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© 2009 Morrison & Foerster LLP All Rights Reserved MORRISON & FOERSTER LLP CAPITAL MARKETS Financing Public Companies Through Exempt and Hybrid Securities.

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Presentation on theme: "© 2009 Morrison & Foerster LLP All Rights Reserved MORRISON & FOERSTER LLP CAPITAL MARKETS Financing Public Companies Through Exempt and Hybrid Securities."— Presentation transcript:

1 © 2009 Morrison & Foerster LLP All Rights Reserved MORRISON & FOERSTER LLP CAPITAL MARKETS Financing Public Companies Through Exempt and Hybrid Securities Offerings NY October 7, 2009

2 2 Market windows Sources of liquidity are critical in today’s capital markets. It is important to understand the range of financing alternatives and the potential advantages and disadvantages associated with each. It is important to prepare for a financing so that when a market “window” opens, an issuer can finance quickly. MORRISON & FOERSTER LLP CAPITAL MARKETS

3 3 PrivateHybridPublic Conventional private placements Private placements with trailing registration rights Traditional PIPEs Structured PIPEs Private equity lines Registered direct offerings 144A offerings Underwritten offerings Bought deals At-the-market offerings Equity shelf programs Rights offerings Less LiquidMore LiquidLiquid Financing continuum MORRISON & FOERSTER LLP CAPITAL MARKETS

4 4 Capital raising approaches Offerings that do not involve an extended marketing period  Public deals with lead investors or “anchor” investors  Public deals with pre-marketing done on a confidential basis  PIPEs and registered directs  At-the-market offerings MORRISON & FOERSTER LLP CAPITAL MARKETS

5 5 Capital raising approaches (cont’d) Offerings that are not subject to SEC comment.  Requires that the issuer have an effective shelf registration statement Offerings that include an offering to existing investors  Rights offerings 144A offerings — both debt and equity MORRISON & FOERSTER LLP CAPITAL MARKETS

6 6 Developments Affecting PIPEs MORRISON & FOERSTER LLP CAPITAL MARKETS

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8 8 PIPE A PIPE (Private Investment in Public Equity) is the privately negotiated sale (i.e., a private placement) of a public issuer’s equity or equity-linked securities to investors, where the sale is conditioned upon a resale registration statement being filed with, and declared effective by, the SEC (permitting immediate or prompt resale). MORRISON & FOERSTER LLP CAPITAL MARKETS

9 9 PIPEs: changing terminology “PIPE” has come to mean any private investment in a public company, including: A traditional PIPE; A private placement with delayed (or trailing) resale registration rights; A private convertible preferred (fixed or floater) or structured PIPE; A venture-style, or change-of-control, private placement; A registered direct; and A private “equity line” or equity shelf program. MORRISON & FOERSTER LLP CAPITAL MARKETS

10 10 Standard PIPE terms Private placement to selected accredited investors; Investors irrevocably commit to purchase a fixed number of securities (common stock or fixed rate/price preferred stock) at a fixed price, not subject to market price or fluctuating ratios; Purchase agreements are negotiated and executed with investors; Transaction funds and closes; and Issuer undertakes to file a registration statement covering the resale by the investors of their shares. MORRISON & FOERSTER LLP CAPITAL MARKETS

11 11 PIPE trends Number of DealsDollars Raised 20081,211$ 121 billion 20071,859$ 66 billion 20061,755$ 35 billion 20051,492$ 19 billion *Data: PrivateRaise.com MORRISON & FOERSTER LLP CAPITAL MARKETS

12 12 PIPE trends (cont’d) More deals and more larger deals getting done  the average deal size in 2008 continued to increase; and  over ¾ of the deals were done by companies eligible to use an S-3 on a primary basis (over $75 million in public float, excluding affiliates). More “mainstream” financing being used by large public companies as an alternative to a marketed follow-on, a bought deal or an overnighter. MORRISON & FOERSTER LLP CAPITAL MARKETS

13 13 PIPE trends (cont’d) More common stock and common stock with warrant deals; fewer convertible deals More sector/institutional buyers and financial sponsors participating in PIPEs MORRISON & FOERSTER LLP CAPITAL MARKETS

14 14 Registered Direct Offerings MORRISON & FOERSTER LLP CAPITAL MARKETS

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16 16 RDs allow an issuer to achieve public style pricing while maintaining the relative confidentiality of a private placement. A Registered Direct offering is a “best efforts” placement of registered common stock off an issuer’s existing effective shelf registration statement, generally, to a limited number of institutional investors; the securities are immediately eligible for resale. The Registered Direct is a “private style” public offering which is, in some ways, an extension of the PIPE; the number of Registered Direct offerings has been trending upwards in the last several years and now accounts for approximately 10-15% of overall “PIPEs.” Registered Direct offerings have characteristics of both public and private offerings; thus, they are governed by the rules, regulations and market practices specific to each type of offering. MORRISON & FOERSTER LLP CAPITAL MARKETS

17 17 Registered Direct offerings The market is in a cycle where registered direct offerings work well; A registered direct is most efficient when the issuer already has an effective primary shelf registration statement (although registered directs also can be used to sell secondary stock); and Registered directs are being marketed and sold by the private placement groups of many large investment banks as “registered PIPEs” or “strategic publics.” MORRISON & FOERSTER LLP CAPITAL MARKETS

18 18 Registered directs With a greater number of issuers eligible to use a shelf, registered directs will become an even more important financing alternative Two considerations:  Nasdaq and other 20% rule limitations  1/3 cap on primaries or smaller public companies MORRISON & FOERSTER LLP CAPITAL MARKETS

19 19 More “tandem” deals Smaller public companies may need to consider pursuing contemporaneous offerings in order to address the 1/3 cap Important to keep an eye on integration issues MORRISON & FOERSTER LLP CAPITAL MARKETS

20 20 Standard terms of registered directs If a shelf registration statement does not already exist, a registration statement on the appropriate form is filed with the SEC; Offering is conducted on an agency basis by the placement agent. Although the placement agent is likely to be a statutory underwriter, use of the firm’s capital is not required; Offering is either on an all or nothing basis (escrow required) or on a minimum/maximum basis (escrow required) or on an any or all basis (escrow not required); Purchasers generally do not negotiate or sign individual purchase agreements with the issuer; Closing can occur as soon as the registration statement is declared effective (if there is no shelf in place); and Closing occurs on a normal T+3 schedule. MORRISON & FOERSTER LLP CAPITAL MARKETS

21 21 Considerations for issuers Press release announcing filing of registration statement (if no shelf) mentions that offering is targeted to selected institutional investors. This factor tends to limit, or eliminate, shorting of the securities between filing (if no shelf) and closing; Registered directs normally are used for follow-on offerings, but can be used for IPOs. With follow-on offerings, discount to market is usually no greater than with a standard follow-on; Because the distribution of securities is covered by a registration statement, investors have immediate liquidity. In fact, the securities trade on a “when issued” basis; MORRISON & FOERSTER LLP CAPITAL MARKETS

22 22 Considerations for issuers The 20% Rule is being applied to Registered Directs unless agents can demonstrate broad distribution; Because these transactions are registered, offering can be made to virtually any potential investor, subject to appropriate suitability requirements; Registered directs are typically faster (and cheaper) than firm commitment deals and not subject to a significant discount (like a private transaction); and Hedge funds are unlikely to short between filing and closing. MORRISON & FOERSTER LLP CAPITAL MARKETS

23 23 Registered Direct offerings market Summary Comparison of Financing Alternatives Common Stock PIPEsCommon Stock RDsFully Marketed Follow-on Company sells unregistered common stock to a targeted group of institutional investors in a private placement, with an agreement to file to register the securities typically within 30 days after the offering Company sells registered equity off an existing shelf registration statement to a targeted group of institutional investors following a 3-day marketing period Company sells equity off an effective registration statement to a large group of investors in a registered offering, typically following a 10-day marketing period No upfront SEC registration Can be executed quickly, usually within 1-2 weeks post transaction launch Limited market risk as transaction is confidential/discreet Ability to size transaction to company needs and investor response Broad addressable investor base Can be executed very quickly, oftentimes with 3-5 days post transaction launch Ability to size transaction to company needs and investor response Pricing dynamics similar to fully marketed follow-on Best opportunity to communicate strategy and company story Best opportunity to broaden shareholder base Improves liquidity Offered at a negotiated discount to recent average closing price given illiquidity of shares Limited improvement to liquidity in short- term May require the issuance of warrants Offered at a negotiated discount to the then current market price Shelf registration statement must be effective prior to transaction launch Requires legal opinion and comfort letter Most significant roadshow time commitment Requires up-front SEC registration Potential share price impact from announcement to pricing Public transaction Description Benefits Considerations MORRISON & FOERSTER LLP CAPITAL MARKETS

24 24 Registered Direct offerings market Summary Comparison of Financing Alternatives Common Stock PIPEsCommon Stock RDsFully Marketed Follow-on Typically sold to a targeted group of investors (usually 15 or fewer, subject to offer size) Opportunity to attract new institutional shareholders by offering key institutions enough shares to give them a core position Investors include mutual funds, public cross- over investors, private equity investors, financial institutions and hedge funds Typically sold to a targeted group of investors (usually 15 or fewer, subject to offer size) Opportunity to attract new institutional shareholders by offering key institutions enough shares to give them a core position Investors include mutual funds, public cross- over investors, private equity investors, financial institutions, and hedge funds Significant opportunity to attract new institutional investors Key institutions can be allocated enough shares to give them a core position Investors include mutual funds, public cross- over investors, financial institutions and hedge funds Modified book building; usually priced at a negotiated discount to recent average closing price Transparency of order book between issuer and agent Modified book building; usually priced at a negotiated discount to the then current market price Transparency of order book between issuer and agent Book building; pricing will be based on the then current market price subject to sensitivity in order book Typically negative share price impact between filing and price Lack of transparency of order book between issuer and “underwriter” Offering does not require up-front SEC registration Can be completed in 1-2 weeks post transaction launch Targeted marketing over a 3-5 day time period, predominately via a limited number of one-on-ones and conference calls Offering requires up-front SEC registration (shelf registration statement must be effective) Can be completed in 3-5 days post transaction launch Targeted marketing over a 3-day time period, predominately via a limited number of one-on- ones and conference calls Can be completed in 4 weeks from filing (assuming no review); 8+ weeks (with a review) Marketing process via multi-city roadshow usually lasts approximately 10 days Typically sole agented given quick process, targeted investor set, premium on consistent message, negotiated transaction Typically sole agented (“best efforts” underwriting) given quick process, targeted investor set, premium on consistent message, negotiated transaction Typically multiple managers (“firm commitment” underwriting) given larger transaction size, broad marketing effort Description Pricing Timing Agents/ Managers MORRISON & FOERSTER LLP CAPITAL MARKETS

25 25 Registered Direct offerings market Summary Comparison of Financing Alternatives RDs Summary Comparisons RDs are similar to PIPEs: Generally targeted marketing to institutional investors primarily via limited number of one-on-ones and conference calls “Stealth” execution / confidential marketing Investor overlap (i.e, mutual funds, public cross-over investors, hedge funds, etc.) Flexible sizing; accommodative of smaller deal size Typically sole-agented Usually subject to Nasdaq 20% Rule Registered vs. unregistered distribution Requires an effective shelf registration prior to transaction Pricing similar to public offerings RDs are similar to underwritten public offerings: Investor overlap (i.e, mutual funds, public cross-over investors, hedge funds, etc.) Similar documentation, due diligence Pricing similar to (or sometimes better than) public offerings Shares immediately available for resale “Best efforts” vs. “firm commitment” Generally no public announcement until commitments are in place to close the offerings Offering terms (shares, pricing, etc.) not filed before marketing Confidential marketing Generally limited distribution Research not required / necessary RDs are dissimilar to underwritten public offerings: RDs are dissimilar to PIPEs: MORRISON & FOERSTER LLP CAPITAL MARKETS

26 26 Securities Exchange Requirements MORRISON & FOERSTER LLP CAPITAL MARKETS

27 27 Considerations for issuers NASDAQ Rule 5635(c) (other exchanges have similar rules) requires shareholder approval for certain types of transactions:  Issuances that may exceed 20% of the pre-transaction total shares outstanding (“TSO”) or voting power that are priced at less than greater of book or market value.  Sales by officers and directors are aggregated with those issued by the company.  “Market price” is the closing bid price on the date immediately preceding the date of execution of binding agreements. MORRISON & FOERSTER LLP CAPITAL MARKETS

28 28 Issuances that may exceed 20% of the TSO or voting power if made in connection with the acquisition of stock of another company.  This applies to both above and below market issuances. Issuances that may result in a change of control.  If a transaction results in an investor (or group of investors) obtaining a 20% interest, or the right to acquire such an interest, the transaction likely is a change of control for 20% rule purposes.  There is an exception for pre-existing control positions. Considerations for issuers (cont’d) MORRISON & FOERSTER LLP CAPITAL MARKETS

29 29 NASDAQ will consider the following factors in aggregating private placement transactions for purposes of the 20% rule:  Timing of the issuances;  Commonality of investors;  Existence of contingencies between the transactions;  Similarities between deal structures;  Commonalities as to use of proceeds; and  Timing of the board of director approvals. Considerations for issuers (cont’d) MORRISON & FOERSTER LLP CAPITAL MARKETS

30 30 Rule 5635(c) applies to issuances of equity securities and any security convertible into or exercisable for equity securities. Issuers and placement agents must be cautious of the impact of warrants.  Blended average test: if the common stock portion alone is less than the applicable threshold and is priced below the greater of market and book value, but the deal includes warrants that push the offering over the threshold, shareholder approval is required unless the warrants are issued at or above market and are not exercisable for at least six months (the warrants are excluded from the calculation).  1/8 test: if the common stock portion alone is more than the applicable threshold, NASDAQ will attribute at least $0.125 in value to the purchase of the unit for each share purchasable by a warrant, regardless of whether the exercise price exceeds the market price. Considerations for issuers (cont’d) MORRISON & FOERSTER LLP CAPITAL MARKETS

31 31 Rule 5635(c) does not apply to “public offerings.” An issuer may avoid triggering the 20% rule by implementing a share cap, or pricing floor.  The cap or floor must remain in place for the life of the security or until shareholder approval is obtained.  Caps cannot contain penalty provisions or “sweeteners,” which are triggered on the outcome of the vote. Considerations for issuers (cont’d) MORRISON & FOERSTER LLP CAPITAL MARKETS

32 32 At-the-Market Offerings MORRISON & FOERSTER LLP CAPITAL MARKETS

33 33 An offering of securities into an existing trading market at the publicly available bid price, rather than at a fixed or negotiated price. Commonly referred to as “equity distribution” or “equity dribble out” programs. Shares are “dribbled out” to the market over a period of time at prices based on the market price of the securities. The number of shares sold in any single offering is not considered significant relative to the public float or daily trading volume. Do not involve any special selling efforts. What is an at-the-market offering? MORRISON & FOERSTER LLP CAPITAL MARKETS

34 34 Compare to traditional follow-on At-the-Market Offering A continuous offering. Shares are dribbled out. Sold on an agency basis through one or more placement agents, or on a principal basis. Issuer determines timing, amount, floor price and duration of any issuance. Quiet sales eliminate “front running.” Follow-on Offering A “bullet” or single offering. Shares are sold all at once. Sold as principal through a syndicate of underwriters. The timing and size of issuance is based on demand. Investors can “front run” the offering. MORRISON & FOERSTER LLP CAPITAL MARKETS

35 35 Market for ATMs EDPs have become more common. In 2008 and 2009, a number of large, WKSI issuers conducted successful at-the-market offerings:  Carnival Corporation;  Ford Motor Company;  Freeport-McMoRan; and  Financial institutions, including Bank of America, KeyCorp and SunTrust. MORRISON & FOERSTER LLP CAPITAL MARKETS

36 36 Shelf Registrations MORRISON & FOERSTER LLP CAPITAL MARKETS

37 37 Previously, an issuer needed a $75 million public equity float in order to use these forms for a primary offering. Conditions:  Issuer must satisfy the other form requirements.  Issuer is not, and has not been for at least 12 months before filing, a “shell company.”  Issuer must have a class of common equity listed on a national securities exchange. (i.e., not the OTC-BB or the “pink sheets”)  Issuer does not use Form S-3 to sell, in any 12-month period, more than one-third of its public equity float. Forms S-3 and F-3 Available for Primary Offerings by Smaller Reporting Companies MORRISON & FOERSTER LLP CAPITAL MARKETS

38 38 Permits shelf-takedowns in primary offerings under Rule 415. Incorporation by reference of periodic reports filed after the effective date of the registration statement – no need to file post-effective amendments to reflect new business and financial developments. Historically, the SEC Staff has been less likely to review, and comment on, short-form registration statements than long forms. No SEC review of documents for a specific take-down. In short, Forms S-3 and F-3 provide quicker access to capital when a “market window” is open. Why Is Form S-3/F-3 Eligibility Important to Smaller Issuers? MORRISON & FOERSTER LLP CAPITAL MARKETS

39 39 Use of Shelf Registration Statements and Shelf Takedowns Has Increased in Recent Years According to Thomson, in 2002, 1,583 shelf registrations were filed raising $1.86 billion in offering proceeds. Thomson reports that 2,264 shelf takedowns were completed raising $581 million. In 2007, Thomson reports that 1,997 shelf registrations were filed raising $3 billion in proceeds. Thomson reports that 1,142 shelf takedowns were filed in 2007 and raised $831 million in offering proceeds. MORRISON & FOERSTER LLP CAPITAL MARKETS

40 40 According to Dealogic, shelf takedowns accounted for $71.3 billion in 2007, or 66% of SEC registered follow on offerings. According to Dealogic, preliminary 2008 numbers show that shelf takedowns accounted for $149.2 billion, or 74% of SEC registered follow on offerings. Thomson’s preliminary 2008 numbers report that 1,522 shelf registrations were filed raising $1.55 billion in proceeds. Thomson’s preliminary 2008 numbers for shelf takedowns show 942 shelf takedowns accounted for $857 million in proceeds. The Use of Shelf Registration Statements and Shelf Takedowns Has Increased in Recent Years MORRISON & FOERSTER LLP CAPITAL MARKETS

41 41 June 2007 proposing release initially proposed a limitation of 20% during any one-year period. Commentators objected strongly, and the SEC increased the limitation to 1/3. Companies that exceed the 1/3 cap under Form S-3 or F-3 can still complete offerings using a form such as Form S-1/F-1, or in unregistered (exempt) transactions. Limitation of Sales Equal to 1/3 of Public Float During Any 12-Month Period MORRISON & FOERSTER LLP CAPITAL MARKETS

42 42 Public equity float may be based upon any date during the 60 calendar trading days prior to the proposed sale.  Similar to the previous requirement for S-3/F-3 eligibility, except that it relates to the “time of sale,” as opposed to the “time of filing.” The price of all securities sold under the Form in the previous 12 months, including those subject to the new sale, will be used to determine whether the 1/3 cap has been exceeded. As a result of this method, it is possible that an issuer’s capacity may increase or decrease, as the market price of its shares increases or decreases. The relevant prospectus supplement will be required to disclose the calculation on the front cover. Calculation of the 1/3 Limitation MORRISON & FOERSTER LLP CAPITAL MARKETS

43 43 Although the 1/3 cap will limit actual sales, smaller reporting companies can register an amount of securities that exceeds this amount. Any unused amount may be “rolled over” into subsequent shelf registration statements, for purposes of calculating the required filing fee. Smaller reporting companies, unlike WKSI’s, are not entitled to use the “pay-as-you-go” system for the SEC registration fee. Relationship of 1/3 Cap to Size of Shelf MORRISON & FOERSTER LLP CAPITAL MARKETS

44 44 The 1/3 cap will be removed from an issuer if its public float exceeds $75 million after the effective date of the registration statement. However, if the public float of such a company falls below $75 million at the time that it files its next annual report, the cap will be reimposed. Contrast: companies that initially file at a time at which they satisfy the prior $75 million equity float for S-3/F-3 eligibility will not be subject to the 1/3 cap, even if their public float declines to less than $75 million after the effective date. (As per the existing rules.) Possible Removal of the 1/3 Limitation due to Increased Public Float MORRISON & FOERSTER LLP CAPITAL MARKETS

45 45 Contemporaneous offerings There may be smaller issuers that may choose to consider a take-down off of a shelf (subject to the 1/3 cap) AND a contemporaneous exempt offering  offering conducted in reliance on Reg S; or  offering only to QIBs (in reliance on no-action letter guidance); or  offering that is exempt from registration in reliance on 4(2) and/or Reg D. Considerations MORRISON & FOERSTER LLP CAPITAL MARKETS

46 46 Amendments to Rule 144 and Rule 145 MORRISON & FOERSTER LLP CAPITAL MARKETS

47 47 Restricted Securities Restricted securities are securities that have been acquired in transactions exempt from the registration requirements of Section 5 of the Securities Act. Includes, among other things:  Pre-IPO stock;  Stock issued in private placements; and  Rule 144A securities. Rule 144 permits the resale of restricted securities, subject to certain conditions, without registration under Section 5. MORRISON & FOERSTER LLP CAPITAL MARKETS

48 48 Rule 144 provides a non-exclusive safe harbor under Section 4(1) for selling securityholders that seek to resell their restricted securities. A selling securityholder that complies with Rule 144 will not be deemed to be engaged in a “distribution” of securities and, therefore will not be considered an underwriter. Restricted Securities (continued) MORRISON & FOERSTER LLP CAPITAL MARKETS

49 49 Shorter, six-month holding period for public securities. One-year holding period for non-public securities. Non-affiliates have fewer sales limitations. Debt securities will no longer be subject to the manner of sale restrictions. Form 144 filing requirements are simplified and reduced. Rule 145 has been revised, eliminating the “presumptive underwriter” rule, except for transactions involving shell companies. Rule 144/Rule 145 Amendments - An Overview MORRISON & FOERSTER LLP CAPITAL MARKETS

50 50 Regulatory Environment MORRISON & FOERSTER LLP CAPITAL MARKETS

51 51 Regulatory considerations SEC enforcement actions against hedge funds SEC investigation of prime brokers “reserving” borrow for hedge fund participants in PIPEs SEC comments relating to small-cap companies in PIPEs that result in a substantial increase in total shares outstanding MORRISON & FOERSTER LLP CAPITAL MARKETS

52 52 PIPE enforcement actions Stemmed from SEC hedge fund investigation Involve three basic findings:  Insider trading: hedge funds that traded in possession of material non-public information (prior to a PIPE being publicly announced)  Shorting: naked shorting, shorting using Canadian brokers and covering shorts with PIPE stock  Market manipulation: engaging in sham transactions to drive down price or affect volume in PIPE stock MORRISON & FOERSTER LLP CAPITAL MARKETS

53 53 PIPE enforcement actions (cont’d) The SEC has suffered some recent set backs in the PIPEs cases  SEC v. Mangan  SEC v. Lyon (Gryphon Capital)  SEC v. Berlacher Likely to result in additional SEC guidance on short sales MORRISON & FOERSTER LLP CAPITAL MARKETS

54 54 Best Practices and Areas of Risk for Unannounced Financings MORRISON & FOERSTER LLP CAPITAL MARKETS

55 55 Actively managing the process with an eye on best practices will mitigate risk Step OneStep TwoStep ThreeStep Four Closing, Settlement & Funding  PA closes the transaction Manage trade settlement process Document and close Assure timely transfer of funds and securities Execution & Placement  PA manages the execution and placement process Elicit timely indications of interest Supervise and streamline investor due diligence, if any Negotiate pricing and terms Coordinate legal opinions, comfort letter and closing deliveries Secure investor commitments; announce deal through a press release Marketing  PA conducts the marketing process Market through trained sales force Target investor group Focus on know-your- customer obligations Arrange investor conference calls Preparation, Analysis & Due Diligence for the Transaction  PA advises and prepares the Company Conduct organizational meeting Watch list Prepare offering materials and documentation Prepare script and/or NDA Conduct due diligence Establish investor targets MORRISON & FOERSTER LLP CAPITAL MARKETS

56 56 Unannounced financings in a Reg FD world  Omnibus confidentiality agreements  Transaction-specific confidentiality agreements  PIPE/registered direct scripts  Restricted lists  Chinese Walls/Information Walls Best practices and areas of risk MORRISON & FOERSTER LLP CAPITAL MARKETS

57 57 Marketing practices  Who markets PIPEs and registered directs within the institution?  What training and supervision do the groups marketing PIPEs and registered directs receive?  What materials are sent to potential purchasers and by whom?  How are reverse inquiries handled?  Do non-deal roadshows still exist? MORRISON & FOERSTER LLP CAPITAL MARKETS

58 58 Material non-public information What information is being shared with potential purchasers? What is the anticipated duration of the marketing period? When will information shared with potential purchasers be publicly disclosed? When will the information become stale?  Covenant to file an 8-K  “Standstill” agreement MORRISON & FOERSTER LLP CAPITAL MARKETS

59 59 Pre-marketing public offerings Assumes that the issuer already has an effective shelf registration statement  Will the eventual offering be a public or a private offering?  Is the issuer’s disclosure grid current? is it necessary to file updated risk factors? is it necessary to provide guidance on the current quarter? on write-downs? On anticipated ratings actions?  What is the best approach for doing so (if needed)? MORRISON & FOERSTER LLP CAPITAL MARKETS

60 60  Plan ahead all of the required (or desired) filings (e.g., these may include: 8-K, preliminary prospectus supplement or FWP, term sheet, press release, final prospectus supplement) Issuer’s internal policies and procedures  Consider communications/Reg FD policy  Trading windows  Insider participation Pre-marketing public offerings (cont’d) MORRISON & FOERSTER LLP CAPITAL MARKETS

61 61 From the financial intermediary’s perspective: Consider length of the marketing process Who will be involved in the marketing effort? (consider “Best Practices”) Trading lists Selling restrictions Confidentiality agreements Pre-marketing public offerings (cont’d) MORRISON & FOERSTER LLP CAPITAL MARKETS


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