissions or inaccurate disclosure of important information. Exemptions: Not all offerings of securities must be registered with the SEC. Common EB-5 Federal Exemptions: Regulation D Regulation S Anti-fraud compliance still applies (e.g. Section 10(b) and Rule 10b-5) Non-Exempt Offer Consequences No perfected claim and offering made in violation of federal securities laws Potential rescission, lawsuits, and SEC investigation Issuer and principals personally liable Securities Act of 1933: 4

5 Regulation S Offerings to Non-U.S. Persons Safe Harbor exemption from registration under the Securities Act of 1933 for offering and sale of securities occurring outside the U.S. General Conditions Offshore Transaction Rule 903(a)(1) No directed selling efforts in the U.S. Rule 902(c) Rule 903 Category 3 EB-5 Offerings of Equity Securities Investor certification not a U.S. person Investor agrees to resell only pursuant to 1933 Act or exemption therefrom or pursuant to restrictions in the operating agreement Transfer prohibition legend Fewer Restrictions No size limit No manner limit (provided no directed selling efforts in U.S.) No level of sophistication requirement General solicitation allowed off-shore 5

therefrom or pursuant to restrictions in the operating agreement Transfer prohibition legend Fewer Restrictions No size limit No manner limit (provided no directed selling

6 Regulation D Rule 506 Sales to Accredited Investors Safe Harbor for the private offering exemption of Section 4(a)(2) from registration under the Securities Act of 1933 for offering and sale of securities that comply with the requirements of Rule 506 Standards No general solicitation and advertising Unlimited number of accredited investors any natural person whose individual net worth, or joint net worth with that person s spouse, at the time of his or her purchase exceeds $1,000,000 any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year Issuer: adequate disclosure + available to answer questions by prospective purchasers Requirements: EDGAR registration, Form D filing, blue sky filings JOBS Act Rule 506(c) September 23, 2013 Dodd-Frank Section 926 Bad Actors September 23,

joint net worth with that person s spouse, at the time of his or her purchase exceeds $1,000,000 any natural person who had an individual income in excess of $200,000 in each of the two most recent

7 Securities Exchange Act of 1934 SEC Oversight and Regulation of Financial Markets Broker-Dealers and Other Intermediaries Broker any person engaged in the business of effecting transactions in securities for the account of others Dealer - any person engaged in the business of buying and selling securities for such person s own account through a broker or otherwise Finder v. Broker-Dealer Foreign Placement Consultants and Migration Agents Broker-Dealer registration may be required if any of the following are present: the finder participates in important parts of the offering, including soliciting, negotiating, or executing the sale of securities compensation depends on the results or amount of securities sold the finder has a history of executing such offerings the finder is involved in offerings for others Offering Contingencies Min-Max Offerings (Rule 10b-9 and Rule 15c2-4) Securities Exchange Act of 1934: 7

Broker-Dealer Foreign Placement Consultants and Migration Agents Broker-Dealer registration may be required if any of the following are present: the finder participates in important parts of the

8 Investment Company Act of 1940 Companies Primarily Engaged in Investing, Reinvesting, and Trading Securities Register or Exemption Purpose: regulates companies that engage primarily in investing, reinvesting, and trading in securities, whose securities are offered to the investing public; requires disclosure about the issuer, its investment objectives, structure, and operations. EB-5 Application: SEC has generally taken the position that promissory notes evidencing commercial or consumer transactions (loans) qualify as securities under the ICA (Bank of America Canada, SEC No-Action Letter (July 25, 1983), Harrell Int'l. Inc., SEC No-Action Letter (May 24, 1989) and World Evangelical Dev., Ltd., SEC No-Action Letter (April 5, 1979)). Common Exemptions: Section 3(c)(1) 100-Investor Limit; and Section 3(c)(7) Qualified Purchasers; Section 3(c)(5)(C) Mortgage and Asset-Backed Securities Adverse Consequences: may not engage in interstate commerce, rendering contracts unenforceable, additional requirements and restrictions; violations may not be curable. Investment Company Act of 1940: 8

EB-5 Application: SEC has generally taken the position that promissory notes evidencing commercial or consumer transactions (loans) qualify as securities under the ICA (Bank of America Canada, SEC

9 Investment Advisers Act of 1940 Regulation of Investment Advisers Investment Adviser - Any person who, for compensation, is engaged in the business of advising others, either directly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities. SEC Registration or Exemption and State Regulation Regional Centers Investment Advisers Act of 1940: 9

purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning

10 State Blue Sky Laws State Securities Administrators State securities laws Investor protection from fraud Laws vary from state to state Registration requirements and exemptions State preemption for Rule 506 offerings No state preemption for Regulation S offerings Also: license brokerage firms, brokers, and investment advisers 10

exemptions State preemption for Rule 506 offerings No state preemption for

11 Contact Mariza E. McKee Attorney Kutak Rock LLP Robert J. Ahrenholz Partner Kutak Rock LLP Robert B. Keim Partner Kutak Rock LLP

Ahrenholz Partner Kutak Rock LLP Bob.Ahrenholz@KutakRock.

Raising EB-5 Capital: Key Securities Laws Considerations and a Compliance Roadmap

Raising EB-5 Capital: Key Securities Laws Considerations and a Compliance Roadmap Mariza E. McKee, Robert J. Ahrenholz and Robert B. Keim, Kutak Rock LLP, with Practical Law Labor & Employment A Practice