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Securities Offerings 2017: a Public Offering: How It Is Done

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Securities Offerings 2017: a Public Offering: How It Is Done CORPORATE LAW AND PRACTICE Course Handbook Series Number B-2305 Securities Offerings 2017: A Public Offering: How It Is Done Chair LizabethAnn R. Eisen To order this book, call (800) 260-4PLI or fax us at (800) 321-0093. Ask our Customer Service Department for PLI Order Number 186206, Dept. BAV5. Practising Law Institute 1177 Avenue of the Americas New York, New York 10036 Copyright © 2017 by Practising Law Institute. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of Practising Law Institute. 978-1-4024-2859-3 PLI Course Handbook Usage Policy The Practising Law Institute publishes over 200 Course Handbooks each year. The primary function of each Course Handbook is to serve as an educational supplement for each program and to provide practical and useful information on the subject matter covered to attorneys and related professionals. The printed and/or electronic copy of the Course Handbook each attendee and faculty member receives is intended for his or her individual use only. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a professional should be sought. Distribution of the Course Handbook or individual chapters is strictly prohibited, and receipt of the Course Handbook or individual chapters does not confer upon the recipient(s) any rights to reproduce, distribute, exhibit, or post the content without the express permission of the authors or copyright holders. This includes electronic distribution and downloading of materials to an internal or external server or to a shared drive. If a firm or organization would like to arrange access for a wider audience, printed copies of the Course Handbook are available at http://www.pli.edu. In addition, PLI offers firm or company- wide licensing of our publications through our eBook library, Discover PLUS. For more information, visit http://discover.pli.edu. The methods of reproduction, both print and electronic, were chosen to ensure that program registrants receive these materials as quickly as possible and in the most usable and practical form. The Practising Law Institute wishes to extend its appreciation to the authors and faculty for their contributions. These individuals exemplify the finest tradition of our profession by sharing their expertise with the legal community and allied professionals. Prepared for distribution at the SECURITIES OFFERINGS 2017: A PUBLIC OFFERING: HOW IT IS DONE Program New York City, March 3, 2017 CONTENTS: PROGRAM SCHEDULE ........................................................................... 7 FACULTY BIOS ...................................................................................... 13 1. The Statutory Arrangement for Public and Private Securities Offerings Under the Securities Act of 1933 (December 1, 2015) ........................................................................ 33 John W. White William P. Rogers, Jr. William J. Whelan III LizabethAnn R. Eisen D. Scott Bennett Kimberley S. Drexler Sophia Tawil Cravath, Swaine & Moore LLP 2. “JOBs Act 2.0” Amendments to the Securities Laws (December 14, 2015) .................................................................... 119 William P. Rogers, Jr. William J. Whelan III LizabethAnn R. Eisen D. Scott Bennett Cravath, Swaine & Moore LLP 3. Underwriting Arrangements and Documents ................................ 129 David K. Boston Willkie Farr & Gallagher LLP 4. Appendix A: Underwriting Agreement ........................................... 167 David K. Boston Willkie Farr & Gallagher LLP 5. Appendix B: Agreement Among Underwriters .............................. 217 David K. Boston Willkie Farr & Gallagher LLP 5 6. Appendix C: Master Agreement Among Underwriters .................. 241 David K. Boston Willkie Farr & Gallagher LLP 7. Appendix D: Selected Dealer Agreement ..................................... 265 David K. Boston Willkie Farr & Gallagher LLP 8. Lawyers as Gatekeepers in the Underwriting Process (March 2017) ................................................................................. 275 Sophia Hudson Davis Polk & Wardwell LLP INDEX ................................................................................................... 313 Program Attorney: Willis Goodmoore 6 Program Schedule 7 8 SecuritiesOfferings2017:APublicOffering:HowItIsDone NewYorkCity,March3,2017 LiveWebcast,www.pli.edu,March3,2017 ProgramSchedule 9:00 IntroductiontotheLawofSecuritiesOfferings x Understandthelegalframeworkforsecuritiesofferingsunder theSecuritiesAct,includingdefinitionsandregulationsof “offers”and“sales”of“securities” x Understandthedifferenttypesofissuersrecognizedunder theSecuritiesActforpublicofferingsandhowissuerstatus playsoutundertheSecuritiesAct D.ScottBennett,LizabethAnnR.Eisen,RobertEvansIII 10:00 WorkingEffectivelywiththeSEC:PreparingYour RegistrationStatement x Preparationoftheregistrationstatement x Discussionofregistrationprocess,includingSECreviewand commentprocess(includingthepublicpostingofthose commentsandprocessesforrequestingconfidential treatmentofmaterialssenttotheSEC) x Substantivedisclosureandotherproblemareasrelevantto securitiesofferings x DiscussionofcurrentSECareasoffocusandimpactonthe registrationprocess D.ScottBennett,LizabethAnnR.Eisen,JosephH.Kaufman, PamelaA.Long 11:45 NetworkingBreak 12:00 ImportantFinancialStatements,AccountingDisclosuresand KeySecuritiesOfferingDocumentation x Discussionofthecriticalfinancialinformationthatformsthe backboneofdisclosuresinsecuritiesofferings,including annualfinancialstatements,interimfinancialstatements, management’sdiscussion&analysisandproformas x Substantivefinancialdisclosureandaccountingproblem areasrelevanttosecuritiesofferings x DiscussionofrulesonuseofnonͲGAAPmeasuressuchas EBITDA x Ethicalissuesinworkingwithaccountantsandother"experts D.ScottBennett,LizabethAnnR.Eisen,JosephH.Kaufman, NicoleJ.Pinder 1:30 LunchBreak 9 2:30 ImportantFinancialStatements,AccountingDisclosuresand KeySecuritiesOfferingDocumentation(Cont’d) • PreparationoftheUnderwritingAgreement,includingan analysisofthekeyprovisions •Behindthescenes:theagreementamongunderwriters— whatisitandhowdoesitwork? • WorkingwithFINRA,includingobtaininga“noobjections” letterinatimelymanner • NYSE/NASDAQlistingmechanics DavidK.Boston,LizabethAnnR.Eisen 3:15 NetworkingBreak 3:30 Ethics,DueDiligenceandtheOfferingProcess • Professionalliabilityprovisionsandremediesunderthe SecuritiesAct(MRPC1.13) • Importanceofethicsinduediligenceintheofferingprocess, includingcomfortletters,10bͲ5statementsandin Ͳhouse counselconsiderations(MRPC4.1) •Roleofparticipantsintheofferingprocess,includingavoiding ethicalpitfalls(MRPC4.1) • Ethicalissuesintheunderwritingprocess:Lawyersas gatekeepers(MRPC1.6) DavidK.Boston,LizabethAnnR.Eisen,RobertEvansIII,SophiaHudson, HannahG.Ross 5:15 Adjourn 10 Chair LizabethAnn R. Eisen Cravath, Swaine & Moore LLP New York City Faculty D. Scott Bennett Cravath, Swaine & Moore LLP New York City David K. Boston Willkie Farr & Gallagher LLP New York City Robert Evans III Shearman & Sterling LLP New York City Sophia Hudson Davis Polk & Wardwell LLP New York City Joseph H. Kaufman Simpson Thacher & Bartlett LLP New York City Pamela A. Long Assistant Director, Division of Corporate Finance U.S. Securities and Exchange Commission Washington, DC Nicole J. Pinder PwC New York City Hannah G. Ross Bernstein Litowitz Berger & Grossmann New York City 11 12 Faculty Bios 13 14 www.cravath.com LizabethAnn R. Eisen Partner, Corporate LizAnn Eisen is a partner in Cravath’s Corporate Department. Her practice Contact focuses on domestic and international T: +1 (212) 474-1930 corporate finance transactions, corporate F: +1 (212) 474-3700 Education governance and reporting matters and J.D. University of restructurings. Pennsylvania Law School, 1997 Ms. Eisen’s clients have included Amdocs, Flagstone B.A. Cornell University, 1994, Reinsurance Holdings, Mantis Vision, MIH Limited, magna cum laude Orbotech, Starbucks, Tengelmann, Unilever, Universal Orlando, UTi Worldwide, Weyerhaeuser and Xerox. Her Professional Affiliations work includes corporate reporting, governance and disclosure advice, securities offerings and mergers and American Bar Association acquisitions for these clients. In addition, she represents ● Federal Regulation of underwriters in IPOs, including for Amplify Snack Securities Committee Brands, Francesca’s Holdings, Global Brass and Copper ● NASD Corporate Financing and Tumi Holdings as well as in follow-on and secondary Rules Subcommittee offerings, including for Amplify Snack Brands, New York City Bar Association Cooper-Standard Holdings, Darling International, Francesca’s Holdings, Global Brass and Organizations Copper, Huntsman, Tumi Holdings and Metals USA, and in The Fresh Air Fund investment grade and high-yield debt offerings, including ● Vice President for Allegion, Chrysler, Dell, Entegris, Waterjet, Terex ● Board of Directors, Corp., Clear Channel Communications, Clear Channel Executive Committee Outdoor and Reynolds Group. Ms. Eisen’s recent M&A and President’s Council of Cornell acquisition financing work includes representing Goldman Women Sachs in connection with the bridge facility and debt 15 www.cravath.com offering for Fortis
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