今天，我们来看看这篇，AAEB5集团总裁Victor Shum和Jeffer Mangels Butler & Mitchell LLP的Catherine DeBono Holmes律师的文章，关于SEC对于EB-5融资的网络营销规定，供业内朋友们参考（这些SEC的合规要求，不但是对美国的项目方，而且针对海外的代理方，即包括移民中介机构的网站营销行为规范）。SEC的目的无他，就是保护投资者利益，免受网络的信息误导，做出冷静的投资决策。本文有业内朋友Dora义务翻译，特此感谢。
- 除非网站只允许非美国人访问，否则使用网站来宣传EB-5产品被美国证券法认为是一种“大范围募资”。自1995年以来，SEC（证监会）的观点一直就是：在网站上提供材料，能够被任何观众访问到，这种情形都是大范围的广告或大范围募资，除非网站采取一些限制性措施实现只有被允许访问的人才能够访问网站。1998年，SEC起草了一份备忘录来解释如何在美国以外使用互联网网站提供或宣传证券，对具体措施提供指导，如何才能对美国之外的外国人保持Reg S（法规S）的豁免，并同时保留对在美国境内满足Reg D（法规D）的人提供产品的权利。本文中提供的指导方针部分来自SEC公告。
- 如果EB- 5证券发行人打算接受美国投资者，那么就必须满足Reg D的要求，包括限制网站宣传的使用。尽管EB-5证券发行通常是提供给美国以外的投资者，但是一些进行EB-5投资的投资者，他们收到EB-5募资相关信息时，或他们接收或签署EB-5募资文件时，可能会在美国境内。这样的投资者可能是美国大学的国际留学生或其他临时签证持有人。所有这些类型的人在Reg S中被认为是“美国人”，向这些“美国人”进行EB-5募资就不能满足Reg S的豁免要求。出于这个原因，大多数EB- 5产品对美国以外的投资者进行募资邀约，或者他们收到或签署私募文件时，都是遵从SEC的Reg S要求，或销售给美国人时遵从SEC的Reg D要求。当一个EB-5证券的发行人打算依靠Reg D来接受一些被认为是“美国人”的投资者时，发行人及其代理必须小心确保用来推广EB-5产品的所有网站——包括那些发行人和所有代理推广产品的网站——都将满足Reg D的要求。
- Reg D现在有两个选择：向所有满足“合格投资者”地位的美国人投资者进行大范围募资，或，对美国人投资者进行非大范围募资。2013年7月，SEC实施创业企业融资法案（JOBS法案）和修订条例506（c）下的法规D允许对美国人投资者进行大范围募资，如果发行人，通过要求投资者提交纳税申报表复印件，银行对账单或其他认可的验证手段，验证了每一个美国人投资者作为一个“合格投资者”（Accredited Investor）的资格。然而，只要不进行大范围募资，SEC还允许发行人按照在条例506（b）下的旧法规D的要求，不需要验证美国人投资者的“合格投资者”资格。这意味着如果一个EB-5证券发行者希望没有限制地进行大范围募资，包括对网站提供的证券没有限制的话，,只要它要求每一个美国人投资者提供的一个公认的方法验证他们的身份作为一个“合格投资者”，它就能做到这一点。
* 或者，净资产超过100万美元，独自或者同配偶一起（不包括主要的住宅价值或者任何由住宅所担保的贷款价值 - 以住宅价值为上限）。
原文作者：AAEB5集团总裁Victor Shum和Jeffer Mangels Butler & Mitchell LLP的Catherine DeBono Holmes律师
The basic rules of website advertising for EB-5 securities offerings
Victor Shum, CEO of Advantage America EB-5 Group
Jeffer Mangels Butler & Mitchell LLP - Catherine DeBono Holmes
EB-5 securities issuers, sponsors and others who market EB-5 securities often want to use websites to provide information to potential investors regarding their past and current EB-5 projects. When using these websites, it is important to understand the U.S. securities laws that apply to internet marketing of securities within and outside the U.S. The purpose of this article is to provide a brief explanation of these securities laws and guidelines to consider when using websites to identify or market EB-5 securities offerings.
Using websites to advertise EB-5 offerings is considered a form of “general solicitation” under U.S. securities laws, unless guidelines to restrict access to non-U.S. persons are followed. Since 1995, the Securities and Exchange Commission (“SEC”) has held the position that posting offering materials on a website in a way that can be accessed by any viewer is a general advertisement or general solicitation, unless some restrictive access measures are implemented to allow access only to permitted persons. In 1998, the SEC issued an interpretation on the use of internet websites to offer or advertise securities outside the U.S., providing guidance on specific measures that can be taken to retain the Regulation S exemption for offerings made to non-U.S. persons outside the U.S., and concurrently retain the right to make an offering under Regulation D to persons located in the U.S. at the time of the offering. The guidelines provided in this article are derived in part from that SEC release.
If an EB-5 securities issuer intends to accept any U.S. investor, it is necessary to meet the requirements of Regulation D, including the restrictions on use of websites to advertise the offering. Although EB-5 securities offerings are generally offered to investors outside the United States, it is not unusual that some investors making an EB-5 investment will be located in the United States at the time they receive information about an EB-5 offering, or they receive or sign EB-5 offering documents. Such investors may be international students attending university in the U.S. or other temporary U.S. visa holders. All of those types of persons are considered “U.S. Persons” under Regulation S, and issuers are not qualified to rely on the Regulation S exemption with respect to EB-5 securities sold to those U.S. Persons. For that reason, most EB-5 offerings rely on SEC Regulation S for investors who are outside the U.S. when they are solicited, or they receive or sign offering documents, or on SEC Regulation D for sales to U.S. Persons. When an issuer of EB-5 securities intends to rely on Regulation D to accept some investors who are “U.S. Persons,” the issuer and its agents must take care to assure that all websites used to promote the EB-5 offering – including those of the issuer and those of all of the agents promoting the offering – will meet the requirements of Regulation D.
Regulation D now has two options: use general solicitation with verification of “accredited investor” status for all U.S. Person investors or use no general solicitation for U.S. Person investors. In July 2013, the SEC implemented aspects of the Jumpstart Our Business Startups Act (JOBS Act) and amended Regulation D under Rule 506(c) to allow the use of general solicitation for investors who are U.S. Persons, if the issuer requires verification of every U.S. Person investor’s status as an “accredited investor,” by requiring that investors submit copies of their tax returns, bank statements or other recognized means of verification. However, the SEC also allows issuers to follow the old Regulation D requirements under Rule 506(b), which do not require verification of accredited investor status from U.S. Person investors, as long as no general solicitation is used for the offering. This means that if an EB-5 securities issuer wants to use general solicitation with no restriction, including no restrictions on websites offering the securities, it can do that, as long as it required every U.S. Person investor to provide one of the recognized means of verification of their status as an “accredited investor.”
If an EB-5 securities issuer chooses not to require verification of accredited investor status, then restrictions should be placed on the availability of information concerning current EB-5 offerings on websites easily accessible to U.S. Persons. If the EB-5 securities issuer elects to follow the “no general solicitation” option under Regulation D, then the guidelines suggested by the SEC in its interpretation on the use of websites for offshore offerings should be followed. In that interpretation, issuers are advised to use precautionary measures that are reasonably designed to ensure that offshore internet offers are not targeted to U.S Persons, including the following measures:
Disclaimers – A website should include a prominent disclaimer making it clear that any offering of securities is directed only to countries other than the U.S., and is not being offered in the U.S. or to U.S. Persons. If the EB-5 issuer will accept U.S. Persons who are accredited investors, that statement should also be made in the disclaimer.
Password Protection to Restrict Access to Offering Documents to Non-U.S Persons Only – A website that offers access to offering materials should limit access to those materials to those viewers who first provide their residence information to confirm that they are not U.S. Persons. If the viewer provides a non-U.S. address and telephone number, the viewer could be provided with a password that allows access to the offering materials. The SEC has stated that this will be considered reasonable measures on the part of the issuer, even if the viewer misrepresents his or her address or telephone. (If the viewer later submits a subscription agreement with a U.S. address or telephone number, the issuer would have to reject the subscription because at that time the issuer would know that the investor is a U.S. Person and therefore was not eligible to receive the offering materials on the website.)
Pre-Qualification Procedure for U.S. Persons – Website viewers who indicate a U.S. residence or telephone number should not receive an immediate password to view EB-5 Offering materials. However, the website could respond with a message to the viewer advising that, if the viewer provides information to show in advance that he or she is an accredited investor, the website provider will advise the prospective investor in the future of available EB-5 offerings. The viewer would be directed to fill out a questionnaire including information on his or her net worth and annual income, designed to confirm that the viewer is an accredited investor qualified to invest in Regulation D offerings. The SEC has, in past no-action letters, allowed such a procedure to establish a relationship with a potential U.S. investor after an appropriate waiting period, and stated that such a procedure would not be deemed general solicitation for Regulation purposes.
Same Restrictions for Websites of Offshore Agents – The SEC advises that any third party website that is used to generate interest in an EB-5 securities offering, including a website provided by an offshore agent, is subject to the same restrictions as those that apply to the issuer itself.
Limited Project Only Information for Current EB-5 Offerings – An issuer of EB-5 securities or a regional center may want to inform third parties of what EB-5 projects it is currently working on, without providing offering information for those projects. Project information should be limited to the location, type of project, developer and other general information regarding the project in which an EB-5 investment will be made. The website should direct persons who desire to receive more information about that project to provide the residency information and obtain the password to access that information, as previously indicated.
Following these website guidelines is an important step in conducting EB-5 securities offerings in a manner that complies with U.S. securities laws. In addition, EB-5 issuers, marketing agents and others engaged in EB-5 securities offerings should read and follow the Best Practices for EB-5 Offerings suggested by the IIUSA appearing on its website at IIUSA.org.
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