TOP CORPORATE AT TORNEYS
RIKARD LUNDBERG
BROWNSTEIN HYATT FARBER SCHRECK, LLP | SHAREHOLDER
Rikard Lundberg represents
private and public companies
from various industries such as
recreation, hospitality, media,
alternative energy, gaming
and consumer products in a broad range of matters and
transactions, including public and private securities offerings
(equity and debt), EB-5 transactions, mergers and acquisitions,
corporate contracting and general commercial and corporate
matters. Lundberg has represented regional centers,
developers and service providers in EB-5 transactions and has
a wealth of experience counseling clients on the corporate
and securities law aspects of EB-5 transactions and leading
successful teams in drafting and negotiating the complex and
voluminous documents that drive an EB-5 transaction.
WHAT TRENDS ARE YOU SEEING
IN THE EB-5 INDUSTRY?
The continued uncertainty about EB-5 program reform is having
a chilling effect on businesses and markets. Expected integrity
measures, together with the SEC’s continued enforcement
efforts and private litigation, have led industry participants to
focus on compliance matters. Furthermore, there is increasing
focus on use of third-party service providers in project due
diligence and oversight. Market-wise, increasing visa wait times
for Chinese-born investors has lowered demand, forcing EB-5
projects to seek capital in less developed emerging markets,
resulting in increased competition for fewer investors, longer
capital raising time and smaller project sizes.
HOW ARE YOU HANDLING
THE ISSUE OF REDEPLOYMENT?
In new transactions, I craft the relevant organizational documents
and investor disclosures to provide authority for the investment
entity to redeploy funds and hire an investment adviser, if
necessary. I also consider interplay with other investment terms,
such as investor distributions and return of capital. In existing
transactions, I review relevant documents and disclosures made
at the time of the original investment to determine whether the
investment entity has authority to redeploy and on what terms. If
there is no such authority, it may be necessary to obtain investor
consent before redeploying.
JENNIFER MOSELEY
BURR & FORMAN LLP | PARTNER
Jennifer Moseley is a
corporate and securities
par tner at Burr & Forman
LLP in Atlanta, and advises
small startups to large public
companies in an array of
transactions and capital-raising activities. She enjoys
resolving her clients’ needs in her role as counselor to
startup and developmental stage companies. Moseley
was introduced to EB-5 in early 2008 and addressed
securities law implications in EB-5 during the early years,
when securities law was not at the forefront of EB-5-related
discussions. She continues to help clients navigate the
intricacies of securities laws with practical solutions to
meet their goals.
WHAT TRENDS ARE YOU SEEING
IN THE EB-5 INDUSTRY?
With backlogs on visa processing and proposed legislative
changes, I continue to see direct EB-5 investments
becoming more popular, particularly with investments
moving toward a wider variety of projects outside of big
real estate developments. In addition, due to increasing
negative views of EB-5, I think there will be more inter-
agency cooperation and emphasis on oversight, particularly
from the SEC, in the reforms. Finally, as EB-5 investors
become savvier of the intricacies of EB-5 requirements,
investors’ and regional centers’ attention will turn toward
more complex issues such as individual tax consequences,
and service providers in this area will increase.
HOW ARE YOU HANDLING
THE ISSUE OF REDEPLOYMENT?
I have discussions upfront with the JCE about other projects
into which we could redirect EB-5 funds in case an
investment will be repaid before an EB-5 investor has had
his or her I-829 petition adjudicated, and more migration
agents are requesting this upfront. Funds can be redeployed
to a project of a different developer, but typically I negotiate
with the JCE to provide contractual obligations allowing the
regional center to redirect funds to a future project of the
same JCE. When the JCE has a proven track record,
investors have a higher level of comfort in redeployment.
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